DAN MORALES

ATTORNEY GENERAL 

# QMfice

oftfie !ZlttIttornep Qhmeral &ate of PCexas

March 21.1995
Bruce A. Levy, M.D., J.D. Executive Director Opinion No. DM-336

Texas State Board of Medical Examiners P.O. Box 149134 Austin, Texas 78714-9134 Re: Whether the Texas State Board of Acupuncture Examiners may promulgate a rule authorizing acupuncturists to hold themselves out as “doctor,” “Oriental Medical Doctor.” or ‘O.M.D.” and related questions (RQ-748) DearDr.Levy:
You ask whether the Texas State Board of Acupuncture Examiners (the “board”) may promulgate a rule authorizing acupuncturists to hold themselves out as “doctor,” “Oriental Medical Doctor,” or “0.M.D.“’ Conversely, you ask whether the board may, by rule, limit acupuncturists’ use of such designations. Fiiy, you ask if regardless of whether the board promulgates rules approving or limiting the titles an acupuncturist may use, an acupuncturist may denominate himself or herself as a “doctor,” “Oriental Medical Doctor,” or “O.M.D.”

Your questions tirst require that we examine subchapter F of the Medical Practice Act, V.T.C.S. art. 4495b. The legislature added subchapter F to the Medical Practice Act in 1993, see Act of May 30, 1993, 73d Leg., ch. 862, 8 37, 1993 Tex. Sess. Law Serv. 3377,3403-06, to provide “an orderly system of regulating the practice of acupuncture.“2 V.T.C.S. art. 449Sb, 8 6.01(2). Subchapter F creates the board, see 

### id. 5 6.04(a), and provides it with certain powers and duties, see 

### id. 5 6.05. Specifically, “[slubject to the advice and approval of the” Texas State Board of Medical Examiners, the board is required to, among other things, “establish qualiications for an acupuncturist to practice

‘Wenndemand“O.M.D.” tobeanabbreviation

forthetam “Oriental

Medical Doctor.”
aFor th poqmss ofsobchaptuF, “acupmchue”meats: (A) the insertion of an acupraaun noodle and the application of mo~~ontospecificareasoftbchumanbodyaraprimarymodcofthcm~to tnat andmitigate

s humancondition;

and (B) the administmtion of thamd or elcctricsl tttatmcnts or the rcconunendstion

ofdietary

guidelines,energyflow exercise,ordietary orh&al sopplcmcnts

in conjunction

withthetreatment

described byParagraph

(A)ofthis auhdksion. V.T.C.S.art.4495b.5 6.02(l).Bruce A. Levy, M.D., J.D. - Page 2 (DM-336)

in this state,” uestablish minimum educational and training requirements necessary for the acupuncture board to recommend that the medical board issue a license to practice acupuncture,” and “recommend additional rules as are necessary for the administration and enforcement of this subchapter.” 

### Id. 5 6.05(a)(l), (2), (9). The statute explicitly withholds from the board the power to make rules independently. See 

### id. 4 6.05(b). Subchapter F &rther prohibits any individual from practicing acupuncture in the state unless the individual has obtained a license from the Texas State Board of Medical Examiners.3 

### Id. 8 6.06. Under s&ion 6.1 l(a)(7), the Texas State Board of Medical Examiners may deny an application for a license or, a&r notice and hearing, suspend, probate, or mroke a lice&e if the applicant or licensee holds himself or herself out “as a physician or surgeon or any combination or derivative of [these] terms” unless the Texas State Board of Medical Examiners has licensed the individual as a physician’ or surgeon.
An administrative agency may promulgate rules when a statute expressly authorizes it to do so or when implied authority is necessary to accomplish the purpose of the statute. Attorney General Opiion JM-1279 (1990) at 1 (citing Gerti v. Oat C&f&v. 

### &Loan Ass’n, 432 S.W.2d 

### 702 (Tex. 1968); 

### GuljLund Co. v.Atlantic Refining Co., 131 S.W.Zd 73 (Tex. 1939)). An agency may not, however, adopt rules that are unreasonable
or that exceed the powers delegated to the agency. 

### Id. (citing Gerti, 432 S.W.2d 702; 

### Raihad Comtn’n v. Sterling Oil & Refining Co., 218 S.W.Zd 415 (Tex. 1949)). Moreover, an agency may not adopt rules that are contrary to law, even though the matter is within the agency’s general regulatory field. 

### See Stale v. Jackson, 376 S.W.2d 341, 344-45 (Tex. 1964). Although article 4495b, subchapter F expressly precludes the board from promulgating rules, we believe its power to recommend rules is limited in accordance with these principles.
Article 4495b, section 6.05(g) provides the board with broad authority to recommend to the Texas State Board of Medical Examiners such rules “as are necessary for the administration and enforcement of’ subchapter F. We believe this authority is broad enough to permit the board to recommend to the Texas State Board of Medical Examiners rules authorizing acupuncturists to use certain titles. Bur cfl Letter Opinion 94-14 (1994) at 2 (cautioning that Polygraph Examiners Act, V.T.C.S. article 4413(29cc),

“does not appear to permit licensed polygraph examiners to refer to themselves as

‘licensed psychophysiologists”‘). Conversely, we believe the board may recommend a rule

‘Under subchapter F, tbc board does not issw lianrcs. Rathcr,thohcantmkcs mmwdations

on completed

applications

fora license

lopractice acuplnaurr ii%cdical Examha, which may isw such Ii-. Id. 65 6.05(a)(6), 6.10(a).tothcTcxasStateBard

‘Seaion 6.020 ddinos ‘physician” as “a licensee of the Texas State Board of Medical

p. 1780Bruce A. Levy, M.D., J.D. - Page 3 (DM-336)

limiting acupuncturists’ use of such titles.5 C$ Attorney General Opinion JM-1279 (1990) at 3 (concludiig that V.T.C.S. article 4512b, section 4(d) authorizes Texas Board of Chiropractic Examiners to use title “chiropractic physician”). Of course, the board may not recommend a rule authorizing an acupuncturist to use the title “physician” or “surgeon” or a combination or derivative of those terms. See V.T.C.S. art. 4495b, 5 6.1l(a)(7). Furthermore, the board may not recommend a rule that is contrary to other law. Liiewise, regardless of whether the board promulgates rules approving or limiting the titles an acupuncturist may use, an acupuncturist may not select a designation that contravenes article 4459b, section 6.1 l(a)(7) or any other law. You ask that we particulsrJy consider the impact of V.T.C.S. article 4512~ section 4(b)(9) and the Healing Art Identification Act, V.T.C.S. article 4590e.
Enacted in 1993, V.T.C.S. article 4512~ creates the Health Professions Council for the purpose of coordiiing the administrative and regulatory efforts of various medical boards in the state, inch&g the Texas Optometry Board, the State Board of Veterinary Medical Examiners, and the Texas State Board of Medical Examiners.6 V.T.C.S. art. 4512~ 5 l(a), (b); see Act of May 26, 1993, 73d Leg., ch. 669, art. 1, 1993 Tex. Sess. Law Serv. 2485, 2485-88. Article 4512p, section 4(a) declares unlawful and subject to action by the appropriate health hcensing agency as a ground for revocation or denial of a license “[a]dvertising that is false, misleading, or deceptive or that is not readily subject to veriftcation.” Among the acts subsection (b) of that section lists as constituting false., misleading, or deceptive advertising or advertising that is not readily subject to verification is Wvertising that

. . advertises or represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.” 

### Id. 84(b)(9).

‘We understand,

for example,thatthe boardrecently has pronmlgated

a mle adopting

the title “Licensed

Acopunctmist”

or“L.Ac.”
‘%u attorney

qnesenting UK

TexasAcuponcbue

Association

cammenuin his briefthatarticle 4S12p,V.T.C.S.,fails to defii theterm“health professions”

andsuggestswhat,

therefore, acupunchvists arenotwithin Ihescopeof article 4512~. Wedisagree. The He& Professions Coon& is composed

of rqmsenta~ of each of 14 differe-nt bodies the Texas Boardof Chiropractic Examioea; the State Board~DcntalExaminas;tbcTrrasOptomctryBoard;theStatcBoardofPharmacy;thcTexasState BoardofPod&yE-; the State Board ofVeknary Medical

E-; the TexasState Board of IHedicalExamiws; theBoardofNor6eExsmino~; theTexasState Board ofExaminers

ofPsychologists; the Boardof VocationalNorseExamioers; the entitythattqulates the pmetieeof physicalthempy; the entitythatregulatea

thepmcticeof occupational theraw, the healthlicensingdivisionof the Depamnent of PublicHealth,aad the governor ‘I of&. V.T.C.S.an. 4512~;p l(b). la OUT opinion, article4512~ V.T.C.S.,applis to all individuals licensedandregulated

bythefirst 13oftheabove-lisled agencies. See id. $5 3(a) (rapirhg Health Professions carncil to csWi.41 training program for ?he members

of the hcardsand eommis.sions” listed), 4(a) (authoting “appropriate h&h licensing agency”to sanction individoalswho engagein @se, misleading,or deceptive adverdsing). The Boardof Medicinelicenses and K~UWSacupmcturists.See V.T.C.S.art.4495b.$0 6.0X9), .06. Con?eqoenIly, aarpuncturisls

are withintheaeope

ofarlicle 4512~.

p. 1781Bruce A. Levy. M.D., J.D. - Page 4 (DM-336)

The Healing Art Identification Act, V.T.C.S. art. 4590e, provides certain titles that
an individual licensed to practice the healiig art7 must use. V.T.C.S. art. 4590e, 39 3-4. Healing art identifications Sec. 

### 3. Every person licensed to practice the healing art heretofore or hereat& by either the Texas State Board of Medical Examiners, the State Board of Dental Examiners, the Texas Board of Chiropractic Examiners, the Texas State Board of Examiners in Optometry, the State Board of Chiropody Examiners and the State Board of Naturopathic Examiners shah in the professional use of his
name on any sign, pamphlet, stationery, letterhead, signature, or on any other such means of professional identification, written or printed, designate in the manner set forth in this Act the system of the healing art which he is by his license permitted to practice. The following are the legally required identitications, one of which must be used by practitioners of the healing art: (1) If licensed by the Texas State Board of Medical Examiners
on the basis of the degree Doctor of Medicine: physician and/or surgeon, M.D.; doctor, M.D.; doctor ofmedicine, M.D.

. . . Other persons using title “doctor” 

### Sec. 4. Any person not otherwise covered by the provisions of this Act, and not given herein a means of identification shag, in using the title “doctor” as a trade or professional asset, or on any sign, pamphlet, stationery, letterhead, signature, or any other manner of professional identification, designate under what authority such title is used, or what college or honorary degree gave rise to its use, in the
same manner as practitioners of the healing arts are required under the Act to identify themselves. An individual who fails to comply with the manner of identification specified in the Healing Art Identification Act is guilty of a misdemeanor and subject to punishment. 

### Id. § 6.
We understand you implicitly to ask whether, by calling oneself “doctor,” “Chiental Medical Doctor,” or “O.M.D.,” an acupuncturist is subject to civil penalty under article 4512~ section 6. In our opinion, we must analyze the use of the title “doctor’

7Anicle 459Oe, section2 de&es “thehealingart” to include-any system, nvatment,eperatioa diagncsis, prescription

or practiceforthe ascacainment, cure,relief,palliation,adjustment or correction ofany humandisease,

ailment,deformity,

injuryor unhealthor abncrraalphysicalor mentalcondition.” Weassume

form ofthisopinionthat sn acupunaurinis a practitioner ofthehealingan.

p. 1782Bruce A Levy, M.D., J.D. - Page 5 (DM-336)

separately gem the use of the titles “Oriental Medical Doctor” and “O.M.D.” because the Healing Art Identitication Act explicitly discusses a healing art practitioner’s use of the title “doctor,” while no statute similarly discusses the other two proposed titles. In regard to the use of the title “doctor,” you suggest an inconsistency between article 4512~ and the Healing Art Identitication Act. Pumuant to the. Healing Art Identification Act, an individual licensed to practice the healing art whom the Healing Ait Identitication Act does not give a specitic title may use the title “doctor” if the individual designates “under what authority such title is used, or what college or honorary degree gave rise to its
use..
. .* On the other hand, you indicate that an acupuncturkt’s use of the title

“doctor” might be perceived as false, misleading, or deceptive advertising under article 4512p, section 4(b)(9) and thus subject to civil penalty under article 4512p, section 6. Comcidentally, one of the witnems who testified before the Senate Committee on Health and Human Services about the bii that, now enacted, is codified as article 4512~. V.T.C.S., spoke about a similar inconsistency involving what is now article 4512~. se&on 4(b)(9). Hearings on S.B. 674 Before. the Senate Comm. on Health & Human Servs., 73d Leg. (Apr. 30,1993) (tape available from !3enate Staff Saviccs) (testimony of Des Taylor, camseI for Texas Chimpm&c Assodation). The witness rekred to Attorney General Opinion JM-1279, in which this office consttued section 3 of the Dealing Art IddfiCatiOllACttOp&lllitIiCUlSeCS of the Texas Board of Chiropractic Eraminers to use thetitkuchiroprsdicp~~“solollgasthe~~alsoepgloyadoneof~etams listed in the Healing Art Identification Act 

### Id.; see .ako Attorney General Opiion m-1279 (1990) at 6. The witness suggested that a &mpractor who uses the tetm

“cfriropracticphysician”~bearbjedtoproseartion~falsqmisleading,ord~ whdsing under the proposed section 4(b)(9) of article 4512p.s Hearings on S.B. 674 BeforetlteSenateComm.onHealth&HumanSavs.,supra. Thekgiskumdidnot substaativeh, amend the proposed section 4(b)(9) subsequent to the witness’s testimony. Wedonotbelim,howeva,thatapractitionaofthehealingartwhousesthetitlc

“dodorinaccordancewiththsHeelingArtIdentificationActmaybeguiltyoffalse, m&ding, or deceptive adverbsing under article 4512~. section 4. Established rules of statutory construction constrain us to construe statutes harmoniously ifit is possible. See 

### Postell v. Skzte, 693 S.W.2d 462,464 (Tex. Grim. App. 1985) (quoting Gzuser v. Scaie.

%Venutethatthed&ic&cemtofTravisCumtyrweatlydcdanditwahdamletheTexasBmnl otchimpwctic~promulgatcd,~eTaasBoard~chiropraaic~19TarRcg.~33. o&pted 19Tex F&g.

4951(1994) (lobe cdi6ed as 22 TALC.0 80.2(a)(s), (6)),on the gmd ibat,as a msnu of lsw, the Bad of chiroprectic Exemhu~ m its authority in passing the rule. ClliropocricSbc ‘

y Y. Texas Bd. of Chimpmdic Ewniturs, No. 94-08315 (D&t.Ct. of TravisCounty 2OOthh1dicialDistofTexas,Dec 13,1994). ThemleaulhobdalicmseofthcBoardofchiroprsctc P u,usetbetitlcschimprado,dodordchimpractihD.C,doaor.D.C,chimpracticpbysidaa. oranyrkMtiveofthefustfourtitlc.s. TexasBcdofchiroprpd~Examinm. 19Tex.Rcg.2603. adoped 19 Tcx Reg.4951(1994).

P. 1783Bruce A Levy, M.D.. J.D. - Page 6 (DM-336)

624 S.W.2d 669 (Tex. App.-Beaumont 1981, no writ)); 2B NORMAN J. SINGER, STAIUTESANDSTATUT~RY~ONSIRUCTTON~~~.~~, at229-30(5thed.1992).
We believe we can construe article 4512~ section 4(b)(9) harmoniously with section 4 of the Healing Art Identitication Act. Article 4512p, section 4(b)(9) does not proscribe the use of a tide that the Healing Art Identitication Act explicitly authorims a pmctitioner to use. gather, we construe article 4512~ section 4(b)(9) as simihu to article 4561.10(19). V.T.C.S., which per&ins to applicants for and individuals who hold a Iicense to tit and diqense hearing instruments. Article 4566-1.10(19) authorizes the State Committee of Exsminers in the Fitting and Dispensing of Hearing Instruments to deny or revoke such a license ifthe applicant or Iicensee has used the terms

“doctor,” “audiologist,” “clinic,” %iinical audiologist,” “state hosed,” “state certitied,” “licensed hearing instrument dispenser,”

“board certified hearing instrument specialist,” “hearing instrument sped&t,” “ostilied hearing aid audiologist” or any other term, abbreviation, or symbol [so as to] falsely givefl the impression that: (A) a service isbeing provided by a person who is licensed or has been awarded a degree or tide; or (B)thepersonptwidingasenkhasbeenrecommendedbya H ww or kath providerI; Accordingly, we interpret article 4512~. section 4(b)(9) to prohii an individual from&ningtohim-orherseIfwithatitleindicathtgIicensure whentleilldiadbnot in fact licensed. For example, under articIe 4512p, section 4(b)(9), an individusd may not nfa to him- or herself as an “MD.,” see MoceZnch v. Wvsong, 680 F.2d 1062 (5th Cii. 1982);apasoa~tlicensedbytheStateBoardofDartalExaminasynotsdvatisc him-orhaselfasadentist;MdaaathletictrainanotlicensedbytheStateBoardof Podiatry Examiners may not advertise him- or hersdf as a podiatrist. Siiy, article 4512p,rtction4(bX9)~toaaimlividualwhoto~orhasdfwitha~e thatsuggeststheindividualhasbeenawardedadegreeortitlethatheorshedoesnot,in fhct$have.‘0
Section 4(b)(9) also expressly forbids the use of a tide or professional identification “that is 

### expresslyor commonly reserwd to or used by another profession.” (Emphasis added.) Section 4 of the Healing Art Identi6cation Act expresdy resewes to any practitioner ,of the healing art use of the tide “doctor,” so long as the practitioner designatestheauthoritybywhichheorsheusesthetitleorthe~Uegeorhonorarydegree thatgaverisetouseofthetitle. Weconcludethatanacupuncturistmayusethstitle

p. 1784Bruce A. Levy, M.D., J.D. - Page 7 (ou-336)

“doctor,” so long as the acupuncturist uses the title in accordance with section 4 of the Healing Art Identification Act. We do not believe, however, that the board may recommend to the Texas State Board of Medical Examiners a rule regarding an acupuncturist’s use of the tide “doctor” under the Healing Art Identitication Act; such a rule would not be “necessary for the administration and enforcement of’ subchapter F of the Medical Practice Act. See V.T.C.S. art. 4495b, 5 6,05(a)(9).

We next consider whether the board may recommend to the Texas State Board of Medical Fixminers a rule wncerning the use of the titles “Oriental Medical Doctor” and “O.M.D.” In conjunction with this issue, we consider whether an acupuncturist may, regardless of whether the board promulgates rules approving or limiting the titles an acupunchuist may use, refer to him- or herself as an “Oriental Medical Doctor” or “O.M.D.” You suggest that the use of these titles might mislead or tend to deceive the public because of the terms’ similadty to the titles “medical doctor” and “M.D.,” which licensees of the Texas Board of Medical Examiners use pursuant to section 3(l) of the Healing Art Identitkation Act. You believe that the use of these terms might, therefore, violate section 4(b)(9) of article 4512~ V.T.C.S.
As we have indicated, 

### see supra page 4, article 4512~ section 4(b)(9) prohibits only the use of a professional title that is “expressly or wmmonly reserved to or used by” members of another profession. We are unaware of any other profession whose members
are expressly or. commonly entitled to use the tides ‘Qiental Medical Doctor” or “O.M.D.” We think it more likely that an acupuncturist who uses the titles “Oriental Medical Doctor” or “O.M.D.” violates subsection (b)(S) of article 45 12~. section 4, which prohibits the use. of advertising that “causes wnfiuion or misunderstsndiig as to the credentials, education, or licensure of a health care professional.” However, whether the
use of such titles is, in fact, a violation of article 4512~ section 4 is a question involving the determination of fact issues and therefore is not amenable to the opinion process. 

### E.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2. Of course, we tind nothing that prohibits the board from recommending to the Texas Board of Medical Examiners a rule limiting acupuncturists’
use of the titles “Oriental Medical Doctor” and “O.M.D.”
SUMMARY Subchapter F of the Medical Practice Act, V.T.C.S. art. 4495b, authorizes the Texas State Board of Acupuncture Examiners to recommend to the Texas State Board of Medical Examiners rules authorizing acupuncturists to use certain titles. Conversely. the board may recommend a rule limiting acupuncturists’ use of such titles. Of course, pursuant to section 6.1l(a)(7) of the Medical Practice Act, the Texas State Board of Acupuncture Examiners may not recommend to the Texas State Board of Medical Examiners a rule authorizing an acupuncturist to use the title “physician” or

“surgeon” or a wmbiition or derivative of those terms, nor may the

p. 1785Bruce A. Levy, M.D., J.D. - Page 8 (DM-336)

board recommend a rule that is contrary to other law. Likewise, if, regardless of whether the board promulgates rules approving or limiting the titles an acupuncturist may use, an acupuncturist may not select a designation that contravenes article 4459b, section 6.1 l(a)(7)
or any other law.

A healing art practitioner’s proper use of the title “doctor” under section 4 of the Healing Art Identitication Act, V.T.C.S. article 459Oe, does not constitute a violation of V.T.C.S. article 4512p, section 4. An acupuncturist may use the title “doctor” in accordance with section 4 of the Healing Art Identitication Act. However, the board may not recommend to the Texas State Board of Medical Examiners a rule regarding an acupuncturist’s use of the title

“doctor.”
Whether an acupuncturist’s use of the titles “‘Oriental Medical Doctor” and “O.M.D.” would mislead or tend to deceive the public so as to violate article 4512p, section 4, for example, section 4(b)(5), is a question involving the determination of fact issues. The board may, of course., recommend to the Texas Board of Medical Bxaminers a rule limiting acupuncturists’ use of the titles “Oriental Medical Doctor” and “O.M.D.”

DAN MORALES Attorney General of Texas
JORGE VEGA Fi Ass&ant Attorney General
SARAH J. SHIRLBY Chair, Opiion Committee Prepard by Kmberly K. Oltrogge Assistant Attorney General

p. 1786