DAN MORALES 

ATTORNEY GENERAL 

QMfice of tfie !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 

‘We nndemand “O.M.D.” to be an abbreviation for the tam “Oriental Medical Doctor.” 

aFor th poqmss of sobchaptu F, “acupmchue” meats: 

(A) the insertion of an acupraaun noodle and the application of 

mo~~ontospecificareasoftbchumanbodyaraprimarymodcofthcm~to 

tnat and mitigate s human condition; and 

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

rcconunendstion of dietary guidelines, energy flow exercise, or dietary or h&al 

sopplcmcnts in conjunction with the treatment described by Paragraph (A) of this 

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,” u establish 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., 13 1 

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 for a license lo practice 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. 1780 
Bruce 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 6.1 l(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. 8 4(b)(9). 

‘We understand, for example, that the board recently has pronmlgated a mle adopting the title 

“Licensed Acopunctmist” or “L.Ac.” 

‘%u attorney qnesenting UK Texas Acuponcbue Association cammenu in his brief that article 

4S12p, V.T.C.S., fails to defii the term “health professions” and suggests what, therefore, acupunchvists 

are not within Ihe scope of article 4512~. We disagree. The He& Professions Coon& is composed of 

rqmsenta~ of each of 14 differe-nt bodies the Texas Board of Chiropractic Examioea; the State 

Board~DcntalExaminas;tbcTrrasOptomctryBoard;theStatcBoardofPharmacy;thcTexasState 

BoardofPod&yE-; the State Board of Veknary Medical E-; the Texas State Board of 

IHedicalExamiws; theBoardofNor6eExsmino~; the Texas State Board of Examiners of Psychologists; 

the Board of Vocational Norse Examioers; the entity that tqulates the pmetiee of physical thempy; the 

entity that regulatea the pmctice of occupational theraw, the health licensing division of the Depamnent 

of Public Health, aad the governor ‘I of&. V.T.C.S. an. 4512~; p l(b). la OUT opinion, article 4512~ 

V.T.C.S., applis to all individuals licensed and regulated by the first 13 of the above-lisled agencies. See 

id. $5 3(a) (rapirhg Health Professions carncil to csWi.41 training program for ?he members of the 

hcards and eommis.sions” listed), 4(a) (authoting “appropriate h&h licensing agency” to sanction 

individoals who engage in @se, misleading, or deceptive adverdsing). The Board of Medicine licenses 

and K~UWS acupmcturists. See V.T.C.S. art. 4495b. $0 6.0X9), .06. Con?eqoenIly, aarpuncturisls are 

within the aeope ofarlicle 4512~. 

p. 1781 
Bruce 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, section 2 de&es “the healing art” to include -any system, nvatment, eperatioa 

diagncsis, prescription or practice for the ascacainment, cure, relief, palliation, adjustment or correction 

of any human disease, ailment, deformity, injury or unhealth or abncrraal physical or mental condition.” 

We assume form of this opinion that sn acupunaurin is a practitioner of the healing an. 

p. 1782 
Bruce 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 19 Tex 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. 

Clliropocric Sbc ‘y Y. Texas Bd. of Chimpmdic Ewniturs, No. 94-08315 (D&t. Ct. of Travis County 

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. 1783 
Bruce 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 expressly or 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. 1784 
Bruce 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 6.1 l(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. 1785 
Bruce 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