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December 12, 1988

Honorable BradWright **Opinion NO.**  JM-992 Chairman Public Health Committee Re: Constitutionality of Texas House of Representatives an amendment to article P. 0. Box 2910 4551f, V.T.C.S., which Austin, Texas 78769 requires dental laboratories doing business in Texas to register with the Board of Dental Examiners (RQ-1571)
Dear RepresentativeWright: _ You ask about the provision in article 4551f,V.T.C.S., which requires dental laboratories doingbusiness in Texas to registerwith the Board of Dental Examiners. We find nothing in the United States Constitution or any of the legislativeacts of the federal congresswhich would place such a provisionbeyond the powers of the legislature. The 70th Legislature amended the relevant part of article 4551f, section 6,V.T.C.S., to read:

It shallbe the duty of the **owner** or manager of each dental laboratoryto annually apply to and register each dental laboratory doins business in this Statewith which thatperson has any connectionor interestwith the Texas State Board of Dental Examiners

. . . . V.T.C.S. art 4551f, 5 6(a),as amended by Acts 1987, 70th Leg., ch. 1095, 5 2, at 3714. (Emphasisadded.) Prior law limited the registrationrequirementto dental laboratories located in the state and did not reach out-of-state laboratories doina business in the state. You ask whether the power of the federal congress to "regulatecommerce among the several states"prohibits such state regulation. & U.S. Const. art. I, 5 8, cl. 3. The Commerce clause of the Federal Constitution, through the applicationof the Supremacy Clause,permits the federalgovernment to preemptby specific legislation state

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regulationswhich are contrary to the goal of providing a uniform, non-discriminatorynational marketplace for goods and services. See aenerallvRotunda, Nowak, and Young, Treatise on **COnStitUtiOnal** Law: Substance and Procedure 5 11.1, at 579. In the case at hand, we can find no federal legislation or judicial decisionswhich expressly deny to the states the power to adopt legislationregulating the operation of dental laboratories. If there is no preemption of state power, then the courts examine the state law for evidence of discrimination aimed solely at out-of-statebusinesses. As the authors of a leading treatise on constitutional law note:

[T]hetext of the commerce clauseprovides no overt restraint of state impingement of interstate commerce in the absence of Congressional legislation.It has been left to the [courts] to interpret,as inherent in that affirmative grant of power, selfexecuting limitations on the scope of permissible state regulation. Rotunda,Nowak, and Young, sunra, at 578. Thus, in the absence of preemptive legislationby the national government, the courts must define the proper contours of acceptable state regulation of interstate commerce. First, they recognize that the statesmay apply some regulation to interstate commerce in order to protect the health and safety of their citizens. See. e.a., Willson **V.** Blackbird CreekMarsh Co., 27U.S. (2Pet.) 245 (.1829).
In every case where the courts examine actions taken by states ostensibly to protect their citizens, they are concerned chieflywith whether the exercise of state power affectsboth local and interstate interestsequally, so as to negate the possibility that the use of the police power is in fact a disguisedmechanism to give unfair advantage to home-state commercial interests. S
. a Navaio Freiaht Lines. Inc., 359U.S. 520 e:19&;1R::::d:; Nowak, and Young, sunra, 5 11.6, at 590-593. See also Dowling, Interstate Commerce and State Power, 27Va. L.Rev. 1 (1940).
In the statutoryprovision at hand, it is important to note that the registration provisions apply to dental laboratories located both within and without the state. Thus, as provided for in the statute, the requirement does not discriminate against national interests.

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Finally, in the absence ofboth a federal statute preempting a state regulationand an overtly discriminatory purpose in the state law, the courts will apply the following factors to determine the constitutionality of state regulation challengedunder the commerce clause:

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative localbenefits. If a legitimate localpurpose is found, then the question becomes one of degree. And the extent of the burden thatwill be tolerated will

. . . depend on the nature of the local interest involved,andwhether it couldbe promoted as well with a lesser impact on interstate activities. (Citationomitted.) Pikev. Bruce Church, Inc., 397U.S. 137, 142 (1970). See also Eule, Lavina the DormantCommerce Clause to Rest, 91 Yale L.J. 425 (1982); Maltz, Bow Much Reaulation **iS** Too Much --An Examination of Commerce ClauseJurisnrudence, 50 Geo
.Wash. L.Rev. 47 (1981). Although a final,definitiveanswer to your question is available only in the federalcourts,we are confident that, on its face, section 6 of article 4551f is a legitimate exercise of statepower.SUMMARY

The statemay regulate interstate commerce in the interest of protecting the health andwelfare of its citizens. In the absence of federal legislation preempting state regulationof a given area, the courts will examine the exerciseby the state of its police powers for evidence of a discriminatory purpose and a real relationship to a legitimate statepurpose.

JIM MATTOX Attorney General of Texas

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MARY KELLER FirstAssistant Attorney General LOU MCCREARY ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAKLKY SpecialAssistantAttorney General
RICK GILPIN Chairman, Opinion Committee Preparedby D. R. Bustion, II AssistantAttorney General

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