, 

December 12, 1988 

Honorable Brad Wright 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 Representative Wright: _ 

You ask about the provision in article 4551f, V.T.C.S., 

which requires dental laboratories doing business in Texas 

to register with the Board of Dental Examiners. We find 

nothing in the United States Constitution or any of the 

legislative acts of the federal congress which would place 

such a provision beyond the powers of the legislature. 

The 70th Legislature amended the relevant part of 

article 4551f, section 6, V.T.C.S., to read: 

It shall be the duty of the owner or manager 

of each dental laboratory to annually apply 

to and register each dental laboratory doins 

business in this State with which that person 

has any connection or interest with 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. (Emphasis added.) Prior law 

limited the registration requirement to 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 

"regulate commerce 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 application of the Supremacy Clause, permits the 

federal government to preempt by specific legislation state 

P. 5074 
! 

Honorable Brad Wright - Page 2 (JM-992) 

regulations which are contrary to the goal of providing a 

uniform, non-discriminatory national marketplace for goods 

and services. See aenerallv Rotunda, 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 decisions which expressly deny to 

the states the power to adopt legislation regulating 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-state businesses. As the authors of 

a leading treatise on constitutional law note: 

[T]he text of the commerce clause provides 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 legislation by the 

national government, the courts must define the proper 

contours of acceptable state regulation of interstate 

commerce. First, they recognize that the states may apply 

some regulation to interstate commerce in order to protect 

the health and safety of their citizens. See. e.a., Willson 

V. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (.1829). 

In every case where the courts examine actions taken 

by states ostensibly to protect their citizens, they are 

concerned chiefly with whether the exercise of state power 

affects both local and interstate interests equally, so as 

to negate the possibility that the use of the police power 

is in fact a disguised mechanism to give unfair advantage to 

home-state commercial interests. S . a Navaio 

Freiaht Lines. Inc., 359 U.S. 520 e:19&;1R::::d:; Nowak, 

and Young, sunra, 5 11.6, at 590-593. See also Dowling, 

Interstate Commerce and State Power, 27 Va. L.Rev. 1 (1940). 

In the statutory provision 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. 

P. 5075 
Honorable Brad Wright - Page 3 (JM-992) 

Finally, in the absence of both a federal statute 

preempting a state regulation and an overtly discriminatory 

purpose in the state law, the courts will apply the 

following factors to determine the constitutionality of 

state regulation challenged under 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 local benefits. If a legitimate 

local purpose is found, then the question 

becomes one of degree. And the extent of 

the burden that will be tolerated will . . . 

depend on the nature of the local interest 

involved, and whether it could be promoted as 

well with a lesser impact on interstate 

activities. (Citation omitted.) 

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). See 

also Eule, Lavina the Dormant Commerce Clause to Rest, 91 

Yale L.J. 425 (1982); Maltz, Bow Much Reaulation iS Too 

Much -- An Examination of Commerce Clause Jurisnrudence, 50 

Geo . Wash. L.Rev. 47 (1981). 

Although a final, definitive answer to your question is 

available only in the federal courts, we are confident that, 

on its face, section 6 of article 4551f is a legitimate 

exercise of state power. 

SUMMARY 

The state may regulate interstate commerce in the interest of protecting the 

health and welfare of its citizens. In the 

absence of federal legislation preempting 

state regulation of a given area, the courts 

will examine the exercise by the state of its 

police powers for evidence of a discriminatory purpose and a real relationship to a 

legitimate state purpose. 

JIM MATTOX 

Attorney General of Texas 

p. 5076 
Honorable Brad Wright - Page 4 (JM-992) 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by D. R. Bustion, II 

Assistant Attorney General 

p. 5077