DAN MORALES 

4TTORSEY GEXERAL 

@ffice of tly ~ttornep @merat 

&ate of Qexae 

September 24,1992 

Clinton M. DeWolfe, O.D. 

Chairman 

Texas Optometry Board 

9101 Bumet Road, Suite 214 

Austin, Texas 78758 

Opinion No. DM-170 

Re: Construction of V.T.C.S. article 

45525.11 of the Texas Optometry Act, 

and related questions (RQ-396) 

Dear Dr. DeWolfe: 

You have asked us to construe V.T.C.S. article 4552-5.11(a) and (b) of the 

Texas Optometry Act (the act), V.T.C.S. article 4552-1.01 et seq., chapter 10. As 

background material, you provide a hypothetical set of facts. You state that the 

hypothetical facts are similar to an actual circumstance involving a particular 

optometrist practicing in the State of Texas, but you also state that the facts are not 

unique to this particular optometrist. The hypothetical situation you set forth is as 

follows: 

Dr. Smith (hypothetical name) is a licensed optometrist in 

the State of Texas. Dr. Smith and one other optometrist have 

formed a partnership (legal entity) for the practice of optometry 

and also for the sale and dispensing at retail of optometric 

goods’ at a given location in Texas. Dr. Smith and his partner 

are 100% owners of the office in which optometry is practiced 

and in which optometric goods are dispensed and sold ‘It retail. 

The partnership practices under a trade name or assumc,i name. 

Dr. Smith has similar partnerships for the practice of 

optometry and for the sale and dispensing at retail of 

ophthalmic goods at approximately fifteen (15) additional 

offices located throughout Texas. Each office practices under 

‘You have explained that you used the term “optometric goods” as a synonym for “ophthalmic 

goods.” 

p. 891 
Clinton M. &Wolfe, O.D. - Page 2 (~170) 

the same trade name or assumed name. With respect to each 

office, Dr. Smith has formed a partnership (legal entity) with 

one other different optometrist. In other words, Dr. Smith has a 

partnership interest in approximately fifteen (15) offices in 

Texas where ophthalmic goods are sold at retail. In addition, 

Dr. Smith has three locations in Texas where optometry is 

practiced and ophthalmic goods are sold and dispensed at retail 

which are 100% owned and operated by Dr. Smith, individually. 

Dr. Smith also has an ownership interest in a chain of stores 

where optical goods2 are dispensed and sold at retail. [Emphasis 

in original.] [Footnotes added.] 

You have informed us that you do not know whether Dr. Smith has actual 

partnership agreements with all of the other optometrists, or whether he has some 

other kind of investment arrangement with some of the other optometrists. Thus, 

you have not used the word “partnership” in its technical, legal sense, but simply to 

refer to any kind of arrangement whereby Dr. Smith has become a co-owner of a 

business where optometry is practiced and ophthalmic goods are sold. 

You believe that article 4552-5.11 of the act prohibits Dr. Smith from, among 

other things, controlling or attempting to control the professional judgment, manner 

of practice, or practice of an optometrist. Article 4552-5.11 states in pertinent part 

as follows: 

(a) Any person who is a manufacturer, wholesaler, or 

retailer of ophthalmic goods is prohibited from: 

(1) directly or indirectly controlling or attempting to control 

the professional judgment, the manner of practice, or the 

practice of an optometrist or therapeutic optometrist; or 

(2) directly or indirectly employing or hiring or contracting 

for the services of an optometrist or therapeutic optometrist 

if any part of such optometrist’s or therapeutic optometrist’s 

duties involve the practice of optometry or therapeutic 

optometry; or 

*oat have explained that you used the term ‘optical goods” as a syncqm for ‘ophthalmic 

w 

p. 892 
Clinton M. DeWolfe, O.D. - Page 3 (m17o) 

(3) directly or indirectly making any payment to an 

optometrist or therapeutic optometrist for any service not 

actually rendered. 

(h) For purposes of this section “controlling or ~attempting 

to control the professional judgment, the manner of practice, or 

the practice of an optometrist or therapeutic optometrist” shall 

include but not be limited to: 

(1) setting or attempting to influence the professional fees 

of an optometrist or therapeutic optometrist; 

(2) setting or attempting to influence the office hours of an 

optometrist or therapeutic optometrist; 

(3) restricting or attempting to restrict an optometrist’s or 

therapeutic optometrist’s freedom to see patients on an 

appointment bask, 

(4) terminating or threatening to terminate any lease, 

agreement, or other relationship in an effort to control the 

professional judgment, manner of practice, or practice of an 

optometrist or therapeutic optometrist; 

(5) providing, hiring, or sharing employees or business 

services or similar items to or with an optometrist or 

therapeutic optometrist; or 

(6) making or guaranteeing a loan to an optometrist or 

therapeutic optometrist in excess of the value of the 

collateral securing the loan. 

(c) It is the intent of the legislature to prevent 

manufacturers, wholesalers, and retailers of ophthalmic goods 

from controlling or attempting to control the professional 

judgment, manner of practice, or the practice of an optometrist 

or therapeutic optometrist, and the provisions of this section 

shall be liberally construed to carry out this intent. 

. . . . 

p. 893 
Clinton M. DeWolfe, O.D. - Page 4 (n++l70) 

(g) This section shall not apply where the mamrfacturer, 

wholesaler, or retailer of ophthalmic goods is a licensed 

optometrist, therapeutic optometrist, or physician or legal entity 

100 percent owned and controlled by one or more licensed 

optometrists, therapeutic optometrists, or physicians; however, 

the exception set forth in this subsection shall not apply where 

the optometrist, therapeutic optometrist, or legal entity has 

offices at more than three locations. 

The legislature amended article 4552-5.11 in 1981 to read substantially as it 

does now.3 See Acts 1981, 67th Leg., ch. 758, 9 2, at 2807-08. The legislature 

designed the 1981 amendment to prohibit “any person who is a manufacturer, 

wholesaler, or retailer of ophthalmic goods from controlling an optometrist, from 

hiring an optometrist to perform optometry and from paying for services not 

rendered.” House Comm. on Gov’t Organization, Bill Analysis, S.B. 109,67th Leg. 

(1981). Apparently, the legislature amended article 4552-5.11 in response to a 

common situation in which a mamrfacturer, a wholesaler, or a retailer of ophthalmic 

goods pressured an optometristi to recommend to the optometrist’s patients that 

they purchase certain ophthalmic products produced or sold by the manufacturer, 

wholesaler, or retailer. The Texas Optometry Act: Hearings on S.B. 109 Before the 

Senate Comm. on Hum. Res., 67th Leg. (Mar. 25, 1981) (statement of Larry 

Niemann, representative of and attorney for Texas Optometric Association) (copy 

on file with Senate Staff Services). For example, a manufacturer might offer an 

optometrist favorable lease terms on equipment or office space. Id. However, the 

contract between the manufacturer and optometrist would contain a provision 

authorizing the manufacturer to cancel the lease without cause upon thirty days 

notice. Id. In practice, the manufacturer would exercise the cancellation clause if 

the optometrist failed to charge fees that the manufacturer felt were “reasonable,” 

failed to keep hours the manufacturer “suggested,” or if a certain percentage of the 

3Prior to amendment in 1981, article 4552-5.11 restricted optometists’ use of window displays 

and signs. In 1991 the legislamre again amended article 45525.11, but at tbat time the legislature only 

added the term “therapeutic optometrist’ to subsecti”ns (a)-(c), (g). Acts 199&?2d Lc& &I. 588, 5 18, 

at 2113. 

‘Article 4552-5.11 applies to both optometrists and therapeutic optometrists. See V.T.C.S. art. 

4552-l.Oyl), (7) (dctining “praciice of optometry” and “practice of therapeutic optome~). Throughout this “pini- we will u.sc tbe tcrlua “0pt0metriat” or “0pt”metrists” to refer to both lzIasscati”“s of 

praditionera. 

p. 894 
Clinton M. DeWolfe, O.D. - Page 5 (1x4-170) 

optometrist’s patients did not purchase their ophthalmic goods from the 

manufacturer. Id.; see also Sworn Statement of Morris M. Morgan, Jr. (Aug. 26, 

1980) (referred to in Hearings in S.B. 109 Before the Senate Comm. on Hum. Res., 

67th Leg. (Mar. 25, 1981)) (on file with Senate Comm. on Health and Hum. 

Services); Sworn Statement of James Shamburger (Aug. 12, 1980) (referred to in 

Heatings on S.B. 109 Before the Senate Comm. on Hum. Res., 67th Leg. (Mar. 25, 

1981)) (on file with Senate Comm. on Health and Hum. Services). The legislature’s 

statement of intention, found in article 4552-5.11(c), clearly expresses the 

legislature’s desire that this kind of economic coercion stop, and that an optometrist 

or therapeutic optometrist be free to recommend to his or her patients the best 

products for each particular patient. See supm (quoting text of art. 4552-5.11(c)); 

The Texas Optometry Act: Hearings on S.B. 109 Before the Senate Comm. on Hum. 

Res., 67th Leg. (Mar. 25, 1981) (statement of Larry Niemann, representative of and 

attorney for Texas Optometric Association) (copy on file with Senate Staff 

Services); r$ V.T.C.S. art. 4552-5.13 (containing professional responsibility requirements for optometrists); id. art. 4552-5.14 (restricting optometrists’ authority to 

lease space from mercantile establishments); rif. art. 4552-5.15 (requiring 

optometrists to practice completely and totally separate from dispensing opticians). 

You ask how to define “retailer of ophthalmic goods” in the context of article 

4552-5.11. The act defines neither “retailer” nor “ophthalmic goods.” However, the 

act defines “ophthalmic dispenser” as “a person not licensed as an optometrist, 

therapeutic optometrist, or physician who sells or delivers to the consumer 

fabricated and finished spectacle lenses, frames, contact lenses, or other ophthalmic 

devices” that an optometrist, therapeutic optometrist, or physician has prescribed. 

V.T.C.S. art. 4552-1.82(5). We believe that the kinds of goods an ophthalmic 

dispenser sells or delivers are “ophthalmic goods. 

To determine the meaning of “retailer,” we turn to the common 

understanding of the term. See Gov’t Code 9 312.002(a) (providing that, in general, 

words used in statute shall be given their ordhmry meaning). A “retailer” is “a 

person engaged in making sales to ultimate consumers.” BLACK’S LAW DICTIONARY 1182 (5th ed. 1987). We do not understand “retailer,” as article 4552-5.11 

uses the term, to refer only to a human person but also to include legal entities such 

as corporations or partnerships. See V.T.C.S. art. 4552-5.11(g). Thus, a “retailer of 

ophthalmic goods” is a person or legal entity that sells to ultimate consumers 

spectacle lenses, frames, contact lenses, and other ophthalmic devices. 

p. 895 
Clinton M. DeWolfe, O.D. - Page 6 (m170) 

Clearly, all of the businesses that Dr. Smith wholly owns or in which he has 

an ownership interest are “retailers of ophthalmic goods.” As to those businesses 

Dr. Smith does not wholly own, the question becomes whether Dr. Smith is a 

retailer of ophthalmic goods simply by virtue of his ownership interest in the 

businesses. We conclude that his ownership interest does make him a “retailer of 

ophthalmic goods” for purposes of article 4552-5.11. Dr. Smith’s ownership interest 

in a business engaged in selling ophthalmic goods puts him in a position to exercise 

control over the professional judgment, mamter of practice, or practice of the 

optometrist who is Dr. Smith’s co-owner and who practices optometry at the 

business. 

Subsection (c) instructs us liberally to construe the act to prevent the exercise 

of control over optometrists. Accordingly, for purposes of V.T.C.S. article 

4552-5.11, we believe “retailer of ophthalmic goods” must include any person with an 

ownership interest in a business that sells ophthalmic goods. In general, of course, a 

retailer of ophthahnic goods is subject to the restrictions that article 4552-5.11(a) 

and (b) articulate. 

We note, however, that article 4552-5.11(g) exce.pts from these restrictions a 

retailer of ophthalmic goods who is a licensed optometrist or that is a legal entity 

wholly owned and controlled by one or more licensed optometrists, so long as the 

optometrist or legal entity has offices at fewer than four locations. In our opinion, 

“office” indicates a place where ophthalmic goods are so1d.s Under the hypothetical 

%e act does not d&e ‘of8ces.~ AddithaUy, WC have not found any legislative history 

iadicatiag how the legidahue meant to use the term. GntsequenUy, we refer to the common 

understanding of the word. See G&t Code 0 312002(a) (providing that, in general, words used in 

statute shall be given their ordinary meaning). Here, we construe the term “offices” after cxamkdq 

case law and other sources. Accord chhzdo State Civil Sew. Employs A&n Y. Low, 448 P2.d 624, 

630 (Cd”. EM) (&thing “office’ as ‘place of bushe.& ); WEEiSTf!RNtivtw ’S NE%’ COLW;~AT!! 

DIC~ONARY 820 (1990) (defining “office” as “place where a particular kind of business is 

lmll!3actcd...as . ..tIu place in which a professional person conducts his or her professional 

business”); see Bigham v. State, 20 S.W. 5T, m (Tee Grim. App. IS%?), own&d m”thmgracndr, 

V+Vhmson Y. S&h?, 44 S.W. 1107 (Tcx Grim App. 1898) (defiohg ‘office” as “place where a particular 

kiud of business . . . is transacted”); I$ Onfikowski Y. Sbmh, 228 N.Y.S.2d 497, 49g (N.Y. App. Div. 

1962) (detining ‘office” as “a room or any part of a building in ticb a person carries on his usual 

“ccupatiou”); Red Aat!s Imprw~mnr ch’b, Inc. Y. Burkhalter, 241 s.w.zd 921, 925 (Temh. 1951) 

(dching ‘office’ as “room or building in which a person trauacts his busiacs w cani- on his stated 

“CCUpatiOO”). 

p. 896 
Clinton M. DeWolfe, O.D. - Page 7 M-170) 

you have set up, Dr. Smith wholly owns offices at three locations in Texas at which 

ophthalmic goods are sold. Additionally, he has an ownership interest in offices at 

approximately fifteen other locations at which ophthaJmic goods are sold. In our 

opinion, Dr. Smith has “offices at more than three locations” and thus is subject to 

the restrictions section article 4552-5.11(a) and (b) articulates.6 

Your second question asks whether, if Dr. Smith is a “retailer of ophthalmic 

goods” for purposes of article art. 4552-5.11(a) and (b), he may maintain an 

exception under article 4552-5.11(g) with respect to the three offices he wholly 

owns. You contend that he may not. We agree. Once an optometrist has more 

than three offices at which ophthalmic goods are .sold, all offices are subject to the 

restrictions set out in subsections (a) and (b). 

SUMMARY 

Any person with an ownership interest in a business selling 

ophthalmic goods is a “retailer of ophthalmic goods” for 

purposes of V.T.C.S. article 4552-5.11 of the Texas Optometry 

Act. An optometrist who is also a retailer of ophthalmic goods 

and who has offices at fewer than four locations is excepted from 

%Ve note that article 4552-53(c) authorizes an optometrist to “engage ia the business of a 

dispensing optician, own stock in a corporation engaged in the business of a dispensing optician, or be a 

partner iu a firm engaged in the business of a dispensing opti% so long as certaio condition ax 

met. The act dches “dispensing optician” as synonymous with “opbthaJmic dispenser.’ V.T.CS. art. 

4552-l.U2(5); see nrpm p.6 (quoting dehition of “ophthalmic dispenser”). In other words, both a 

dispmsing opticku and an ophthalmic dispenser sell or deliver to a consumer spedacle lenses, frames, 

and contact lensw. V.T.C.S. art. 4552-l.U2(5). Wbik article 4552-53 places no limit oo the number 

of buskmcs dispensiag optical goods in which au optometrist may hold an ovmcmbip interest, article 

4552-5.11 restricts an optometrist who has ownership interests in more. tbau three oftiw at which ophthabuic goods arc. sold. We believe tbat an optometrist who has ownership interests in more than tbrcc 

busheses at which optical gocds are sold is subject to the restrictions articulated in article 4552-5.11. 

p. 897 
Clinton M. DeWolfe, O.D. - Page 8 W-170) 

the restrictions listed in article 4552-5.11. Such an optometrist 

who has offices at four or more locations is subject to the 

rkktions established in article 4552-5.11(a) and (b) as to all of 

his or her offices. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENBAHICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

p. 898