QBffice of tip iZlttornep Qheral 

&ate of ?aexae 

DAN MORALES 

ATTORNEY GENERAL September 23,1996 

Bruce A. Levy, M.D., J.D. 

Executive Director 

Texas State Board 

of Acupuncture Examiners 

18 12 Centre Creek Drive, Suite 300 

P.O. Box 149134 

Austin, Texas 787149134 

Opiion No. DM-415 

Re: Whether the practice of acupuncture 

is within the scope of practice for a 

licensed Texas chiropractor and related 

questions (RQ-853) 

Dear Dr. Levy: 

You inform us that certain health-care practitioners, who are licensed as 

chiropractors but not as acupuncturists.1 have been advertising that they perform. and 

presumably do perform, acupuncture at their chiropractic clinics. You ask three questions 

in an attempt to determine whether this phenomenon indicates a violation of V.T.C.S. 

article 4495b, subchapter F, which governs the practice of acupuncture, or V.T.C.S. 

article 4512b, which governs the practice of chiropractic. Specifically, you seek our 

opinion regarding the following issues: 

1. Whether the practice of acupuncture is within the scope of 

practice for a licensed Texas chiropractor72 

2. Whether licensure as an acupuncturist is required for a 

licensed Texas chiropractor to engage in the practice of acupuncture? 

3. If the answer to the first question is yes and the answer to the 

second question is no, whether advertising the practice of 

acupuncture by a licensed chiropractor violates statutes prohibiting 

false or misleading advertising if the chiropractor fails to indicate in 

the advertisement that he or she is not licensed by the Texas State 

Board of Acupuncture Examiners? 

We will begin by discussing the two statutes that are most relevant to your questions, 

V.T.C.S. article4495b, subchapterF, andV.T.C.S. article4512b. 

The legislature enacted subchapter F of article 4495b to provide for the 

“establishment of statewide standards for the training, education, and discipline of 

‘An antpunchvist ia a QraaitiOnn ofacupmchur. See V.T.C.8. art. 46’5b. 0 6.020). 
Bruce A Levy, M.D., J.D. - Page 2 (DM-415) 

acupuncturists and for “an orderly system of regulating the practice of acupuncture.” 

V.T.C.S. art. 4495b, 8 6.01. See generuZ& Attorney General Opiion DM-336 (1995) at 

l-2 (summa&m g V.T.C.S. art. 495b, subch. P). Section 6.02(l) defines “acupuncture” 

as foliows: 

(A) the insertion of an acupuncture needle and the application 

of moxibustions to specific areas of the human body as a primary 

mode of therapy to treat and mitigate a human condition; and 

(B) the administration of thermaJ or electricaJ treatments or the 

recommendation of dietary guidelines, energy flow exercise, or 

dietary or herbal supplements in conjunction with the treatment 

described by Paragraph (A) of this subdivision.* Footnotes added.] 

No individual may practice acupuncture in this state unless he or she has obtained 

a license to practice acupuncture 6om the Board of Medical Examiners, upon the 

recommendation of the Board of Acupuncture Bxaminerss V.T.C.S. art. 4495b, 3 6.06; 

see also id. $5 6.05(a)(6), 6.10. A “health care profesSional licensed under another 

subchapter” of the Medical Practice Act or another statute may practice acupunctu~ 

without obtaimng a kense from the Board of Medical Bxaminers, but only if the practice 

of acupuncture is “within the scope of’ the health care profesSional’s kense. Id. 

8 6.03(a). Any individual who practices acupuncture without a license to practice 

~~~on”ir’[c]a~onbymauLF~acylindcros~dcotton~Eallcda~ 

QhCCd 011 thC SkiIt and fid pt the top.” TAFER’S Cycux~~~c MEBXL D~C~ONARY M-66 

(Clayton L. Thomas, M.D., MPH, al.. 13Ib cd. 1977); see ah An&mm Y. Edlard, 498 F. Supp. 1038, 

1043 11.14 (S.D. Tcx. 1980). Moxibuslion is ‘[u]scd to produce c.umWnitation.” TABER’S ~YCUXEDIC 

MEDIC.%DICTIONARY M&i 
Bruce A Levy, M.D., J.D. - Page 3 (DM-415) 

acupuncture or a license encompassing the practice of acupuncture commits a class A 

misdemeanor. Id. 8 6.12(b). 

Section 1 of article 4512b, V.T.C.S., lists three acts constituting the practice of 

chiropractic. As amended by the Seventy-fourth Legislature, section 1 provides: 

(a) A person shall be regarded as practicing chiropractic within 

the meaning of this Act ifthe person: 

(1) uses objective or subjective means to analyze, examine, 

or evaluate the biomechanical condition of the spine and 

musctdoskeletal system of the htmtan body. 

(2) pet-forms nonsurgica& nonincisive procedures including 

but not limited to adjustment and manipulation, in order to 

improve the subluxation6 complex or the biomechanics of the 

musculoskeletal systeq or 

(3) holds himself out to the public as a chiropractor of the 

human body or uses the term “chiropractor,” ‘chiropractic,” 

“doctor of chiropractic,” ‘DC.,” or any derivative of those 

tetms in CoMection witb his name.’ 

Act of May 29. 1995. 74th Leg., RS.. ch. 965, 5 13, 1995 Tex. Sess. Law Serv. 4789, 

4802 (footnotes added). Prior to the e&&e date of the 1995 amendments, article 4512b 

did not limit the scope of chiropractic to only nonincisive, nonsurgical procedures.* See 

id. 

Section 13a of V.T.C.S. article 4512b, which the Seventy-fourth Legkkure also 

amended, see id. 5 18, 1995 Tex. Sess. Law Serv. 4789, 4803, explicitly excludes from 

the practice of chiropractic, among other things, “incisive or surgical procedures.” For 

purposesofarticle4512b,thephrase 

‘%ubhxaIion” is “a panid didofxtia& a yeain” XVII t33ma13 E~ousti DICnONmY 42 (26 

ed. 1989). 

VhcScvaity-fowthL@3latmiMertalIhewordnMtbcbumsnbody*~“asa 

dbpmctof and “or WCS the tam” See Ad ofhfay 29.1995,74tb Lg., R.S., cl~ 965, # 13.1995 Ta 

Seaa. Law Serv. 4789,4802 (amatdiqV.T.C.8. art. 4512b. 0 l(a)(3)). 

%QattiaIlar*Qriortolmmrfmcnt by tk Sevay-ftmttb Le&labq V.T.C.S. utick 4512b. 

mtuionl(a)(2)pnwidaithatanindikhl~~iftkibciDdividuat~ 

. . niaqam,oroIber~inoIdertolmQnweaubl~atlle~cadtbc 

nxtndoskelti syxten~” See Aa ofMay 29.1995.74th Leg. RS.. ch 965, p 13.1995 Ta Sets. JAW 

&IV. 4789.4802 @meding V.T.C.S. art. 4512b, P l(a)(2)). 
Bruce A Levy, M.D., J.D. - Page 4 (DM-415) 

“incisive or surgical procedure” includes but is not limited to making 

an incision into any tissue, cavity, or organ by any person or 

implement. It does not include the use of a needle for the purpose of 

drawing blood for diagnostic testing.9 

V.T.C.S. art. 4512b, 3 13a(b) (footnote added). 

A violation of article 4512b results in the revocation or ampension of a license, or 

the probation or reprimand of a licensee. V.T.C.S. art. 4512b, 8 14(a); see aJso id. 

6 14a(l). The Texas Board of Chiropractic Firmminers may assess an administrative 

penalty in an amount not to exceed $1,000 for each day the violation occurs or continues. 

See id. 85 14(a), 19a(a). In addition, a person who violates article 4512b is liable to the 

state for a civil penalty of Sl,OOO for each day the violation occurs or continues. Id. 

8 lww 

For purposes of this opinion, we assume a chiropractor practices acupuncture to 

improve the subluxation complex or the biomechanics of the musculoskeletal system. See 

id. 5 l(a)(2). Central to our determination of whether the practice of acupuncture is 

“within the scope of’ a chiropractic license, see V.T.C.S. art. 4495b, $6.03(a), is a 

consideration of whether acupuncture is an “incisive or surgical procedure” for purposes 

of section 13a(b) of article 4512b. lf acupuncture is an incisive or surgical procedure, 

article 4512b, section 13a(s)(l) excludes it from the practice of chiropractic, and a person 

who is licensed only as a chiropractor may not perform it.. 

The word “incisive” means “cutting; having the power of cutting.” TABER’S 

C~cLopEDlc MEDICAL DICI’IONARY I-12 (Clayton L. Thomas, M.D., M.P.H., ed., 13th 

ed. 1977). It also means “cutting with a sharp edge.” Vll THE CIEIRD EJIGIJSH 

DICTIONARY 796 (2d ed. 1989). 

The word “surgical” per&s to surgery, which is the “branch of medicine dealing 

with manual and operative procedures for correction of deformities and defects, repair of 

injuries, and diagnosis and cure of certain diseases.” TABER’S CYCLOPEDIC MEDICAL 

DICIIONARY. supru, at S-130; see &o id at S-131 (defining ‘surgical”). For purposes of 

the Medical Practice Act, V.T.C.S. article 4495b, the legislature has defined the term 

“surgery” to include “surgical services, surgical procedures, surgical operations, and the 

procedures described in the surgery section of the Common Procedure Coding System ills 

adopted by the Health Care Fiicing Administration of the United States Department of 

Health and Human Services.“t” V.T.C.S. art. 4495b. 8 l.O3(a)(l5). 
Bruce A Levy, M.D., J.D. - Page 5 (DM-415) 

When interpreting a statute, a court must diligently attempt to ascertain legislative 

intent. Gov’t Code 3 312.005. Although we question whether a court ordinarily would 

classify acupuncture as “incisive”*t or “surgicaJ,“ts we believe the legislature intended that 

V.T.C.S. artjcle 4512b, section 13a(b) be construed to classify acupuncture as an “incisive 

or surgical procedure”; we tiuther believe a court would reach a conclusion consistent 

with the legislative intent. The legislature expressly excluded fiorn the range of 

procedures that are incisive or surgical %e use of a needle for the purpose of drawing 

blood for diagnostic testing.” We deduce that the legiskre considered the use of a 

needle for the purpose of drawing blood to be an incisive or surgical procedure, and we 

find no distinction between the use of a needle in a diagnostic ckcum&mce and the use of 

acupuncture needles. 

Additionally, we note that, during the Seventy-fourth Legislature, a witness 

described acupuncture as “a mild form of surgery” to the Senate Committee on Health and 

Human Setvices. See Hearings on S.B. 718 Before the Senate Comm. on Health and 

Human Sendces, 74th Leg., R.S. (Apr. 12,X95) (statement of Dee Ann Newbold, Texas 

Acupuncture AswciaUon) (tape available fbom Senate Statf Services). The legiskme 

may well have believed, therefore, that acupuncture was among those “incisive” and 

“surgicaJ” procedures article 4512b, sections l(a)(2) and 13a(b) exclude gem the practice 

of acupuncture. 

L’COMSh8VCdCSdbCd wpmccureua~~dtbe~“aAwpmchmSoc~ofKw. 

v. KmLuz3ateEd. o/HeahgArts, 602 P.2d 1311.1311 (l&a. 1979). or “a &mncmiq~bodilyticriug” 

see People v. Amber, 349 N.Y.S.26 604. 610 (N.Y. Sup. Ct 1973), as well as an ?nsadon- & 

‘manipuhtion” of wires of nce&q see An&ewe Y. Babd, 498 F. Sqp. 1038, 1043 (SD. Ta 1980); 

Peoplev. Roes, 514N.E.Zd993.993.994 (Ill. 1%7);AwpurchvrSoc~of?hn., 602P.2dat 1312;.Wate 

v.Rlch, 339N.E.Zd630.631 (Ohio 1975);Amber, 349N.Y.S.2dat611. 

“Wefindno0~cl~~om1tthathuamskcdwlwtl~rtbcpndiceof~~e~ 

rar.&ay~tmt~~tcIhat~amundtbccaunbyCmnhy~ontbeimue. Forexample,thcSqremc 

delmmedtbat~l6notaugayferpvporaofthcKao6assutatca 

kfaustvupnncturriSWt”~tOrparste~-ti6SWfWtkpcuporc,OfQCW&UjOIlfOI 

trratmcnf re~lactmwt or runoval of aQioted partr.” Awpvnchm Sot ), of Kan. Y. Kwwe State Ed. of 

Healing Arts. 602 P.2d 1311. 1315-16 &an. 1979); accord People v. Roar. 514 NE26 993, 997 (Tll. 

1987); see &o Stute Y. Wan, 528 P.2d 594.5% (Or. 1974) (nnnmprizing wltboutKGMsidaing.lower 

OOUtl’StiIdiUgtIUlt~ didlWtCOMtltUtCllliWl6UIgCIy). 

OIlthCOtbbi3Od,thCW~COUttOfAQQWlSlISS&tWUiWdthUropoDchnesurgay bccauac it iwoks “the pwehation of human tima.” syotc v. Wilwn, 528 P.2d 279,281 (Wash 

Ct. AQQ. 1974); accord Kelley Y. Rqickas, 270 N.W.2d 665.669 (Mich Ct. m. 1978) (citing Nets 

Reguhting the Pm&w ofAwpuncturr: Rewnt Devekpwn~ in Gd@mia, 7 U.C. DAVIS L. &V. 385, 

391-92.3% (1974)); see also Che!?y Y. State Farm MU. Aufo. Ins. Co., 489 N.W.26 188,790 @fich. Ct. 

AQQ. 1992) (citing Roguckar. 270 N.W.Zd 665); Cammwwalth Y. Schakber& 371 ALhI 544,547 n.6 

(Pa.commw.ct 1977)@dicatingthatAtbxncyGcnaalof~~mncI~thst~ir 

augay iad fokkldcn to chifopracIorS). 
Bruce A Levy, M.D., J.D. - Page 6 (DM-415) 

Furthermore., article 4495b. subchapter F suggests that the legislature believes 

acupuncturists should be trained in accordance with statewide standards, see V.T.C.S. art. 

4495b, 5 6.01(l), and examined by a state board, see id. 5 6.05(a). The legislature has 

established requirements for an applicant for a license to practice acupuncture: among 

other things, the applicant must have completed 1,800 hours of instruction in subjects 

including bacteriology, physiology. symptomatology, meridian and point locations, and 

hygiene, and must have treated patients (with supervision) for at least two terms. See id. 

8 6.07(c). We believe the legislature, in the interest of the public health, safety, and 

welfare, see id. 8 6.01(2), intended to except l?om the training and examination 

requirements only health care professionals whose licenses clearly encompass the practice 

of acupuncture. See id 5 6.03(a). In our opinion, the practice of chiropractic, as 

delineated in V.T.C.S. article 4512b. section 1. does not clearly encompass the practice of 

acupuncture. 

We accordingly conclude that V.T.C.S. article 4512b. section 1. which 

encompasses within the practice. of chiropractic only nonsurgical, nonincisive procedures. 

does not authorize a chiropractor to practice acupuncture. In answer to your Srst 

question. therefo~ the practice of acupuncture is not within the scope of practice for a 

licensed Texas chiropractor. Conversely, in answer to your second question, a licensed 

chiropractor must obtain a license to practice acupuncture if the chiropractor desires to 

practice acupuncture. 

You premise your last question on an a&native response to your first question 

and a negative response to your second question. We have reached the opposite 

conclusions. Consequently, we need not answer your last question. 
Bmce A Levy, M.D., J.D. - Page 7 (DM-415) 

SUMMARY 

Only a health care professional whose license clearly 

encompasses the practice of acupunchxe is excepted from the 

training and exanktion requirements se-t forth for acupuncturists in 

V.T.C.S. article 4495b, subchapter F. The practice of chiropractic, 

as delineated in V.T.C.S. article 4512b, section 1, does not clearly 

encompass the practice of acupuncture. Accordingly, V.T.C.S. 

article 4512b, section 1, which authorizes a chiropractor to perform 

only nonsurgical, nonincisive procedures, does not authorize a 

chiropractor to practice acupuncture. 

Thus, the practice of acupuncture is not witbin the scope of 

practice for a licensed Texas chiropractor. Conversely, a licensed 

chiropractor must obtain a license to practice acupuncture if the 

chiropractor desires to practice acupunctore. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Frepared by Kymberly K. Oltrogge 

Assistaat Attorney General