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## TRE -+ITORNEY GENERAI. OF%'EXAS

Hon. J. C. Littrell, D.P.M. Opinion No. M-1185 Secretary Texas State Board of Podiatry Re: Questions relating to Examiners practice of Podiatry under P. 0. Box 3041 the Professional Corp. Act Waco, Texas 76707 (Art.1528e, V.C.S.), the Professional Association Act (Art.1528f,V.C.S.), and Art. 778a,Vernon's Dear Mr. Littrell: Penal Code.

Inyour recent letter you requested the opinion of this office on the following questions:

"1. Whether podiatrists may create aprofessional association under the Texas Professional Association Act. "2. Whether all or part of the restrictions inArticle 778a, Texas Penal Code, have been repealed by necessary implication by the Texas Professional Corporation Act. "3. Whether or not it ispermissible for an individual or apartnership topractice under an assumed name, either with orwithout the concurrent listing of the individual practitioners in the partnership on stationery, announcements, professional cards, office signs, and so forth. "4. Whether the rule promulgated by the State Board in 1970 concerning the name which a professional corporation of podiatrists may use is valid. In this regard, you will recall that the rule reads as follows: 'AProfessional Corporation organized for thepractice of Podiatry shall adopt aname consisting of the full or last name and degree of one ormore of the share holders of the Corporation followed by "aProfessional Corporation", "aProf. Corp.", "Incorporated", "Inc.", "Company", or "Co.".' -5782-Hon. J. C. Littrell, page 2 (M-1185) .

"5. Whether the State Board, if it so elects, may adopt a rule authorizing aprofessional corporation ofpodiatrists touse an assumed name. "6. Whether theState Board may establish rulesor standards for the assumed name, so as to prevent the use of anamewhich would constitute advertising or otherwise unethical (conduct)." (Parenthesis ours.) For legislation effecting a change in terminology, see Article 4567a1, Vernon's Civil Statutes, which reads as follows:

"Art. 4567a. Change of name topodiatry "Section 1. Thename of the Texas State Board of Chiropody Examiners, created by the provisions ofArticle 4568, Revised Civil Statutes of Texas, 1925, as amended, ischanged to the Texas State Board of Podiatry Examiners. The Texas State Board of Podiatry Examiners has the powers heretofore conferred on the Texas State Board of Chiropody Examiners. "Sec. 2. Theword chiropody, wherever used in the laws of the State of Texas, shall hereafter be construed tomean podiatry. The definition of the practice of podiatry is the same as the definition heretofore of thepractice of chiropody, as defined inArticle 4567,Revised Civil Statutes of Texas, 1925, as amended. "Sec. 3. Theword chiropodist, wherever used in the laws of the Stateof Texas, shall hereafter be construed tomean podiatrist, and any person heretofore licensed as a chiropodist shall be referred to as a licensed podiatrist."

'Acts 60th Leg., R-S. 1967,Ch. 90,p. 181. -5783-Hon. J. C. Littrell, page 3 (M-1185)

Question No. 1 Attorney General's Opinion No. M-551 (1970) 

### part,as follows: holds, in

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. . .it is our opinion that after January 1, 1970, the effective date of the Professional Corporation Act, the Professional Association Act applies only to individuals licensed by the Texas State Board ofMedical Examiners. Our conclusion follows the fact that after January 1, 1970, any profession except thepractice of medicine, can be incorporated and the services can by law beperformed by a corporation." 

### (at p. 4, 2629). The answer toyour first question is therefore negative. Podiatrists may not create aprofessional association under the Texas Professional Association Act. Question No. 2 The Texas Professional Corporation Act repeals that part ofArticle 778a,Vernon's Penal Code, which forbids the practice of podiatry under a corporate name. Section 3of the Texas Professional Corporation Act (Article 1528e. V.C.S.) defines professional service as:

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. . .any type ofpersonal service which requires as a condition precedent to the rendering of such service, the obtaining of a license, permit, certificate of registration or other legal authorization, and which prior to thepassage of this Act and by reason of law could notbe performed by a corporation,
. . .II (Emphasisadded.) We are of the opinion that the above language permits podiatrists to form a corporation, provided the actual practice is conducted only by licensed members. We hold that this language expressly repeals that part ofArticle 778a to the contrary, but nomore. Question No. 3

It is not permissible for individuals topractice podiatry under any assumed name except theproper corporate style; theprovisions ofArticle 778a forbid thepractice under any other assumed name. -5784-Hon. J. C. Littrell, page 4' (M-1185)

Question No. 4 The authority given the Hoard under Article 4568,Vernon's Civil statutes, to adopt all reasonable or necessary rules, regulations, andby-laws isbroad enough to authorize the rule set out in this question. Thenames authorized comply withArticle 2.05 of the Texas Business Corporation Act, paragraph A, subdivision (1). Questions No. 5and 6

The Texas Professional Corporation Act repeals by implication only thatpart ofArticle 778a of the Texas Penal Code that is in conflict with theProfessional Corporation Act. Therefore, only that part of Article 778awhich forbids practice under a corporate name isrepealed. The remaining part ofArticle 778a would prohibit a rulepermitting practice under an assumed name other than theproper corporate style of the corporation.

We note that Section 8of the Professional Corporation Act reads:"Aprofessional corporation may adopt anyname that isnot contrary to the lawor ethics regulating the practice of the professional service rendered through theprofessional corporation." (Emphasis added.) We are of the opinion, however, that an assumed name other than the corporate style is unlawful under Article 778a of the Texas Penal Code. We donot think thepassage of the Professional Corporation'Act repealed the general prohibition against an assumed name inArticle 778a, as that isnot necessary to the implementation of the Professional Corporation Act. Your fifth and sixth questions are accordingly answered in thenegative. SUMMARY Podiatrists may not create aprofessional association under the Texas Professional Act (Article 1528f,Vernon's Civil Statutes). Podiatrists may lawfully create aprofessional corporation where all shareholders are licensed podiatrists. Article 778a, Texas Penal Code, isrepealed byArticle 1528e,Vernon's

-5785-. .

Hon. J. C. Littrell, page 5 (M-1185)

Civil Statutes, only to the extent that itprohibits formation of this type corporation. It isnot permissible for individuals to practice podiatry under an assumed name other than theproper corporate style of a corporation lawfully organized under the Professional Corporation Act. The rule set out in Question No. 4 isvalid on its face. Most ofArticle 778a of the Texas Penal Code is still in force and prohibits thepractice of podiatry under any assumed name except the actual corporate style.

eneral of Texas Prepared by James S. Swearingen Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman Bill Flanery Bill Craig John Banks John Reeves SAMUEL D.MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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