. . 

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. 

In your recent letter you requested the opinion of this 

office on the following questions: 

"1. Whether podiatrists may create a professional association under the Texas Professional 

Association Act. 

"2 . Whether all or part of the restrictions 

in Article 778a, Texas Penal Code, have been repealed by necessary implication by the Texas Professional Corporation Act. 

" 3 . Whether or not it is permissible for an 

individual or a partnership to practice under an 

assumed name, either with or without 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: 'A Professional Corporation 

organized for the practice of Podiatry shall adopt 

a name consisting of the full or last name and degree of one or more of the share holders of the 

Corporation followed by "a Professional Corporation", 

"a Prof. 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 a professional corporation of podiatrists to use an assumed name. 

"6 . Whether the State Board may establish 

rulesor standards for the assumed name, so as to 

prevent the use of a name which 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 to podiatry 

"Section 1. The name of the Texas State Board 

of Chiropody Examiners, created by the provisions 

of Article 4568, Revised Civil Statutes of Texas, 

1925, as amended, is changed 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. The word chiropody, wherever used 

in the laws of the State of Texas, shall hereafter 

be construed to mean podiatry. The definition of 

the practice of podiatry is the same as the definition heretofore of the practice of chiropody, as 

defined in Article 4567, Revised Civil Statutes of 

Texas, 1925, as amended. 

"Sec. 3. The word chiropodist, wherever used 

in the laws of the State of Texas, shall hereafter 

be construed to mean 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 

II . . . 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 of Medical Examiners. Our conclusion follows the fact that after January 1, 

1970, any profession except the practice of 

medicine, can be incorporated and the services 

can by law be performed by a corporation." (at 

p. 4, 2629). 

The answer to your first question is therefore negative. 

Podiatrists may not create a professional association under the 

Texas Professional Association Act. 

Question No. 2 

The Texas Professional Corporation Act repeals that 

part of Article 778a, Vernon's Penal Code, which forbids the 

practice of podiatry under a corporate name. Section 3 of the 

Texas Professional Corporation Act (Article 1528e. V.C.S.) defines professional service as: 

II . . . any type of personal 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 the passage of this Act 

and by reason of law could not be performed by a 

corporation, . . .II (Emphasis added.) 

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 of Article 778a to the contrary, but 

no more. 

Question No. 3 

It is not permissible for individuals to practice podiatry 

under any assumed name except the proper corporate style; the provisions of Article 778a forbid the practice 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, and by-laws is broad enough to authorize the rule set 

out in this question. The names authorized comply with Article 

2.05 of the Texas Business Corporation Act, paragraph A, subdivision 

(1). 

Questions No. 5 and 6 

The Texas Professional Corporation Act repeals by implication only that part of Article 778a of the Texas Penal Code 

that is in conflict with the Professional Corporation Act. Therefore, only that part of Article 778a which forbids practice under 

a corporate name is repealed. The remaining part of Article 778a 

would prohibit a rule permitting practice under an assumed name 

other than the proper corporate style of the corporation. 

We note that Section 8 of the Professional Corporation 

Act reads: 

"A professional corporation may adopt any name 

that is not contrary to the law or ethics regulating 

the practice of the professional service rendered 

through the professional 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 do not think the passage of the Professional Corporation'Act repealed the general prohibition against 

an assumed name in Article 778a, as that is not necessary to the 

implementation of the Professional Corporation Act. Your fifth 

and sixth questions are accordingly answered in the negative. 

SUMMARY 

Podiatrists may not create a professional 

association under the Texas Professional Act 

(Article 1528f, Vernon's Civil Statutes). 

Podiatrists may lawfully create a professional corporation where all shareholders 

are licensed podiatrists. Article 778a, Texas 

Penal Code, is repealed by Article 1528e, Vernon's 

-5785- 
. . 

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

Civil Statutes, only to the extent that it prohibits formation of this type corporation. 

It is not permissible for individuals to 

practice podiatry under an assumed name other 

than the proper corporate style of a corporation 

lawfully organized under the Professional Corporation Act. 

The rule set out in Question No. 4 is valid 

on its face. 

Most of Article 778a of the Texas Penal Code 

is still in force and prohibits the practice 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 

-5706-