The Attorney General of Texas 

September 24, 1980 

MARK WHITE 

Attorney General 

Honorable John J. Kavanagh, M.D. 

Commissioner 

Texas Department of Mental 

Health & Mental Retardation 

Opinion No. MW-24 8 

Re: Means by which the Department of Mental Health and Mental 

P. 0. Box 12668, Capitol Station 

Austin, Texas 78711 

Retardation can obtain consent for 

dental treatment of patients or 

residents 

Dear Mr. Kavanagh: 

Your question concerns article 3174b-2, V.T.C.S., which provides, in 

pertinent part: 

The Board of Texas State Hospitals and Special 

Schools. . . shall provide or perform recognized 

medical treatment or services to persons admitted or 

committed to its care. Where the consent of any 

person or guardian is considered necessary, and is 

requested, and such person or guardian shall fail to 

immediately reply thereto, the performance or 

provision for the treatment or services shall be 

ordered by the superintendent upon the advice and 

consent of three (3) medical doctors, at least one of 

whom must principally be engaged in the private 

practice of medicine. Where there is no guardian or 

responsible relative to whom request can be made, 

treatment end operation shall be performed on the 

advice and consent of three (3) physicians licensed by 

the State Board of Medical Examiners. 

Acts 1955, 54th Leg., ch. 54, §l, at 86. The Board of Texas State Hospitals 

and Special Schools was abolished in 1965 and replaced by the Texas 

Department of Mental Health and Mental Retardation. Acts 1965, 59th Leg., 

ch. 67, SSl, 2, at 165. You ask whether article 3174b-2 authorizes a 

superintendent of a Department of Mental Health end Mental Retardation 

facility to order dental treatment and services for persons committed 

thereto upon the advice and consent of three dentists. 

In instances where consent to treatment or services is considered 

necessary but no guardian or responsible relative of the person committed to 

p. 782 
Honorable John J. Kavanagh - Page Two (MW-248) 

the facility exists, article 3174b-2 provides that treatment shall be performed only 

upon the advice and consent of three physicians “licensed by the State Board of 

Medical Examiners?’ Dentists are not licensed by the State Board of Medical 

Examiners, article 4504a, V.T.C.S., but instead are licensed by the State Board of 

Dental Examiners. Article 4543, et., V.T.C.S. Accordingly, we conclude that 

dentists may not provide the necessary consent to treatment when no guardian or 

responsible relative of the person committed to the facility exists. 

When the consent of the person committed to the facility or his guardian has 

been requested, but no immediate response is forthcoming, article 3174&2 provides 

that treatment shall be ordered only with the consent of three “medical doctors, at 

least one of whom must principally be engaged in the private practice of medicine.” 

The question is whether the legislature, by specifying “medical doctor” in this instance 

and “physician licensed by the State Board of Medical Examiners” elsewhere, intended 

to distinguish between the two. In other words, may a dentist, although not licensed by 

the Board of Medical Examiners, nevertheless qualify as a “medical doctor” and 

thereby be eligible to provide consent to treatment or services in this instance? We 

think not. Although a plausible argument can be made that the use of different 

terminology indicates that “medical doctor” should be interpreted more broadly than 

“physician licensed by the State Board of Medical Examiners,” we do not think a court 

would bold that the term is broad enough to include dentists, at least for purposes of 

article 3174b-2. Physicians end dentists sre governed by different agencies and 

regulated by different statutes, and we think this evidences a clear intention to 

distinguish between them. Moreover, we can see no reason why dentists should be 

eligible to provide consent in this instance when they clearly may not provide consent 

when IX) guardian or responsible relative exists. Thus, we conclude that dentists are 

not “medical doctors” within the meaning of article 3174b-2, and that they may not 

consent to dental treatment under the circumstances described above. 

This does not mean that article 3174b-2 renders superintendents powerless to 

provide necessary dental treatment to patients and residents of their facilities when 

consent to treatment has not or cannot be obtained. To construe article 3174&2 in 

such a manner es to prevent treatment from being administered because there is, 

effectively, no one to provide consent would be, in our judgment, to reach an unduly 

harsh result. Article 3174b-2 directs the Department of Mental Health end Mental 

Retardation to “provide or perform recognized medical treatment or services to 

persons admitted or committed to its care,” and we think medical treatment 

necessarily embraces dental care. See, 3, Little v. Little, 576 S.W. 2d 493 (Tex. Civ. 

App. - San Antonio 1979, no writr When dental services are deemed necessary, 

therefore, it is our opinion that the superintendent may provide such care with the 

consent of three physicians licensed by the State Board of Medical Examiners, so long 

as the other provisions of article 3174b-2 are met, even though the services themselves 

would be performed by dentists. 

SUMMARY 

Article 3174b-2, V.T.C.S., prohibits dentists from consenting 

to dental treatment of persons under the care of a Department 

P. 783 
. z 

Honorable John J. Kavanagh - Page Three (NW-248) 

of Mental Health and Mental Retardation facility. Dentists 

may provide dental treatment or services, however, provided 

consent is obtained from three physicians licensed by the State 

Board of Medical Examiners end all other conditions of article 

3174b-2 are satisfied. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY 111 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

Susan Garrison, Acting Chairman 

Jon Bible 

Rick Gilpin 

Barbara Marquardt 

P. 784