# OF TEXAS AUSTIN. **TRZXAS** 

### 78711

April 17, 1975 The Honorable Cecil M. Pruett County Attorney Hutchinson County 

### 630North Deahl Borger, Texas 79007 Opinion No. H- 584 Re: Constitutionality of article 4590e, section 3, v. T. c. s. Dear Mr. Pruett: You have requested our opinion regarding the constitutionality of article 4590e. section 3. V. T. C.S., and the interpretation ofthat statute bythe Texas State Board ofMedical Examiners. The statute reads, in pertinent part:



### Sec.3. Every person licensed topractice the healing art. . . by
. . . the Texas State Board of Medical Examiners
. . . shall in the professional use ofhis name onany sign, pamphlet, stationery, letterhead, signature, or on any other such means ofprofessional identification, written or printed, designate in the manner set forth in this Act the system ofthe healing art which he is by his license permitted to practice. The following are the legally required identifications, one ofwhich must be used by practitioners of the healing art: (1) Iflicensed by the Texas State Board ofMedical Examiners on the basis ofthe degree Doctor of Medicine: physician and/or surgeon, M. D. ; doctor, M.~‘D.; doctor of medicine; M.D. (2) Iflicensed by the Texas State Board ofMedical Examiners on the basis ofthe degree Doctor of Osteopathy: physician and/or surgeon, D.0. ; Osteopathic physician and/or surgeon; doctor, D.0. ; doctor of osteopathy; osteopath; D.0.

. . .
p. 2605The Honorable Cecil M. Pruett, page 2 (H-584)

The Board interprets this statute to prohibit the use of the designation I’M. D.” by aperson whose medical license is based upon the degree of Doctor of Osteopathy. You ask whether such prohibition violates the equal protection clauses of article 1. section 3of the Texas Constitution and the Fourteenth Amendment to the United States Constitution. “Osteopathy” has long been recognized as within “the practice ofmedicine” in Texas
. Attorney General Opinion O-1298 (1939). We have previously held, however, that the Board ofMedical Examiners is neither authorized nor required to issue a license as a “doctor ofmedicine” to apractitioner who received his education at an osteopathic school, andwhose M. D. degree was awarded merely by making application for itunder the laws of California. Attorney General Opinion C-48 (1963). “The degree M. D. connotes an education obtained at amedical school and a D. 0. degree likewise contemplates a degree obtained and based upon study at an osteopathic school.” la., at 220. That opinion reflected a correct interpretation of the statute, but it did not reach the question ofconstitutionality. A three-judge federal court in Georgia, however, recently considered, in Oliver V. Morton, 361 F.Supp. 1262 (N.D.Ga. 1973), the constitutionality of a Georgia statute similar to article 4590e. The court upheld the statute’s facial validity and stated that it is reasonable for a state to impose separate classifications for M. D.‘s and D.0. ‘8 and consequently toprohibit the use ofthe designation ofM. D. by aperson whose medical license is based on ,tbedegree of Doctor of Osteopathy. However, the court also held that the Composite State Board ofMedical Examiners violated the equal protection clause of the United States Constitution in its application ofthe Georgia statute. The Georgia State Board had been licensing as M.D. ‘s foreign-trained practitioners who had not been awarded a degree which was the equivalent of the M. D. degree, and simultaneously had been refusing to license as M. D. ‘s pradtitioners with a D.0. degree. The court held that the state could not “differentiate between two qualified physicians who have not earned an M. D. degree and allow one to parade under anunearned:M. D. degree while refusing to allow the other to do SO.” g., at 1269. In our opinion, section 3 ofarticle 4590e. similar to the Georgia statute, is constitutional on its face. Of course, this statute, like any other statute is subject to discriminatory and constitutionally proscribed application. We have no facts before us toindicate that the Texas State Board ofMedical Examiners is applying the statute in such discriminatory manner.
p. 2606The Honorable Cecil M. Pruett, page 3 (H- 584)

SUMMARY Section 3 ofarticle 4590e. which authorizes the Texas State Board ofMedical Examiners to prohibit the use of the designation of “M. D. ” by aperson whose medical license is based upon the degree of Doctor of Osteopathy is, onits face, constitutional.

Attorney General of Texas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chairman Opinion Committee

p. 2607