MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2548 

51214752501 

Telex 9101874.1367 

Telecopier 5121475.0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201.4709 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905-2793 

9151533-3464 

1220 Dallas Ave.. Suite 202 

Houston. TX. 77002-6966 

7131650-0666 

606 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

6061747-5236 

4309 N. Tenth. Suite B 

McAHen, TX. 78501-1665 

5121662-4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205.2797 

5121225.4191 

An Equal OpportunityI 

Affirmative Action Employer 

The Attorney General of Texas 

August 5, 1982 

Mr. William S. Nail 

Executive Director 

Opinion No. ?lW-501 

Texas State Board of Dental Examiners Re: Constitutionality of 

411 West 13th Street, Suite 503 Dental Practice Act provision 

Austin, Texas 78701 relating to solicitation 

Dear Mr. Nail: 

You have requested our opinion regarding the constitutionality of 

that provision of the Dental Practice Act, article 45488, V.T.C.S., 

which relates to solicitation. Specifically, you ask whether the 

following provision of the statute is constitutional: 

"Verbal" in common usage means spoken or oral cormnunication. Black's 

Law Dictionary 1397 (5th ed. 1979); see also Pyramid Drilling Company 

v. Howell, 173 S.W.2d 250, 253 (Tex. Civ. App. - Texarkana 1943, writ 

ref'd w.o.m). 

It shall be unlawful for any person, firm, or 

corporation to engage in or be guilty of any 

unprofessional conduct pertaining to dentistry 

directly or indirectly. Any unprofessional 

conduct, as used herein, means and includes any 

one or more of the following acts: 

. . . . 

(2) soliciting dental business by means of 

verbal communication, in person or otherwise, 

directed to an individual or group of less than 

five individuals, which is primarily for the 

purpose of attracting the patronage of such 

individual or group to a particular practice of 

dentistry. 

In Virginia Pharmacy Board v. Virginia Consumers Council, 425 

U.S. 748 (1976), the United States Supreme Court issued the first of a 

series of decisions striking down state prohibitions on professional 

advertising. In subsequent decisions, the Court upheld statutory 

restrictions on the time, place and manner of advertising by 

professionals, provided that the restrictions were: made without 

reference to the content of the material, served a significant 

p. 1804 
Mr. William S. Nail - Page 2 (MW-501) 

governmental interest, and left open ample alternative channels for 

the communication of the information. See Bates v. State Bar of 

Arizona, 433 U.S. 350 (1977); Ohralik v. Ohio State Bar Association, 

436 U.S. 447 (1978); Friedman v. Rogers, 440 U.S. 1 (1979). See also 

In the Matter of R.M.J.. 50 U.S.L.W. 4185 (1982). 

In Ohralik, supra, the Court specifically upheld a state 

prohibition on the solicitation of business by attorneys through 

direct, in-person communication. The Court noted that: 

in-person solicitation may exert pressure and 

often demands an immediate response, without 

providing an opportunity for comparison or 

reflection. 

Its: 

aim and effect... may be to provide a one-sided 

presentation and to encourage speedy and perhaps 

uninformed decisionmaking. 

436 U.S. at 457. 

The Court observed that the disciplinary rules at issue did not 

prevent the appellant from "communicating information to these young 

women about their legal rights and the prospects of obtaining a 

monetary recovery, or from recommending that they obtain counsel." 

They merely prevented him from using the information as bait "with 

which to obtain an agreement to represent them for a fee." Id. at 

458. According to the Court, the rules acted merely to promote a 

"compelling" state interest, that of preventing "those aspects of 

solicitation that involve fraud, undue influence, intimidation, 

overreaching and other forms of 'vexatious conduct."' - Id. at 462. 

To the extent that subsection (2) of article 4548g merely enacts 

the criteria set forth in Ohralik, we believe it is constitutional. 

Since we are obliged to construe every statute in such a way that it 

will meet constitutional standards, it is our opinion that subsection 

(2) is, on its face, constitutional insofar as it prevents "those 

aspects of solicitation that involve fraud, undue influence, 

intimidation, overreaching and other forms of 'vexatious conduct."' 

You also ask whether the prohibitions of subsection (2) are in 

conflict with section l(b) of article 4548f, V.T.C.S., which provides: 

The Board may not adopt rules restricting 

competitive bidding or advertising by a person 

regulated by the Board except to prohibit false, 

misleading, or deceptive practices by the person. 

p. 1805 
. - 

Mr. William S. Nail - Page 3 (MW-501) 

No conflict exists between section l(b) of article 4548f and 

subsection (2) of article 4548g, because section l(b) prevents the 

board, not the legislature, from adopting rules restricting 

advertising. 

Finally, you ask whether the following acts are contrary to the 

prohibition of article 4548g(2): 

(1) a mass mail-out soliciting dental business 

to 100 persons; 

(2) stuffing union envelopes with dental cards 

or dental information; 

(3) mail-out to all newcomers to a city; and 

(4) passing out dental leaflets to shoppers in 

a mall. 

Subsection (2) prohibits verbal solicitation on an individual or small 

group basis. If a dentist were to distribute dental leaflets to 

shoppers in a mall, he would probably be in contact with fewer than 

five persons in any particular instance. If, however, he merely 

distributed the leaflets, without comment, he would not be in 

violation of subsection (2) because the element of "verbal 

communication" would be missing., In addition, since the leaflet might 

merely furnish dental information, it is clear that not every 

distribution of dental leaflets would necessarily constitute 

"soliciting dental business." 

On the basis of the limited facts you have furnished, we cannot 

determine whether the distribution of dental leaflets to shoppers in a 

mall would violate subsection (2). None of the other three fact 

situations would appear to contravene that prohibition. 

SUMMARY 

The provision of the Dental Practice Act, 

article 4548g, V.T.C.S., which relates to 

solicitation is constitutional on its face. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

p. 1806 
Mr. William S. Nail - Page 4 (Mw-501) 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

George Warner 

- . 

p. 1807