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 ExecutiveDirector OpinionNo. ?lW-501 Texas State Board of Dental Examiners Re: Constitutionality of 411 West 13th Street, Suite 503 Dental PracticeAct provision Austin, Texas 78701 relating to solicitation Dear Mr. Nail: You have requestedour opinion regardingthe constitutionalityof that provision of the Dental Practice Act, article 45488, V.T.C.S., which relates to solicitation. Specifically, you ask whether the followingprovisionof the statute is constitutional:

"Verbal" in commonusage means spoken or oral cormnunication.Black's Law Dictionary 1397 (5th ed. 1979); see also PyramidDrilling Company v. Howell, 173 S.W.2d 250, 253 (Tex.Civ. App. - Texarkana 1943,writ ref'dw.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 ormore of the followingacts:

.... (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),theUnited States SupremeCourt 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

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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);Friedmanv. Rogers, 440 U.S. 1 (1979). See also In theMatter 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-personcommunication. The Courtnoted 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 uninformeddecisionmaking. 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, overreachingand other forms of 'vexatiousconduct."' Id. at 462. - To the extent that subsection (2) of article 4548gmerely enacts the criteria set forth in Ohralik, we believe it is constitutional. Sincewe are obliged to construe every statute in such a way that it will meet constitutionalstandards, 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,overreachingand other forms of 'vexatiousconduct."' You also ask whether the prohibitions of subsection (2) are in conflictwith 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 deceptivepracticesby theperson.

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 prohibitionof article 4548g(2):

(1) a mass mail-out solicitingdentalbusiness to 100persons; (2) stuffingunion envelopeswith dental cards or dental information; (3) mail-out to all newcomers to a city; and (4) passing out dental leafletsto shoppers in a mall. Subsection (2)prohibitsverbal solicitationon an individualor 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 bemissing., In addition, since the leafletmight merely furnish dental information, it is clear that not every distribution of dental leaflets would necessarily constitute "solicitingdentalbusiness." On the basis of the limited facts you have furnished,we cannot determinewhether the distributionof dental leaflets to shoppers in a mall would violate subsection (2). None of the other three fact situationswould appear to contravenethatprohibition. SUMMARY The provision of the Dental Practice Act, article 4548g, V.T.C.S., which relates to solicitationis constitutionalon its face.

MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral

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

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE SusanL. Garrison, Chairman Rick Gilpin PatriciaHinojosa Jim Moellinger GeorgeWarner - .

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