THE ATTORSEY GESERAL OF TEXAS

December 28, 1990

Dr. James E. Franklin, D.C. OpinionNo. JM-1279 President Texas Hoard of Chiropractic Re: Whether .achiropractormay Examiners use the title %hiropractic 8716MoPac Expressway physicianq' (RQ-2133) North, Suite 301 Austin, Texas 70759

Dear Dr. Franklin:
Article 4512b,~V.T.C.S., the Texas Chiropractic Act, creates the Texas Board of Chiropractic Examiners and governs the registration, examination, licensure, and practice of chiropractors. Your letter requesting an opinion states:

The Texas Board of Chiropractic Examiners respectfullyrequests your opinion on the Board's authority to adopt a rule authorizing
a chiropractor to use the title 'chiropractic physician.'

We understandyou to askwhether the board is authorized to promulgate a rule permitting a chiropractor to use the title "chiropractic physician" in addition to one of the designations that chiropractors are required by article 4590e,V.T.C.S, to employ. We conclude that it does.

Administrative agencies may promulgate rules when ;zrss authority to do so is conferredby statute or when implied authority is necessary to accomplish the purpose of the statute. Gerstv. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968); Gulf Land Co. v. Atlantic Refining C0.I 131 S.W.Zd 73 (Tex. 1939). Hence, when a statute expressly authorizesan agency to regulate an industry or profession, it impliedlyauthorizes the adoption of regulationsto accomplishthat purpose. Railroad Comm'n

V. Shell Oil Co,, 161 S.W.2d 1022 (Tex.1942):pallas Countv &ail Bond Bd. v. Stein 771 S.W.Zd 577 (Tex.App. - Dallas 1989,writ denied). Whether promulgated on the basis of express authority or impliedauthority, any rules adopted

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must be reasonable and not in excess of any powers delegated. Ferst v. Oak Cliff Sav. 8 LQgn Ass'n, Suora; 218 S.W.2d

Texa 412 S%.2d te Bd. of Examiners in Ovtometrvv.

:USta(Tex. Caru

1967), cert. denied 389 U.S. 5; (1968),the Texas Supreme Court upheld a ruie, denominated the ProfessionalResponsibilityRule, adopted **by** the board that, inter al&l regulatedthe trade names that optometrists could employ. The statute did not specifically confer express authority on the board to regulate in this
area. The court construed the following statutory language
as impliedlyconferring the requisite authority:

The Board shallhave the power to make such rules and regulations not inconsistent with this law asmay be necessary for the performance of its -duties,the regulation of the practice of optometry and the enforcement of this Act.

Id. at 309.

In upholding the rule, the court declared:

We conclude that the court of civil appeals erred in its holding that the **Profes** sional Responsibility Rule added new and inconsistentprovisions to the OptometryAct. To e th r e rule's orovisions are inharmonv with the
aener 1 obiectives of the act and referable of it to an: consistentwith one **or** more s Spec' c he ifi oroscriotions. We believe that t .Leaislature.bv investina the Board with broad -ma ' owers ' enforcethe
m f thi A t and '(for1the reoulation ent 0 's c' Of ODtOmetrV.’ COntemD of he D t t rat ice lated that S owers to

11 aenerallv classified in co rect the ev' s r article 4563. or some other orovision of the potometrv Act. If these rule-making powers did not authorize the Board to regulate evils not encompassed in the specificwording of the act, they would be nothing more than meaningless excess. (Emphasisadded.)

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L at 313; see also Jtee

. Barn 303 S.W.Zd 376 (Tex. 1957) (holding that boardvpossessed implied authority to adopt rule that regulated certain advertising by optometrists).
Subsection (d)of section 4 of article 4512b,V.T.C.S., confersbroad authority on the Texas Board of Chiropractic Examiners to promulgate rules governing the practice of chiropractic:

The Board shall adopt guidelines for educationalpreparation and acceptablepractices for all aspects of the practice of chiropractic.

Under the authority of the above-cited cases,we construe this section to confer on your board the implied authority to promulgate the rule aboutwhich you ask.

It is suggested,however, that section 3 of article 4590e,V.T.C.S., the HealingArt IdentificationAct, prohibits the use by a licensee of your board of any title or designationnot set forth specificallytherein and thereby precludesyour board from adopting the rule aboutwhich you inquire. Section 3 of article 4590e,V.T.C.S., provides:

Every person licensed to practice the healing art heretofore or hereafterby either the Texas State Board of Medical Examiners, the State Board of Dental Examiners, the Texas Board of Chiropractic Examiners, the Texas State Board **of** Examiners in Optometry, the State Board **of** Chiropody Examiners and the State Board .of Naturopathic Examiners shall in the professionaluse of his name on any sign, pamphlet, stationery, letterhead, signature, or on any other such means of professional identification, written or printed, designate in the manner set forth in the Act the system of the healing art which he isby his licensepermitted to practice. The following are the legally required identifications,one of which must be used by practitioners of the heal&a art:
(1)If licensedby the Texas State Board of Medical Examiners on the basis of the degree Doctor of Medicine: ghvsician and/or

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surgeon,M.D.: doctor, M.D.: doctor of medicine, M.D.:
(2)If licensedby the Texas State Board of Medical Examiners on the basis of the degree Doctor of Osteopathy: phvsicia and/or surgeon, D.O.; Osteopathicphvsici: and/or surgeon:doctor, D.O.; doctor of osteopathy: osteopath: D.O.
(3)If licensed **by** the State Board of Dental Examiners: dentist: doctor, D.D.S.; doctor **of** dental surgery:D.D.S.;doctor of dentalmedicine, D.M.D.
(4)If licensedbv the Texas Board of Chi .- JrODraCtiC Examiners: ChirODraCtOr. . doctor, '

. Q,C.: doctor of ChiroDractlc.D.C2
(5)If licensedby the Texas State Board of Examiners in Optometry: optometrist; doctor, optometrist; doctor of optometry: O.D.
(6)If a practitioner of the healing art is licensedby the State Board **of** Podiatry Examiners,he shalluse one of the following identifications:chiropodist:doctor, D.S.C.; Doctor of Surgical Chiropody:D.S.C.; podiatrist; doctor, D.P.M.; Doctor **of** Podiatric Medicine: D.P.M.;
(7)If licensedby the State Board of Raturopathic Examiners: Rat **r** nathic Dhvslcl n phvsician. N.D.; doctor 0: Naturopathy;N.E.: doctor, N.D.
Violation of article 4590e,V.T.C.S., is a misdemeanor, punishableby a fine upon conviction of the first two violations and a fine or licenserevocationupon conviction **of** a third. Id. §§ 5, 6.

We disagree that section 3 of article 4590e, V.T.C.S., prohibits the use by a licensee of your board of the title "chiropracticphysician" and thereby precludesyour board frompromulgating a rule permitting the designation. We do not construe article 4590e,V.T.C.S., to set forth an exclusive list of titles that those professionals regulated by the statutemay employ. Rather,we construe the statute to

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set forth, in effect,minimum requirements with which the regulatedprofessionals must comply. In other words, we construe section 3 to require the use by a regulatedprofessional of one of the designations set forth in the section, but it is silentwith regard to whether such a licensee may employ any additional designation. We construe section 3 in this fashion for two reasons.
**First,** the language **of** section 3 simplywill not sustain a reading that the specifieddesignations comprise an exclusive list. The relevant languageof section 3 provides: "The following are the legally required identifications,one ofwhich m st healing art

. . . . Iqu be used by practitioners of the (Emphasis added.) There is no language in the act purporting to limit those designations that a regulatedprofessional may use to only those set forth. So long as one of the specified designations is used, no violation of section 4590e,V.T.C.S.,will occur. Second,we think that our construction comports with the evident intention of the legislaturewhen it enacted the Texas Chiropractic Act and its apparent recognition that persons engaged in the practice of chiropractic employ designations other than those set forth in section 3 of article 4590e. Section 1 of article 4512b, V.T.C.S., provides in pertinentpart:

**A** person shall be regardedas practicing chiropracticwithin the meaning of this Act if the person:

. . . . (3)holds himself out to the public as a chiropractor **or** uses the term 8chiropractor,g *chiropractic,' ‘p of chiropractic,* 'D.C.,'or connectionwith his name. (Emph%s added.)

It is clear that the legislaturemeant to includewithin the ambit of the act those personswho employ not only the term %hiropractor," but also those personswho employ "any derivative" of those specifiedterms.

**Moreover,** we conclude that the evidentpurpose of the act would in no way be undermined if, in addition to the list of designations fromwhich a licensee is required to choose,he is also permitted to employ the title "chiropractic physician." Section 3 of article 4590e, V.T.C.S.,

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authorizes each of the professionalsregulatedby the act to employ the term "doctorI in a way that identifies the healing art by which he ispermitted by his license to practice, and authorizes osteopaths and naturopaths to employ the term "physiciann as well. The act already permits a practitioner of chiropracticto employ the term wdoctorO1

if, in addition,he identifiesthat the healing art forwhich he possesses a license is that of chiropractic. The terms wdoctor" and "physician*'are functionally synonymous:thus a chiropractor's not be misleading.1 employing the term would See., M.i,Llina v. State,a150e ",.W, 434 (Tex.Crim.App. 1912);Waltersv. Bull-a M int n nc Service. IX,, 291 S.W.2d 377 (Tex.Civ.App. - Dallas 1956,
no writ): Barfield v. State, 110 P.2d 316 (Okla.Grim. APP. 1941);mmas **V.** CarltonHosierv Mills, 81A.2d 365 (N.J. 1951); see alsoV.T.C.S. art. 4567b (practiceof podiatry to include,inter alig, a "podiatricphysician"); Op. Okla. Att'y Gen. No. 78-173 (1978)(holding that "physicianl' includes the term llchiropractortl forpurposes **of** a statute licensingpersonswho practice the healing arts)! ;2 U.S.C. 5 1395x(r) (defining l'physician'l to include, an er alia, "chiropractor" for purposes **of** federalpublic health and welfare statutes).

We conclude that the Texas Board of Chiropractic Examiners is authorized to promulgate a rule permitting its licenseesto employ the term @'chiropractic physician," if that phrase is employed in addition to,one of the terms or phrases that the board's licenseesare required to employ by article 4590e,V.T.C.S.

1. We note that our constructionof article 4590e, V.T.C.S., in no way conflicts with Maceluchv. Wvsonq 680 F.2d 1062 (5th Cir. 1982). In that case the co&t of appealsupheld the statute's requirementthat an osteopath had to employ the designation set forth in section 3 and could not employ the term "M.D.l' instead. The court held, inter lia that permitting identi:ying term an osteopath to employ the "M. D." would mislead the public into assuming that his degree was a degree as a "doctor of medicine." We are here holding that a chiropractor is required to employ one of the terms or phrases set forth in section 3, but that he is not precludedby that statute from employing an additional term **or** phrase if that term or phrase does not serve to mislead the public.

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SUMMARY
The Texas Board of Chiropractic Examiners is authorizedto promulgate a rule permitting its licensees to employ the term %hiropractic physician," if the phrase is employed in addition to one of the terms or phrases that the board's licensees are required to employby article 4590e,V.T.C.S.

J!k JIM MI+TTOX Attorney General of Texas

MARYKELLER FirstAssistant Attorney General

Lou MCCREARY ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RENEA HICKS SpecialAssistant Attorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Jim Moellinger AssistantAttorney General

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