THE ATTORNEY GENERAL OF -XAS

AUSTIN 1% TEXAS WVILI. WILSON ATFORNEY GENERAL July 25, 1960

Mr. Carl C. Hardin, Jr. Executive Secretary Texas State Board of Dental ?Zxaminers Austin, Texas OpinionNo. w-893
Re: Does the Texas State Board of Dental Examiners have the authority to prohibit Dentists from advertising In telephone directoriesby ads similar to the following: "FalseTeeth & Repairs Dear Mr. Hardin: - One Day Service."

Your request for an opinion reads in part as follows:
"Wehave had several requests to

stop the directory advertising of several dentists inmetropolitan areas. These ads are similar to the attached. "!Ihls departmentwill appreciate your advisingwhether the attached is in violation and can be stoppedby Board action." The advertisementreferred to in your request consists of a listing in the "yellow"section of a telephone directory inwhich the dentisthas among other things put his name in boldface type in a border along with other Information,as follows:

"FalseTeeth & Repairs - One Day Service" Article 752b of Vernon's Penal Code reads in part as follows: "Article752b. Unprofessional conduct-_

Mr. Carl C. Hardin, Jr., Page 2 (w-893)

"It shall be unlawful for any person, firm, or corporationto engage in or be guilty of any unprofessional conduct in the practice of dentistry,directly or indirectly. Any 'unprofessional conduct,' as used herein,means and includesany one or more of the following acts, to wit: 14

. . . "(0) Advertisingby means of a display advertisement,display signs or glaring light signs, electric or neon signs, or such signs containing as a part thereof the representation of a tooth, teeth, bridgework,plates of teeth or any portion of the human head, or using specimens of such in display, directing the attention of the public to any such person or persons engaged in the practice of dentistry; (Emphasisadded)

Article 752~ of Vernon's Penal Codeprovides for the enforcement of Article 752b and reads in part as follows: "Article 752~. Licenses,Refusing, Revoking, Cancelling,and Suspending of "Section4. The State Board of Bental Examiners shall, and It shallbe their duty, and they are hereby authorized to revoke, cancel or suspend any license or licenses thatmay have been issuedby such Board, if in the opinion of a majority of such Board, any person or persons to whom a licensehas been issuedby said Board to practice dentistry in this State, shallhave, after the issuance of such license, violated any of the provisions of the Statutes of the State of Texas relating to the practice of dentistry inMr. Carl C: Hardin, Jr., Page 3 (~-893)

this State,~

or any of the provisions of Chapter 7, Title 12 of the Penal Code of the,State of Texas, or any amendments thatmay hereafter be made thereto. All revocations, cancellations or suspensionsof licensesby the Texas State Board aminers shallbe made provided.

P,riorto 1947 Section (o),of Article 752b did of Dental Exas hereinafter

not Include the first phrase (i.e.,advertisingby means of a display advertisement). This phrasewas added to Section (0)by an amendment in 1947 following thecase of State Board of Dental Examiners v. Blckham, 203 S.W. 2d 363 (nowrit history), In which the Court held that newspaper ads were not included in the term "largedisplay signs." On this point the Court.said:
"Courts cannot extend subdivision

(o),which forbids advertisingby means of 'largedisplay signs,' to newspaper advertisements, The statute limiting 'largedisplay' to 'signs,'excludes 'displayads.' 'Signs'are not 'ads.' ,It is unfortunate that the Texas Leglslature limited such acts of advertising to 'signs,'instead of providing, as is the law of Missouri, Oregon,Wisconsin, and other States to includeunlawful advertisingby means of ‘largedisplay,' either by 'signs,'or 'ads,'without limitationas to where such advertisement shallbe placed." "DisplayAdvertising"as defined by Webster's New InternationalDictionary is advertising intended to attract by its combination of copy, border, white space, illustration, etc. Webster further defines display in reference to printing as making conspicuous by large or prominent type or by varying the length of lines.
In view of the foregoing, It is our opinion that the advertismentreferred to in your request is a violation of Subdivision (0) of Article 752b, Vernon's--- .

Mr. Carl C. Hardin, Jr., Page 4 @W-893)

Penal Code. You are further advised that by virtue of Article 752c, Vernon's Penal Code, the State Board of Dental Examiners Is authorized to revoke, cancel or suspend the license of any dentist found guilty of violating Article 752b, Vernon's Penal Code.

SUMMARY Advertising in the "yellow"pages of a telephonedirectoryby means of a display advertisement is a violation of Article 752b, Vernon's Penal Code. The State Board of Dental Examiners is authorizedby Artlcle 752~ to revoke, cancel or suspend the license of any dentist found guilty of violating Article 752b, Vernon's Penal Code,
Yours very truly,
WILL WILSON Attorney General of Texas

Robert A. Rowland Assistant
RAR:mm APPROVED:
OPINION COMMITTEE Houghton Brownlee, Jr. Robert T. Lewis Thomas Burrus Bob Eric Shannon
REVIEWED FOR THE ATTORNEYGENERAL
BY: Leonard Passmore