### E ,~~-~ToRNEY GENERAL OF%-EXAS

December 29, 1971

Hon. Jack Burton, O.D. Chairman Texas Optometry Board 603West 13,thStreet Austin, Texas 78701
Dear Dr. Burton: Opinion No. M- 1029
Re: Construction ofArticle 4552-5.09, Vernon's Civil Statutes (theTexas Optometry Act), relating toprice advertising by optometrists.
Your recent letter requesting the opinion of this office concerning the referenced matter states as follows:

"TheTexas Dptometry Board respectfully submits the attached Board Interpretation of Section 5.09 of the Texas Optometry Act for anAttorney General's Opinion as to its validity." Attached to your letter, and styled "Board Interpretation Number Six", is the following:

"It is the interpretation of this Board that the Texas Legislature by the enactment of Section 5.09 of the Texas Optometry Law prohibits price advertising by an optometrist whether itbe specific or fixed prices or by phrase or slogan such as 'economical price', 'one lowprice', 'popularprice' or any other terms or phrases making reference toprice." Article 4552-5.0,9,Vernon's Civil Statutes, which is theportion of the Texas Optometry Act at issue inyour request, provides as follows:

"(a) No optometrist shall publish or display, orknowingly cause orpermit tobe published or displayed by newspaper, radio, television,
-5018-Hon. Jack Burton, page 2 (M-1029)

window display; poster, sign, billboard, or any other advertising media, any statement or advertisement of any price offered or charqed by him for any ophthalmic services ormaterials, or any statement or advertisement concerning ophthalmic lenses, frames, eyeglasses, spectacles, orparts thereof which is fraudulent, deceitful, misleading orwhich in anymanner whatsoever tends to create amisleading impression, including statements or advertisements ofbait, discount, premiums, gifts, or any statements or advertisements of a similar nature, import, ormeaning. "(b) This section shall not operate toprohibit optometrists who also own, aerate, ormanage a dispensing opticianry from advertising inany manner permitted under any section of this bill so long as such advertising isdone in the name of the dispensing opticianry and not in thename of the optometrist inhis professional capacity." (Emphasis added) The basic issue involved inyour request iswhether Subsection (a)of Section 5.09, supra, prohibits any and all price advertising by an optometrist, orwhether that Section only prohibits price advertising which is fraudulent, deceitful, ormisleading.

Through your Board Interpretation Number Six, quoted supra, your Board,has indicated that it adheres to the former construction of Section 5.09.

The interpretation of Section 5.09 rendered by your Board is entitled togreat weight, as

"Thecourts will ordinarily adopt and uphold a construction placed on a statute by an executive officer or department charged with its administration, if the statute isambiguous or uncertain, and if the construction so given it is reasonable. In other words, the judiciary will adhere to an executive or departmental construction of an ambiguous statute -5019-Hon Jack Burton, page 3 (M-1029)

unless it is clearly erroneous or unsound, or unless itwill result in serious hardship or injustice, though the court might otherwise have been inclined toplace a different construction on the act. "The rule above stated isparticularly applicable to an administrative construction of long standing, where valuable interests or rights have been acquired or contracts have been made.,orwhere's law that has been uniformly construed by those charged with its enforcement has been reenacted without a change of language.
. . .'53 Tex;‘Jcr;;:2d 259-62, Statutes, Sec. 177. See alsoArmco Steel Corp. v. Texas Employment Com'n. 386 S.W.2d 894 (Tex.Civ.App. 1965, error ref. n.r.e.); United States v. 525Company, 342 F2d 759 (5thCir. 1965).

It ishelpful to examine thebackground and legislative history ofArticle 4552-5.09 inorder to ascertain whether the Legislature, inenacting thatArticle in 1969, intended to effect a change in the prior law concerning price advertising by optometrists. The precursor ofArticle 4552-5.09 was Article 4565g, enacted in 1957, which provided inpart, as follows:

I#

. . . It shall be unlawful for any person, firm or corporation in this state . . .topublish

. . .any statement or advertisement concerning ophthalmic lenses, frames, eyeglasses, spectacles, or parts thereof which is fraudulent, deceitful, misleading, orwhich inany manner whatsoever tends to create amisleading impression, including statements or advertisements ofbait, discount, premiums, price, gifts, or any statements or advertisements of a similar nature, import ormeaning
. . . 0 Shortly after the enactment ofArticle 45659, supra,' the Supreme Court ofTexas had occasion to construe themeaning of the above-quoted provisions in the case of Shannon v. Rogers, -5020-Hon. Jack Burton, page 4 (M-1029)

159Tex. 29, 314 S.W.2d 810 (1958).andheld thatArticle 4565g prohibited only misleading price advertising. In soholding, the Supreme Court stated:

"In thisbehalf, it is the opinion of the Court that theAct must be construed as prohibiting only suchprice advertising as ismisleading. Such is clearly the sense of those more general words of theAct immediately preceding the clause, 'including
. . .advertisements of : . .price
. . . ':and this clause, it is believed, being subordinate to the general language, isat least reasonably susceptible of the construction ofmerely mentioning, forgreater certainty, certain particular aspects of advertising, which, ifmisleading, would fallwithin the scope of the general language. This interpretation is felt to be strongly supported by the language of the caption, which clearly refers only to statements that are misleading, and,where interpretation isrequired, may properly be looked to as evidence of the legialative intent. The interpretation isbelieved to be supported also by the consideration that, had the legislature intended such a drastic prohibition as one against all price advertising, itwould normally have used language more positively evidencing its intent.
. . .II159Tex. at 46-37, 314 S.W.2d at 815-16.
An analysis of Section 5.09,bearing inmind the wording ofArticle 4565g and the reasoning of the Shannon case, supra, indicates that the Legislature intended that the Section was tomake at least three distinct prohibitions: (1) the prohibition of an optometrist's publishing or displaying any statement or advertisement of any price offered or charged by him for any ophthalmic services ormaterials: (2) the prohibition of an optometrist's making any statement or advertisement concerning ophthalmic lenses, ormaterials of like ilk, which is fraudulent, deceitful, ormisleading: and (3) the prohibition of an optometrist's making any statement or advertisement which tends to create amisleading impression, including statements ofbait, discounts, premiums, gifts, et cetera. -5021-Hon. Jack Burton, page 5 (M-1029)

We, therefore, hold that the Legislature, in enacting Section 5.09 and changing its language concerning price advertising from that found inArticle 4565g, supra, intended to prohibit allprice advertising by an optometrist, and that the Legislatuzdid not intend that only misleading price advertisingwas tobe circumscribed by the scope of Section 5.09.

In support of this holding, we are mindful of your Board's interpretation of Section 5.09 for thepast two years. We must presume that the Legislature, with that interpretation before it, failed to change itat the 1971 legislative session and thus*isin accord with your construction. Your interpretation, aspointed out hereinabove, isentitled to great weight, and our courts will not set the same aside unless it isclearly erroneous or unsound or results in serious hardship or injustice, none ofwhich appears.

Our holding isalso supported when Article 774, Texas Penal Code, is read in consonance with Section 5.09. That Article, relating to the prohibition directed against members of various professions soliciting patronage (including optometrists), provides as follows:

"Thepreceding Article shall not be construed to prohibit the inserting in anewspaper of any advertisement of suchperson's business, profession and place ofbusiness, or from advertising by handbills andpaying for services in distributing same."
It is apposite to note thatArticle 174makes no mention of, nor does it sanction, price advertising.

The highest courts of our sister states have construed similar statutes regulating price advertising by optometrists, andhave held that such statutes prohibited allprice advertising whether such prices are advertised in fixed amounts, or by such terms as "economical price", "one lowprice", "popularprices", or other terms of similar import. See, e.g., Donahue v.Andrews. 47 P.2d 940 (Ore.Sup. 1935); Bedno v. Fast, 95N.W. 2d 396 (Wis. Sup.), cert. denied, 360U.S. 931 (1959);Michon v. Louisiana State Board of Optometry Examiners, 121 So.Zd 565 (La-Sup. 1960);Akin v. -5022-Hon. Jack Burton, page 6 (M-1029)

Louisiana State Board of Optometry Examiners, 150 So.2d 807 (La.Sup. 1963); Louisiana State Board of Optometry Examiners v. Pearle optical ofAlexandria, 177 So.2d 164 (La.Sup. 1965).

It is, of course, manifest that a state legislature may constitutionally regulate advertising by aprofessional group, and especially one in the field ofpublic health. Kee v. Baber, 157Tex. 387. 303 S.W.2d 376 (1957). Abelson's Inc. v. New Jersey State Board of Optometry, 75A.2d 867 (N.J.Sup. 1950); Semlar v. Oreqon State Board, 294U.S. 608 (1935): Head ;, 374U.S. 424 (1963);Ritholz v. Indiana State Board of Reqistration &Examination, 45 F.Supp. 423 (D.Ind. 1937); Melton v. Carter, 164 S.W.Zd 453 (Ark.Sup. 1942); Baikin v. The Board of Optometry, 75 Cal.Rptr. 337 (Cal.Sup. 1969); Economy Optical Co. v. Kentucky Board of Optometric Examiners, 310 S.W;'2d783 (Ky.Sup. 1958): State v. Rones, 67 So2d 99 (La.Sup. 1953): Commonwealth v. Ferris, 25N.E.2d 378 (Mass.Sup. 1940): Seifert v. Buhl Optical Co., 268 N.W. 784 (Mich.Sup. 1936): New Mexico Board of Examiners inOptometry v. Roberts, 370 P.2d 811 (N.M.Sup. 1962); Finley Strauss, Inc. v. University of State of New York, 62N.Y.S,2d 892 (N.Y.App.Div. 1946):Springfield v. Hurst, 56N.E.2d 185 (OhioSup. 1944); Ullom v. Boehm,,142A.2d 19 (Pa.Sup. 1958); Ritholz v. Commonwealth, 35 SiE.2d 210 (Va.Sup. 1945); Ritholz v. Johnson, 17 S.W.Zd 590 (Wis.Sup. 1945); Patterson Druq Company v. Kinqery, 305 F.Supp. 820 (W.D.Va. 1969);

Inview of the foregoing, you are advised that Section 5.09 of the Texas Optometry Act prohibits all price advertising by an optometrist, without regard towhether such price advertising ismisleading, and that the Section also prohibits price advertising by means of non-specific or non-fixed slogans such as "economical price", "one lowprice", "popular prices", or other terms of similar import. SUMMARY ---_--_ Article 4552-5.09, Vernon's Civil Statutes (theTexas Optometry Act), prohibits all price advertising by optometrists, regardless ofwhether
-5023-Hon. Jack Burton, page 7

such price advertising (M-1029)

ismisleading, and also prohibits the advertising of prices by such nonspecific slogans such as "economical price", "one lowprice", "popular prices", or other terms of similar import. truly yours,

Prepared byAustin C. Bray, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Robert Giddings John Banks Bob Gauss Bob Lattimore
SAM MCDANIEL Staff LegalAssistant
ALFRED WALKER Executive Assistant
NOLAWHITE First Assistant

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