E ,~~-~ToRNEY GENERAL 

OF%-EXAS 

December 29, 1971 

Hon. Jack Burton, O.D. 

Chairman 

Texas Optometry Board 

603 West 13,th Street 

Austin, Texas 78701 

Dear Dr. Burton: 

Opinion No. M- 1029 

Re: Construction of Article 

4552-5.09, Vernon's Civil 

Statutes (the Texas Optometry 

Act), relating to price advertising by optometrists. 

Your recent letter requesting the opinion of this 

office concerning the referenced matter states as follows: 

"The Texas Dptometry Board respectfully 

submits the attached Board Interpretation of 

Section 5.09 of the Texas Optometry Act for 

an Attorney 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 it be specific or fixed prices or by 

phrase or slogan such as 'economical price', 

'one low price', 'popular price' or any other 

terms or phrases making reference to price." 

Article 4552-5.0,9, Vernon's Civil Statutes, which is 

the portion of the Texas Optometry Act at issue in your request, 

provides as follows: 

"(a) No optometrist shall publish or display, or knowingly cause or permit to be 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 or materials, or any 

statement or advertisement concerning ophthalmic 

lenses, frames, eyeglasses, spectacles, or parts 

thereof which is fraudulent, deceitful, misleading 

or which in any manner whatsoever tends to create 

a misleading impression, including statements or 

advertisements of bait, discount, premiums, gifts, 

or any statements or advertisements of a similar 

nature, import, or meaning. 

"(b) This section shall not operate to prohibit optometrists who also own, aerate, or manage 

a dispensing opticianry from advertising in any 

manner permitted under any section of this bill so 

long as such advertising is done in the name of the 

dispensing opticianry and not in the name of the 

optometrist in his professional capacity." (Emphasis 

added) 

The basic issue involved in your request is whether 

Subsection (a) of Section 5.09, supra, prohibits any and all 

price advertising by an optometrist, or whether that Section 

only prohibits price advertising which is fraudulent, deceitful, 

or misleading. 

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 to great weight, as 

"The courts will ordinarily adopt and uphold 

a construction placed on a statute by an executive 

officer or department charged with its administration, 

if the statute is ambiguous 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 it will result in serious hardship or 

injustice, though the court might otherwise 

have been inclined to place a different construction on the act. 

"The rule above stated is particularly 

applicable to an administrative construction 

of long standing, where valuable interests or 

rights have been acquired or contracts have 

been made., or where'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 also Armco Steel Corp. v. Texas Employment Com'n. 

386 S.W.2d 894 (Tex.Civ.App. 1965, error ref. n.r.e.); United 

States v. 525 Company, 342 F2d 759 (5th Cir. 1965). 

It is helpful to examine the background and legislative 

history of Article 4552-5.09 in order to ascertain whether the 

Legislature, in enacting that Article in 1969, intended to effect 

a change in the prior law concerning price advertising by optometrists. The precursor of Article 4552-5.09 was Article 4565g, 

enacted in 1957, which provided in part, as follows: 

I# 

. . . It shall be unlawful for any person, 

firm or corporation in this state . . . to publish 

. . . any statement or advertisement concerning 

ophthalmic lenses, frames, eyeglasses, spectacles, 

or parts thereof which is fraudulent, deceitful, 

misleading, or which in any manner whatsoever tends 

to create a misleading impression, including statements or advertisements of bait, discount, premiums, 

price, gifts, or any statements or advertisements of 

a similar nature, import or meaning . . . 0 

Shortly after the enactment of Article 45659, supra,' 

the Supreme Court of Texas had occasion to construe the meaning 

of the above-quoted provisions in the case of Shannon v. Rogers, 

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Hon. Jack Burton, page 4 (M-1029) 

159 Tex. 29, 314 S.W.2d 810 (1958). and held that Article 4565g 

prohibited only misleading price advertising. In so holding, 

the Supreme Court stated: 

"In this behalf, it is the opinion of the 

Court that the Act must be construed as prohibiting only such price advertising as is misleading. Such is clearly the sense of those 

more general words of the Act immediately preceding the clause, 'including . . . advertisements 

of : . . price . . . ': and this clause, it is 

believed, being subordinate to the general language, 

is at least reasonably susceptible of the construction of merely mentioning, for greater certainty, 

certain particular aspects of advertising, which, 

if misleading, would fall within 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 is required, 

may properly be looked to as evidence of the legialative intent. The interpretation is believed to 

be supported also by the consideration that, had 

the legislature intended such a drastic prohibition 

as one against all price advertising, it would normally have used language more positively evidencing 

its intent. . . .II 159 Tex. at 46-37, 314 S. W.2d 

at 815-16. 

An analysis of Section 5.09, bearing in mind the 

wording of Article 4565g and the reasoning of the Shannon case, 

supra, indicates that the Legislature intended that the Section 

was to make 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 or materials: (2) the prohibition of an optometrist's making any statement or advertisement concerning ophthalmic lenses, or materials of like ilk, 

which is fraudulent, deceitful, or misleading: and (3) the 

prohibition of an optometrist's making any statement or advertisement which tends to create a misleading impression, including statements of bait, 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 in Article 4565g, supra, intended to 

prohibit all price advertising by an optometrist, and that the 

Legislatuzdid not intend that only misleading price advertising was to be 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 the past two years. 

We must presume that the Legislature, with that interpretation 

before it, failed to change it at the 1971 legislative session 

and thus *is in accord with your construction. Your interpretation, as pointed out hereinabove, is entitled to great weight, 

and our courts will not set the same aside unless it is clearly 

erroneous or unsound or results in serious hardship or injustice, 

none of which appears. 

Our holding is also 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: 

"The preceding Article shall not be construed 

to prohibit the inserting in a newspaper of any 

advertisement of such person's business, profession 

and place of business, or from advertising by handbills and paying for services in distributing same." 

It is apposite to note that Article 174 makes 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, 

and have held that such statutes prohibited all price advertising 

whether such prices are advertised in fixed amounts, or by such 

terms as "economical price", "one low price", "popular prices", 

or other terms of similar import. See, e.g., Donahue v. Andrews. 

47 P.2d 940 (Ore.Sup. 1935); Bedno v. Fast, 95 N. W. 2d 396 (Wis. 

Sup.), cert. denied, 360 U.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 of Alexandria, 177 So.2d 164 (La.Sup. 1965). 

It is, of course, manifest that a state legislature 

may constitutionally regulate advertising by a professional 

group, and especially one in the field of public health. Kee 

v. Baber, 157 Tex. 387. 303 S.W.2d 376 (1957). Abelson's Inc. 

v. New Jersey State Board of Optometry, 75 A.2d 867 (N.J.Sup. 

1950); Semlar v. Oreqon State Board, 294 U.S. 608 (1935): Head 

;, 374 U.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;'2d 783 (Ky.Sup. 1958): 

State v. Rones, 67 So2d 99 (La.Sup. 1953): Commonwealth v. Ferris, 

25 N.E.2d 378 (Mass. Sup. 1940): Seifert v. Buhl Optical Co., 268 

N.W. 784 (Mich.Sup. 1936): New Mexico Board of Examiners in Optometry v. Roberts, 370 P.2d 811 (N.M.Sup. 1962); Finley Strauss, Inc. 

v. University of State of New York, 62 N.Y.S,2d 892 (N.Y.App.Div. 

1946) : Springfield v. Hurst, 56 N.E.2d 185 (OhioSup. 1944); Ullom 

v. Boehm,, 142 A.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); 

In view of the foregoing, you are advised that Section 

5.09 of the Texas Optometry Act prohibits all price advertising 

by an optometrist, without regard to whether such price advertising is misleading, and that the Section also prohibits price 

advertising by means of non-specific or non-fixed slogans such as 

"economical price", "one low price", "popular prices", or other 

terms of similar import. 

---_--_ SUMMARY 

Article 4552-5.09, Vernon's Civil Statutes 

(the Texas Optometry Act), prohibits all price 

advertising by optometrists, regardless of whether 

-5023- 
Hon. Jack Burton, page 7 

such price advertising 

(M-1029) 

is misleading, and also 

prohibits the advertising of prices by such nonspecific slogans such as "economical price", 

"one low price", "popular prices", or other terms 

of similar import. 

truly yours, 

Prepared by Austin 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 Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLAWHITE 

First Assistant 

-5024-