DAN MORALES 

ATTORNEY CENERAL 

QMfice of the !Zlttornep @eneral 

&ate of ?ICexae 

The Honorable Hugo Berlanga 

Chairman, Committee on Public Health 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

March 30.1998 

Opinion No. DM-472 

Re: Use of injectable substances by licensed 

chiropractors, and related questions (RQ-925) 

Oliver R. Smith, Jr., D.C. 

President 

Texas Board of Chiropractic Examiners 

333 Guadalupe, Tower III, Suite 82.5 

Austin, Texas 78701 

Dear Representative Berlanga and Dr. Smith: 

Both of you ask whether the use of injectable substances by a licensed chiropractor in the 

treatment of biomechanical conditions of the spine and musculoskeletal system of the body is within 

the scope of practice of chiropractic as defined in V.T.C.S. article 4512b. By “injectable substances” 

we understand you to mean substances that are injected into a person with a needle. We conclude 

that the use of a needle to inject substances or for any purpose other than the drawing of blood for 

diagnostic purposes or the performance of acupuncture as defined by the Medical Practice Act, 

V.T.C.S. article 4495b, section 6.02(l), is not within the scope of practice of a licensed Texas 

chiropractor.’ We also answer Dr. Smith’s questions regarding the use of certain drugs in the 

practice of chiropractic. 

A person may practice chiropractic in this state only if licensed to do so by the Texas Board 

of Chiropractic Examiners, and then only in compliance with the provisions of V.T.C.S. article 

4512b. See V.T.C.S. art. 4512b, $5 Sa(a), 14a. A person is regarded as practicing chiropractic 

within the meaning of article 4512b if the person: 

(1) uses objective or subjective means to analyze, examine, or 

evaluate the biomechanical condition of the spine and musculoskeletal 

system of the human body; 

IWe assume for purposes of this opinion that a chiropractor is not otherwise licensed as a practitioner who is 

authorized to use needles in the scope of his or her practice. 
The Honorable Hugo Berlanga - Page 2 

Oliver R. Smith, Jr., DC. 

(DM-472) 

(2) performs nonsurgical, nonincisive procedures, including but not 

limited to adjustment and manipulation, in order to improve the 

subluxation complex or the biomechanics of the musculoskeletal system; 

or 

(3) holds himself out to the public as a chiropractor of the human 

body or uses the term “chiropractor,” “chiropractic,” “doctor of 

chiropractic,” “D.C.,” or any derivative of those terms in connection with 

his name. 

Id 9 1. 

Article 4512b expressly excludes certain acts from the practice of chiropractic. Id. 5 13a. 

In 1995, the Seventy-fourth Legislature amended article 4512b to include “incisive or surgical 

procedures” among the excluded acts. Id. $ 13a(a); see Act of May 29, 1995,74th Leg., RX, ch. 

965, $ 18, 1995 Tex. Gen. Laws 4789,4803? For purposes of article 4512b, the phrase “incisive 

or surgical procedure” includes but is not limited to “making an incision into any tissue, cavity, or 

organ by any person or implement,” but does not include “the use of a needle for the purpose of 

drawing blood for diagnostic testing.” V.T.C.S. art. 4512b, 5 13a(a), (b). Your questions require 

us to determine whether use of a needle other than for the purpose of drawing blood is an incisive 

or surgical procedure. 

We considered a closely related question in Attorney General Opinion DM-415. The issue 

there was whether the practice of acupuncture’ is within the scope of practice of a licensed 

chiropractor who is not also a licensed acupuncturist. Attorney General Opinion DM-415 (1996). 

Central to our determination was a consideration of whether acupuncture, defined in part as “the 

insertion of an acupuncture needle” into the human body, is an “incisive or surgical procedure” under 

?rior to ammdmen~ section 13a provided only that chiropractors may not use “surgery, drugs that require a 

prescription to be dispensed, x-ray therapy, or therapy that exposes the body to radioactive material.” Act of 

May 29,1995,74th Leg., RS., ch. 965, # 18,1995 Tex. Gen. Laws 4789,4803. 

‘When Attorney General Opinion DM415 was issued, V.T.C.S. article 4495b, which governs the practice of 

acupuncture in Texas, defmed acupuncture as: 

(A) the insertion of an acupuncture needle and the application of moxibustion to 

specific areas of the human body as a primary mode of therapy to treat and mitigate a 

human condition; and 

(B) the admiaistmioa of thermal or electrical treahnents or the recommendation of 

dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction 

with the treatment described by Paragraph (A) of this subdivision. 

V.T.C.S. art. 44954 5 6.02. 

P. 2666 
The Honorable Hugo Berlanga - Page 3 

Oliver R. Smith, Jr., D.C. 

(DM-472) 

article 45 12b. Id. at 4. We reasoned that because the legislature expressly excluded from the range 

of procedures that are incisive or surgical “the use of a needle for the purpose of drawing blood for 

diagnostic testing,” the legislature considered the use of a needle for the purpose of drawing blood 

to be an incisive or surgical procedure. Id. at 5. Seeing no distinction between the use of a needle 

for drawing blood and the use of acupuncture needles, we concluded that acupuncture was not within 

the scope of practice of chiropractic. 4 Likewise, seeing no distinction between the use of a needle 

for drawing blood and the use of a needle for injections, we conclude that the use of needles to inject 

substances into a person is excluded from the scope of practice of chiropractic. 

We find support for our conclusion in the legislative history of V.T.C.S. article 4512b. The 

statute was amended in 1995 for the purpose of clarifying the “considerable confusion. . about the 

scope of chiropractic.” Debate on S.B. 718 on the Floor of the Senate, 74th Leg., R.S. 

(May 15, 1995) (statement of Senator Moncrief) (tape available from Senate Staff Services). The 

use of needles by chiropractors was a central issue in the debate. Aa first introduced, Senate Bill 718 

would have excluded from the scope of chiropractic “invasive or surgical procedures,” but did not 

define the term invasive. S.B. 718, 74th Leg., R.S. (1995) (introduced version). The Senate 

Committee on Health and Human Services amended the bill to exclude from the definition of 

invasive certain procedures, namely, the “examination of the ear, nose, and throat or drawing of 

blood for the purposes of diagnostic testing.“5 Id. (committee substitute). A witness testifying in 

support of the bill remarked that because acupuncture is an “invasive” procedure, the bill would 

prohibit acupuncture. Hearings on S.B. 718 Before the Senate Health and Human Serv. Comm., 

74th Leg., R.S. (Apr. 12, 1995) (testimony of Dee Ann Newbald, Texas Acupuncture Association) 

(transcript available Tom Senate Staff Services). 

The bill was amended on the senate floor to change “invasive” to “incisive” and to allow 

chiropractors to perform acupuncture and needle electromyogram (“EMG”),6 but only if certified by 

r‘his year, the Seventy-iif% Legislature amended the deftition of acupuncture in V.T.C.S. article 4495b to 

define acupuncture, in part, as the “nonsurgical, nonincisive insertion of an acupunchwe needle.” Act of May 28,1997, 

75th Leg., R.S., ch. 1170, 1997 Tex. Sess. Law Sew. 4418.4418 (to be codified as an amendment to V.T.C.S. art. 

4495b, $? 6.02(l) (effective Sept. 1, 1997)). Because acupuncture is now defmed in the acupunchue statute as a 

“nonsurgical, nonincisive” procedure, it is not an “incisive or surgical procedure” excluded by the chiropractic statute 

from the scope of the practice of chiropractic. Therefore, OUT conclusion in DM-415 that needle acupuncture is not 

within the scope of the practice of chiropractic has been superseded by statute. See Attorney General Opinion DM-471 

(1998). For all other uses of needles, however, the reasoning applied in DM-415 remains valid. 

?t has been argued that the phrase excluding the use of needles for diagnostic testing was inserted not to make 

an exception to the prohibition on the use of needles, but lo illustrate by example that the use of a needle is permitted. 

We do not fmd support for this assertion in the legislative histmy of Senate Bill 718. To the contrary, comments during 

debate on the bill illustrate that the members understood that the provision would exclude the use of needles for any 

purpose other than those expressly allowed. See discussion infra note 7. 

6An electromyogram is “a record of the intrinsic electric activity in a skeletal muscle.” MOSEY’S MEDICAL, 

NURSING, & ALLIED HEALTH DICTIONARY 534 (4th ed. 1994). The data is obtained “by applying surface electmdes 

or by insexting a needle electrode into the muscle and observing electrical activity with an oscilloscope and a loud 

(continued...) 

p. 2667 
The Honorable Hugo Berlanga - Page 4 (DM-472) 

Oliver R. Smith, Jr., D.C. 

the Board of Chiropractic Examiners to perform such procedures. S.B. 718,74th Leg., R.S. (1995) 

(as reprinted in S.J. of Tex., 74th Leg., R.S. 2059 (1995)). It has been argued that the term 

“invasive” was changed to “incisive” so as not to include acupuncture and other uses of needles 

within the definition of prohibited practices. However, even after the term “incisive” was substituted 

in, the senate continued to except from its definition the use of needles for diagnostic testing, 

acupuncture, and needle electromyogram. In our view, if the senate understood the term “incisive” 

not to include the use of needles, it would not have excepted from that definition the use of needles 

for certain purposes. 

The provisions of Senate Bill 718 were added by Representative Uher as an amendment to 

Senate Bill 673 on the floor of the house, but without provisions expressly permitting acupuncture 

and needle EMG. Representative Janek offered an additional amendment to prohibit manipulation 

under anesthesia stating: “This amendment would take out any ability by the chiropractors to put 

needles in people.” Debate on S.B. 673 on the Floor of the House, 74th Leg., RX (May 22, 1995) 

(statement of Rep. Janek) (transcript available from Senate Staff Services).’ In our view, the 

legislature intended the use of needles for any purpose other than the drawing of blood for diagnostic 

purposes to be excluded from the scope of chiropractic. 

We note that in Attorney General Opinion DM-443 (1997), this office considered whether 

the performance of needle EMG is within the scope of the practice of licensed physicians and 

physical therapists. The State Board of Medical Examiners has the statutory authority to determine 

what constitutes the practice of medicine, which is broadly defined. See V.T.C.S. art. 4495b, 

$ 1,03(a)(12). The Texas Board of Physical Therapy Examiners is charged with the enforcement of 

the Physical Therapy Act. See id. art. 4512e, 4 2G. Both boards, the medical board by resolution 

and the physical therapy board by rule, determined that needle EMG is within the scope of the 

practice of their respective professions. We concluded in DM-443 that the boards are entitled to 

deference in their interpretations of the acta they are charged with administering and enforcing, and 

their decisions that needle EMG is within the scope of their practices were reasonable ones. 

In this case, the scope of chiropractic is not so broadly defined. Both the language of 

V.T.C.S. article 4512b and its legislative history indicate to us that the legislature intended to 

exclude the use of needles from the scope of the practice of chiropractic except for certain purposes. 

The Board of Chiropractic Examiners could not adopt a rule inconsistent with the statute. 

6(...contin”ed) 

speaker.” Id. 

‘During the debate, Representative Steve Ogden remarked that the “se of needles is not ordinarily viewed as 

part of chiropractic treabnenf and that Representative Janek’s mendment would enswe it remained true. He said: “It 

would seem to me like without you ane”d”~“t, there would be a significant deparhre from the way chiropractic has 

represented itself in my district, which is an altemative to tbe more conventional freatment that would involve needles, 

drugs, anesthesia.” Debate on S.B. 673 on the Floor of the Senate, 74th Leg., RS. (May 22, 1995) (statement of Rep. 

Ogden) (transcript available from Senate Staff Services). 

p. 2668 
The Honorable Hugo Berlanga - Page 5 

Oliver R. Smith, Jr., D.C. 

@M-472) 

The chiropractic board’s second question concerns the use by chiropractors of “dangerous 

drugs.” V.T.C.S. article 4512b, section 13a(a)(2), excludes from the scope of the practice of 

chiropractic “the prescribing of controlled substances or dangerous drugs or any drug that requires 

a prescription.“* The Health and Safety Code defines a “dangerous drug” aa: 

a device or a drug that is unsafe for self-medication and that is not 

included in Schedules I through V or Penalty Groups I through 4 of Chapter 

481 (Texas Controlled Substances Act). The term includes a device or a drug 

that bears or is required to bear the legend: 

(A) Caution: federal law prohibits dispensing without prescription; or 

(B) Caution: federal law restricts this drug to use by or on the order of 

a licensed veterinarian. 

Health & Safety Code $483.001(2); see Gov’t Code 5 311.01 l(b) (Code Construction Act) (“Words 

and phrases that have acquired a technical or particular meaning, whether by legislative definition 

or otherwise, shall be construed accordingly.“). Thus Texas law considers a substance to be a 

“dangerous drug” when the federal Food and Drug Administration (“FDA”) requires the substance 

to bear a prescription legend. The board tells us that in some instances, although the FDA requires 

a legend, some manufacturers do not include the legend in their packaging and promotion. We 

understand you to ask, therefore, whether a chiropractor may be found to be in violation of V.T.C.S. 

article 4512b if he or she prescribes a dangerous drug that does not carry the FDA-required legend.9 

We conclude that a chiropractor may be found to be in violation in such a case. 

The statute defines a dangerous drug to include a drug that bears or is required to bear a 

prescription legend. Health & Safety Code 5 483.001(2). Thus a drug that is required to bear a 

prescription legend is a dangerous drug even if it does not actually bear the legend. We believe it 

is the duty of a responsible health care provider to determine whether a drug not bearing a legend 

is nevertheless required to bear a legend. Furthermore, the critical factor in determining whether a 

drug is a dangerous drug is not whether it carries an FDA-required legend, but rather whether it is 

‘unsafe for self-medication.” A drug that is “‘unsafe for self-medication” falls within the definition 

*A violation of article 4512b is punishable by the revocation or suspension of a chiropractor’s license, or the 

probation or reprimand of a licensee. V.T.C.S. art. 45 12b, $ 14(a). The board may impose an administrative penalty 

in an amount not to exceed $1,000 for each day the violation occurs or continues, and the violator is also liable to the 

state for a civil penalty of $1,000 per day. Id. $5 14=(a), 19a(a), (b). The Health and Safety Code also provides for 

criminal penalties for the possession or delivery of a dangerous drug. See Health and Safety Code ch. 483, subch. C. 

9you ask about a chiropractor’s “use” of dangerous drugs in his or her practice, while the statute speaks with 

respect to the “prescrib[ingJ” of dangerous drugs. For purposes of this opinion, we assume that prescribing and using 

are synonymous. 

p. 2669 
The Honorable Hugo Berlanga - Page 6 (DM-472) 

Oliver R. Smith, Jr., D.C. 

of a dangerous drug even if it does not carry or is not required to carry a prescription legend.‘O Thus 

a chiropractor may be found to be in violation of article 45 12b if he or she prescribes a drug that is 

“unsafe for self-medication” whether or not the drug carries an FDA-required legend. 

The chiropractic board’s third question also relates to the use of dangerous drugs. The board 

tells us that some manufacturers include legends on drugs even though the FDA does not require a 

legend on the particular drug. The board asks if such a drug falls within the definition of a 

dangerous drug. We believe that it does. Again, the Health and Safety Code includes within the 

definition of “dangerous drug” a drug “that bears or is required to bear” a prescription legend. 

Health & Safety Code 5 483.001(2) (emphasis added). The definition is not limited to drugs that are 

required to bear the legend. 

The chiropractic board’s fourth question is: ‘In the State of Texas who is the source or body 

that has the definitive authority of defining a controlled substance, dangerous drug or drug that 

requires a prescription?” We find no single “definitive authority” on the question of classifying 

drugs. Certainly, the Texas Legislature has the power to define what constitutes a controlled, 

dangerous, or prescription drug, and it has done so. Health and Safety Code chapter 481 lists 

specific drugs that are deemed to be controlled substances. Health & Safety Code $481.002(5). The 

Commissioner of Health may, with the approval of the Texas Board of Health, add to, delete from, 

or reschedule substances on the list. Id. 5 481.038. Health and Safety Code chapter 483 defines a 

dangerous drug as a drug that is “unsafe for self-medication,” including drugs that bear or are 

required by the FDA to bear a prescription legend. Thus, to some extent, the FDA determines what 

is a dangerous drug under Texas law. 

Finally, the chiropractic board asks whether chiropractors may use injectable substances in 

the scope of their practice that are not controlled substances, dangerous drugs, or substances 

otherwise barred by the Chiropractic Act. Again, the use of a needle for any purpose other than the 

drawing of blood for diagnostic purposes or the practice of acupuncture is not within the scope of 

practice of a licensed Texas chiropractor. We conclude that the use of any injectable substance is 

not within the scope of the practice of chiropractic. 

“‘Be statute provides that dangerous drugs “include” prescription drugs. In accordance with the Code 

Const~cticm Act, we conshue “includes” as a term of enlargement and not of liitation or exclusive enumeration. See 

Gov’t Code g 311.005(13). 

p. 2670 
The Honorable Hugo Berlanga - Page 7 (DM-472) 

Oliver R. Smith, Jr., DC. 

SUMMARY 

The use of a needle to inject substances or for any purpose other than the 

drawing of blood for diagnostic testing or for the practice of acupuncture is 

not within the scope of practice of a licensed Texas chiropractor. A 

chiropractor may be found to be in violation of V.T.C.S. article 4512b, 

prohibiting the prescription by a chiropractor of dangerous drugs, if the 

chiropractor prescribes a drug that does not bear, but is required to bear, a 

legend stating that federal law prohibits dispensing the drug without a 

prescription. A drug that bears a prescription legend falls within the 

definition of “dangerous drug” found in Health and Safety Code section 

483.001(2). 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Barbara Griftin 

Assistant Attorney General 

p. 2671