JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

5121475.2501 

Telex 910/674-1367 

TelecoDiar 512/475-0266 

714 Jackson, Suite 700 

Dallas, TX. 75202-4506 

2141742.6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533.3464 

r 

,001 Texas, Suite 700 

Houston. TX. 77002-3111 

71312236666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5236 

4309 N. Tenth, Suite S 

McAllen, TX. 76501.1665 

5121662.4547 

200 Maln Plaza. Suite 400 

San Antonio, TX. 76205.2797 

5121225-4191 

An Equal Oppofiuniiyl 

Affirmative Action Employer 

The Attorney General of Texas 

February 16. 1984 

Honorable Margaret Moore 

Travis County Attorney 

P. 0. Box 1748 

Austin, Texas 78767 

Opinion No. JM-125 

Re: Constitutionality of rules 

of Texas State Board of Medical 

Examiners relating to acupuncturists 

Dear Ms. Moore: 

You have requested our opinion as to whether the current 

regulations of the Texas State Board of Medical Examiners concerning 

the practice of acupuncture violate the constitutional rights of 

acupuncture patients and practitioners. We find that four of the 

regulations do not meet the "reasonable relationship test." 

The Medical Practices Act, article 4495b, section 1.03, 

subsection 8(A), V.T.C.S., defines as "practicing medicine" those 

who shall diagnose, treat, or offer to treat any 

disease or disorder, mental or physical, or any 

physical deformity or injury by any system or 

method and to effect cures thereof and charge 

therefor, directly or indirectly, money or other 

compensation. 

For purposes of this opinion, we will assume that this definition 

encompasses all who perform acupuncture for compensation. Thompson V. 

Texas State Board of Medical Examiners, 570 S.W.Zd 123, 127, (Tex. 

CIV. APP. - Tyler 1978, writ ref'd n.r.e.), citing several 

out-of-state decisions, held that acupuncture was within the 

definition of practicing medicine. Nevertheless, a number of other 

healing srts or professions which otherwise would constitute the 

practice of medicine have been excluded from the definition of 

"practicing medicine" by the legislature. See, e.g., articles 4512(b) 

(chiropractors); 4512~ (psychologists); 4512d (athletic trainers); 

4512e (physical therapists); 4513-4528c (nurses); 4542a (pharmacists); 

4543-4551h (dentists); 4552-1.02 (optometrists); 456?-4575a 

(podiatrists), V.T.C.S. Acupuncture has not been so excluded. 

The Texas State Board of Medical Examiners Is charged with the 

primary responsibility for regulating the practice of medicine, and 

p. 529 
Honorable Margaret Moore - Page 2 (JM-125) 

has the authority to issue regulations concerning acupuncture. 

V.T.C.S. art. 4495b. The question raised by your letter is whether 22 

Texas Administrative Code, sections 183.1-183.12 meet constitutional 

standards. These sections establish a system in which physicians 

supervise acupuncturists. In addition to giving the physician general 

responsibility for the acupuncture practitioner, the regulations are 

very specific in regard to the place and manner of the supervision. 

Among the requirements of the regulations are the following: (1) the 

acupuncturist is not allowed to work in a location "physically 

separate" from the supervising physician, 22 T.A.C. 9183.6(a); (2) a 

physician may supervise only one acupuncturist, 22 T.A.C. 5183.7; (3) 

there may be no separate billing for services rendered by the 

acupuncturist, 22 T.A.C. $183.5; and (4) an acupuncturist must wear a 

name tag with printing at least 3/8 inches in height with the 

designation "Mr., Miss, Mrs. or Ms." and surname plus "acupuncturist." 

22 T.A.C. §183.4(c). 

The "reasonable relationship test" is the basic constitutional 

standard for determining whether state statutes and regulations comply 

with the Fourteenth Amendment to the United States Constitution. The 

reasonable relationshi~p test requires that regulations and statutes be 

rationally related to a constitutionallv nermissible nuroose. Vance 

V. Bradley 440 U.S. 93 (1979); Sai Antonio Indepen'dent School 

District v.'Rodrigues, 411 U.S. 1 (1973). In the case of the board's 

regulations regarding acupuncture, protection of the public health is 

unquestionably a permissible purpose. Thus, here the only issue under 

this test is whether the board's regulations are reasonably calculated 

to effect that purpose. 

In Wensel V. Washington, (D.C. Super. Ct. 1975), reprinted as the 

appendix to Lewis V. District of Columbia Commission on Licensure to 

Practice the Healing Art, 385 A.2d 1148, 1154 (D.C. 1978), the court 

used the "reasonable relationship test" to examine regulations which 

permitted only a licensed physician or someone under the direct and 

immediate supervision of a licensed physician to perform acupuncture 

and required that the acupuncturist not receive fees from patients but 

instead be an employee of the supervising physician. The parallels to 

the Texas regulations are quite obvious. The court in Wensel found 

that local medical schools did not train physicians in acupuncture and 

that doctors in the District of Columbia did not have skill and 

knowledge in the area. The court also found that the acupuncture 

regulations, which purported to protect the public health, in fact 

authorized licensed physicians to administer or supervise acupuncture 

treatment, notwithstanding their total lack of knowledge of 

acupuncture, and prevented knowledgeable and skilled individuals from 

practicing the art. The court held that under such facts the entire 

body of regulations was without a rational basis and therefore 

violated the due process clause of the United States Constitution. 

p. 5:o 
L 

Honorable Margaret Moore - Page 3 (JM-125) 

The court in Andrew6 V. Ballard, 498 F. Supp. 1038, 1051 (S.D. 

Tex. 1980)) which held unconstitutionally void earlier regulations of 

the Texas Board of Medical Examiners respecting acupuncture, found 

that "Texas medical schools . . . do not presently offer formal 

training in either the theory or practice of acupuncture." You state 

that this continues to be the case. 22 Texas Administrative Code, 

sections 183.1-183.12 require that a supervising physician submit 

information on his or her professional background, including medical 

education, internship, residency, hospital staff positions, and "such 

other information the board deems necessary, especially including his 

or her fsmiliarity with the practice of acupuncture." However, you 

state that the board approves supervising physicians without actually 

examining or testing their knowledge of or competency in the field of 

acupuncture. This failure of the board to examine or test sponsoring 

physicians' competence in the particular field of acupuncture and the 

continuing absence of formal training in acupuncture in the state's 

medical schools parallel the fact findings of the court in Wensel that 

resulted in the invalidation of acupuncture regulations of the 

District of Columbia. 

These facts become of greater constitutional significance when 

they are viewed in the context of the four specific provisions of the 

Texas regulations which were referred to above. We can find no 

rational relationship between protecting the public health and (1) 

restricting an acupuncturist from having "an office independent of or 

physically separate from the supervislng physician" without a relevant 

description of the work prohibited in that office or regardless of the 

proximity of the office to the supervising physician and his ability 

to supervise, (2) allowing only one acupuncturist per supervising 

physician, without regard to the physician's competence, (3) 

preventing separate itemized billing for acupuncturist services, or 

(4) compelling the wearing of lapel pins. Hence, the respective Texas 

Administrative Code provisions, i.e., the last sentence of subsection 

(a) of section 183.6, the first sentence of section 183.7, section 

183.5, and subsection (c) of section 183.4, are void on their face. 

When regulations such as these are coupled with a regulatory scheme in 

which there is no meaningful examination into the competency of the 

sponsoring physician in the particular field of acupuncture and apply 

in a state whose medical schools offer no formal training in 

acupuncture, then, as in Wensel, the regulations as a whole may not be 

reasonably related to safeguarding the public health and could 

therefore be unconstitutional in their entirety. 

SUMMARY 

Four specific Board of Medical Examiners 

Regulations, concerning acupuncture, 22 Texas 

Administrative Code, sections 183.4(c), 183.5 the 

last sentence of section 183.6(a), and the first 

p. 531 
Honorable Margaret Moore - Page 4 (JM-125) 

sentence of section 183.7, are in violation of the 

Fourteenth Amendment of the United States 

Constitution because there is no rational 

relationship between them and the protection of 

the public health. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Colin Carl 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

p. 532