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.Awe- 11. TEXAS WILL WILSON A-l-l-0-X GENERAL

Honorable Bill Hollowell Chairman, State Affairs Committee House of Representatives Austin, Texas OpinionNo. W-1045
Re: Constitutionalityof House Bill 828 of the 57th LeglsDear Mr. Hollowell: lature, relating to licensing of clinical laboratories and clinical laboratory directors.
You have requested an opinion on the constltutionality of House Bill 828 of the 57th Legislaturewhich provides for a licensing of clinical laboratoriesand clinical laboratory directors through the Texas State Health Department.

A clinical laboratoryand clinical laboratory dlrector are defined in Section. 2 of the Act aa~follone:~
"0)) 'ClinicalLaboratory'means any place, establishmentor institution organized and operated for the practical application of one or more of the fundamental sciencesby the use of specialized apparatus, equipmentand methods for the purpose of obtaining scientificdata which may be used by a licensedphyslclan as an aid in ascertaining the presence,progress and/or source of disease In human beings, or the state of health of an individual; provided, however, x-ray laboratories shall not be included in this definition. "CC) 'ClinicalLaboratoryDirector' means any person licensedunder this chapter to engage fn the direction of a clinical laboratory.". .

HonorableBill Hollowell,page 2 (WW-1045)

Other sections of the Actmake It unlawful to operate a clinlcal,laboratoryor act as a director of suchunless duly licensedby the licensing agency, the State, Health Department, and give to the Health Department certain authority in connectionwith the appllcatlons for and Issuance of the llcensea and the establishmentof rules and regulationsnecessary for the proper administrationof the provisions of the Act.

House Bill 

### 828 containsbut one subjectwhich is expressed in its title and the body of the Bill conforms to the caption and Is, therefore, in compliancewith the provisions of Section 

### 35 of Article III of the Constitutionof Texas.

Section 

### 31 of Article XVI of the Constitutionof Texas provides:"The Legislaturemay pass laws prescribing the qualificationsof practitioners of medicine In this State, and to punish persons formalpraatlce, but no preference shall ever be given by law to any schools of medicine."
In view of the provisions of Section 

### 31 of Article XVI above quoted, the Legislature Is not authorlied to allow Individualsto practicemedicine without requiring such ind~i-.- viduals to meet the reaulrements for license to nractlcemedicine. Wilson v. State-Board of NaturopathicExaminers, 298 S.W.2d 94b (Clv.App. 1957, error re .,n.r.e., aer . en., U.S. 

### 870,reh.den., 

### 355U.S. 920); Schllchtlngv. Texas St% Board of Medical Examiners, 

### 158 Tex. 279, 310 S.W.2d 

### 557 (1958).

In view of the foregoing, the constitutionalityof House Bill 

### 828 Is dependent on whether Itsprovisionswould authorizean individual licensed thereunder, to perform acts which constitute the practice of medicine as defined by Article 4510, Vernon's Civil Statutes and Article 741, Vernon's Penal Code.
In conetrL%ngthe pr0vlsiOas,of ths Medical Practice A0O~~~~f~~V?t%f4

held'in F.W.B.'RoCkett,M.D. v. State Board of Medical Examiners, 287 S.W.2d 190 (Civ.App.195b, errorref., n.r.e.): I,

. . .~Bythe pleadings of appellant, his testimony, and the stipulationsof the parties, Itwas conclusivelyestablishedHonorable Bill Hollowell, page 3 (WW-1045)

that: Appellantwas.em loyed by Thomas Clinic for a salary of 500 per month and he received no fees; the Clinicwas owned by Ralph C. Thomas,who was not a medical doctor and no medical doctor owned any interest in the clinic; appellantperformed medical services for the clinic and the fees for such serviceswere collected by the clinic. Such conduct on the part of appellantwas In effect 'permitting, or allowing, another to use his license or certificate to practicemedicine in this State, for the purpose of treating, or offering to treat, sick, Injured, or afflicted human beings', which conduct is prohibited by the provisions of Section 12 of Art. 4505, Vernon's Ann.Civ.Stats.,and Is made a ground for the forfeiture of a license to practice medicine by the provisions of Art. 4506, Vernon's Ann.Clv.Stats. See Section 5, Art. 4505."
See also Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376 (1957);Texas State Board of Examiners In Optometryv. Carp, -Tex.--, 343 S W 26 242 (lgbl); and Attorney Qeneral's Opl Ion No. ~~-278 il957). nWhile the definitions in Section 2 do not clearly specify or limit all acts which might or might not be performed by a clinical laboratory,~It Is noted that.Sectlon 15~ofHouse ~111 828 specificallyprovides:

"Nothing in this Act or the licensing hereunder shallbe construedas authorizing or permitting any person to practicemedlalne or to furnish the services of a physician for the practice of medicine, and nothing in this Act shall repeal or In any manner affect any provision of the code relating to the praatice of medicine, and nothing In this Act shall affect any clinical laboratory or laboratories operated by the State of Texas, the Federal Government, or any subdivision thereof, or a physician licensed in the arts of healing. All laboratorywork done by clinical laboratories licensed hereunder shallbe done only upon request of a physician licensed in the healing arts by the State of Texas, or a physician licensed in the state in which he practices, and all reports of the findings made in the tests conductedby the laboratory shall be reported only to the person requesting. ”

Honorable Bill Hollowell,page.4 (WW-1045)

said test or.to the person or persons designatedby the personmaking such request."
In view of the provisions of Section 15, an Individual licensed in accordancewith the provisions of House Bill 

### 828 is not permitted to perform any actwhich would conatltute the practice of medicine in this State. On the contrary, such individualsperform chemical analyses and tests conductedby the laboratory for the use and benefit of lndlvlduals licensed to practicemedicine in this State. Therefore, It Is our opfnion that the provisions of House Bill 

### 828do not violate the provisions of Section 31,of ArticleXVI of the Constitutionof Texas.
We do not find any provision in House Bill 

### 828which violates any otherprovision of the Constitutionof Texas and you are, therefore, advised that its provisions are aonstltutlonal and valld.

SUMMARY

House Bill 

### 828 of the 57th Legislature, relating to licensing of clinical .laboratdriesz does not. " authorize the performance of acts

. which constitute the practice of medicine and is;therefore, not In violation of,Sectlon 31 of Article XVI of the Constitutionof Texas and Itsprovisions are conatltutlonal and valid.
Yours vefy truly,
WILL WILSON Attorney General of Texas

JR:afg
APPROVED: OPINION COMMITTFX W. V. Geppert, Chairman. . .

Honorable Bill Hollowell,page 

### 5 (WW-1045)

Leon Pesek Jack Price Ray Loft123 Llnward Shivers
REVIEWED FOR THE ATTORNiY GENERAL BY: Morgan Nesbltt