,. ., 

&.. .,, 

.Awe- 11. TEXAS 

WILL WILSON 

A-l-l-0-X GENERAL 

Honorable Bill Hollowell 

Chairman, State Affairs Committee 

House of Representatives 

Austin, Texas 

Opinion No. W-1045 

Re: Constitutionality of 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 Legislature which provides 

for a licensing of clinical laboratories and clinical laboratory directors through the Texas State Health Department. 

A clinical laboratory and clinical laboratory dlrector are defined in Section. 2 of the Act aa~follone:~ 

" 0)) 'Clinical Laboratory' means 

any place, establishment or institution 

organized and operated for the practical 

application of one or more of the fundamental sciences by the use of specialized 

apparatus, equipment and methods for the 

purpose of obtaining scientific data which 

may be used by a licensed physlclan 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) 'Clinical Laboratory Director' 

means any person licensed under this chapter 

to engage fn the direction of a clinical 

laboratory." 
. . 

Honorable Bill Hollowell, page 2 (WW-1045) 

Other sections of the Act make It unlawful to operate a clinlcal,laboratory or act as a director of such unless 

duly licensed by the licensing agency, the State, Health Department, and give to the Health Department certain authority in 

connection with the appllcatlons for and Issuance of the llcensea and the establishment of rules and regulations necessary 

for the proper administration of the provisions of the Act. 

House Bill 828 contains but one subject which is 

expressed in its title and the body of the Bill conforms to the 

caption and Is, therefore, in compliance with the provisions of 

Section 35 of Article III of the Constitution of Texas. 

Section 31 of Article XVI of the Constitution of 

Texas provides: 

"The Legislature may pass laws prescribing the qualifications of practitioners 

of medicine In this State, and to punish 

persons for malpraatlce, 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 

Individuals to practice medicine without requiring such ind~i-.- 

viduals to meet the reaulrements for license to nractlce medicine. Wilson v. State-Board of Naturopathic Examiners, 298 

S.W.2d 94b (Clv.App. 1957 , error re ., n.r.e., aer . en., 

U.S. 870, reh.den., 355 U.S. 920); Schllchtlng v. Texas St% 

Board of Medical Examiners, 158 Tex. 279, 310 S.W.2d 557 (1958). 

In view of the foregoing, the constitutionality of 

House Bill 828 Is dependent on whether Its provisions would 

authorize an 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%ng the 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, 

. . . ~By the pleadings of appellant, 

his testimony, and the stipulations of the 

parties, It was conclusively established 
Honorable Bill Hollowell, page 3 (WW-1045) 

that: Appellant was. em loyed by Thomas 

Clinic for a salary of 500 per month 

and he received no fees; the Clinic was 

owned by Ralph C. Thomas, who was not a 

medical doctor and no medical doctor owned 

any interest in the clinic; appellant performed medical services for the clinic and 

the fees for such services were collected 

by the clinic. Such conduct on the part 

of appellant was In effect 'permitting, 

or allowing, another to use his license 

or certificate to practice medicine 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 E xaminers In Optometry v. 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 ~of House 

~111 828 specifically provides: 

"Nothing in this Act or the licensing 

hereunder shall be construed as authorizing 

or permitting any person to practice medlalne 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 laboratory work done by clinical laboratories licensed hereunder shall be 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 conducted by 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 

designated by the person making such 

request." 

In view of the provisions of Section 15, an Individual 

licensed in accordance with the provisions of House Bill 828 

is not permitted to perform any act which would conatltute the 

practice of medicine in this State. On the contrary, such 

individuals perform chemical analyses and tests conducted by 

the laboratory for the use and benefit of lndlvlduals licensed 

to practice medicine in this State. Therefore, It Is our opfnion that the provisions of House Bill 828 do not violate the 

provisions of Section 31,of Article XVI of the Constitution of 

Texas. 

We do not find any provision in House Bill 828 which 

violates any other provision of the Constitution of 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 Constitution of Texas 

and Its provisions 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