I - 

June 29, 1953 

Hon:Austin F. Anderson Opinion No. S-60 

Criminal District Attorney 

.San Antonio, Texas Be: Constitutionality of 

&Ftlcle 4590a V.C.S. 

relating to the pracDear Hri Anderson: tice of naturopathy. 

Your letter presents the following question to 

this off@6 for consideration: 

1) "Is Article 4590d V.C.S., unconstijztlonal as being an atiempt by the Legislature to give preference to a particular 

school of medicine in vio$ation of Texas 

Constitution Article XVI li 31 In that it enables such school to diagnose and treat human 

ills without equal standards of education and 

qualifications?" 

2) "If the first question is answered 

in the negative, then does Article 45908 

V.C.S. conflict irreconcilably with and &y implication repeal, Article 4510 V.C.S., in that 

the definition of naturopathy is in fact encomDassed by the definition of the practice of 

mediclne?n 

Section 31 of Article XVI of the Constitution 

of Texas reads as follows: 

"The Legislature may pass laws prescribing the qualifications of practitioners of 

medicine in this State, and to punish persons 

for mal-practice but no preference shall ever 

be given by law c o any schools of mediclne.m 

Article 739, V.P.C., reads in part as follows: 

"It shall be unlawful for any one to practice medicine, in any of its branches, upon 

human beings wlthin the llmits of this State 

who has not registered in the District Clerk's 

office of every County in which he may reside, 

l . . " 
Hon. Austin F. Anderson, page 2 (s-60) 

The case of Dowdell v. McBride, 92 Tex. 239i 47 

S.W. 524 (1898) discusses the application of the constitutional provis i on in this language: 

"The first portion of the constitutional 

provision above quoted confers upon the leglslature general power to pass laws (1) prescribing the qualifications of practitioners 

and (2) to punish persons for malpractice. 

Continuing the same sentence, the latter part 

of the provision subtracts from such otherwise 

general power, the word 'but' being used in 

the sense of 'except,' bv ProhibitinEt the leg.- 

jSlatUre in such laws from inserting anY DrQvision makim a distinction in such auallflo+ 

tlons or Dunlshment on account of the *school 

of medicl~* to which any of such 'practitloners' or 'persons' may happen to belong. The 

first portion dealing solely with lqualifications of practitioners aa lpunishment,l aa 

there being nothing in the context to Indicate 

that the latter portion was intended to em7 

brace any wider range of subjects, we must give 

it the effect, indicated by Its situation and 

close connection with what precedes, of being 

merely a limitation upon the previous general 

power of prescribing *qualifications of practitioners' ana lpunishments.l . . .I1 (Emphasis 

Supplied) 

Pursuant to this constitutional provision, the 

Legislature enacted the Medical Practice Act (Chapter 123, 

Acts 30th Leg., 1907). What is now Article 741 of the 

Penal Code was a part of that legislation (Section 13) and 

reads as follows: 

'*Any person shall be regarded as practicing medicine within the meaning of this Chapter: (1) who shall publicly profess to be a physician or surgeon and who shall diagnose, treat, 

or offer to treat any disease or disorder 

mental or physlcd, or any physical deformjty 

or injury, by any system or method, or to effect cures thereof; (2) who shall diagnose, 

treat, or offer to treat, any disease or aisoraer, mental or physical, or any physical deformity or Injury by auy system or method or to 

effect cures thereof and charge there I or, directly or lndirec$ly, money or other compensation; 
Hon. Austin F. Anderson, page 3. (s-60) 

addition of the proviso clause, and the 

1953 amendment .adding the word tldiagnose". 

Art. 45l0, V.C.S. is identical.) 

This particular provision of the Medical Practice Act has been before the courts of this State on 

several occasions. Shortly after its enactment, its constitutionality was considered because of the contention 

that its enactment contravened the Due Process Clause of 

the Fourteenth Amendment to the United States' Constitution. Justice Holmes settled that question for all time 

upon reasoning which is unimpeachable--the importance of 

publichealth and the preservation thereof gives the State 

a dominant interest which may be exercised as police power) 

theGe is no inherent individual right to practice medicine. 

C ins v. S Q 223 U.S. 288 (1911) affirming Ex Part 

e 

Co11 s 12l%W1 501 (Tex.Crim. 1909f; Johnson v. State: 

7 S.W. 1057 (Tex.Crim. 1925). 

Thus 

practice of me b icine 

by the definition of what constitutes the 

two classes of practitioners amenable 

to the law are cleariy defined. One class consists of 

those who publicly profess to be physicians and claim to 

~effect cures, wNle the other class consists of those who 

treat or offer to.treat any disease or to effect cures ana 

charge for such services. It is very clear that the method 

or school of medicine followed by a practitioner of e t er 

class is wholly immaterial. 

(Tex.Crlm. 1916); pewman v. Sm ',",i ?$&k 

1910). 

The Medical Practice Act does not purport to regulate how any person shall treat a disease or disorder, but :. 

~. merely requires that a person demonstrate that he is well 

grounded In certain studies before he may practice medicine. 

&ewis v. State, 155 S.W. 523 (TexXrim. 1913). 

If the person possesses the statutory qualifications and is awarded a certificate to practice medicine, he 

is free to adopt any system of medical practice he desires. 

The fact that the Medical Practice Act requires a broader 
- . 

gg~a Hon. Austin F. Anderson, page 4 (S-60) 

education _ than normally required of some particular school -. 

can not be urged as a dlscriminatlon against Sucn scnool 

of medicine. Irrespective of the school of medicine or 

system of practice followed by the practitioner of medicine 

in any of these systems the general welfare of the people 

demands that the practitioner be able to readiiy detect the 

presence of disease. Johnson v. State, suDsa. As stated 

by Justice Holmes in the Collins case, sunra: 

" 

a aia&oX. 

He like others, must begin by 

It IS no answer to say that in 

many instances the diagnosis is easy,--that 

zc!y knows it when he has a cold or a toothneed&i. 

For a general practice of science is 

An osteopath undertakes to be something more than a nurse or a masseur, and the 

difference restsprecisely in a claim to great- 

'es science, which the state requires him to 

Drove. The same considerations that justify 

*&including him justify 

grades from the law. 

~;S’6~3 . 179-180, 5'+ l a 

The very purpose 

;:%:?: :::y%~y 218 

L.Ed. 987, 990, 30% 

of the Act Is to prevent incompetent persons from holding themselves out as possessing 

the qualifications to treat the public. Thus, the courts 

have uniformly held that the mode or method used in treating the public is Immaterial; the person prescribing the 

treatment must have the qualifications set out in the Metical Practice Act. The laying on of hands and prayer constitutes the practice of medicine. Singh v. State, 146 S.W. 

891 (Tex.Crim. 1912). A person practicing chiropractic and 

naturopathy was held to be practicing medicine. Bawkins v. 

&$&q, 125 S.W.2d 580 (Tex.Crim. 1939). Other cases lnvolvlng chiropractors are: 

II;I;~f~d~~su;r~ Ehrke v. Sta??w~9;~~~ 

e State, 235 S.W. 576 (Tex.Crlm. 1921). 

see the case 0: picodeme v. Bailey 

Civ.App. 1951, error ref. n.r.e.) the oniy*case mentlo&I 

the non-preference clause of the Constitution subsequent to 

the 1947 Chiropractic amendment to the Medical Practice Act. 

As to optometry prior to the Optometry Act, see Baker v* 

State, 240 S.W. 924 (Tex.Crlm. l922), and after the passage 

~of that Act see Ex Parte Halsted, .suora. As to osteopaths, 

ox Paste Colllng and Collins . State both -0 As to 

masseurs, &&worth v. State v136 S.Wl 788 (TexXrim. 

illiIlE[ S at 5 

&ate, 1;; StW.q& ?T%!&im. 

434 @(TjCrim. 1912); H~roo~~~?)' 

. 
Hon. Austin F. Anderson, page 5 (s-60) 

It must first be determined whether a naturopath, 

licensed under the provisions of the Naturopathic Act, Article 459Od, V.C.S., is engaged In the practice of medicine. 

zh;spract$ce of naturopathy is defined in that Act as fol- 

: 

9or the purpose of this Act, naturopathy and natureopathy shall be construed 

as synonymous terms, and the practice of 

naturopathy 'or natureopathy 

fined as that philosophy an a 

is hereby aesystem of the 

healing art embracing prevention. diaae men 

& byd $eake 

is, an aisma 

kf'ietgal p$&e;pepJFa~ir, light heat, cold, water 

tlon with ihe use of such su&kauces nutritional as are naturally found in a&d required by the body, excluding drugs 

gery, X-ray, and radium therapy, an cl 

Surthe 

use of X-ray equipment. 

"Nothing in this Act shall be construed to be authority for any naturopath, 

licensed hereunder to practice medicine 

as defined bv the iaws gulatina the D 

ti e of medi in in thizeState Surgeryr 

aqDe&try OEteEpathy Chiropr&tic Ch&.stian Scieice , or any &her treatment'or 

system of treatment authorized for by law, 

nor shall the provisions of this Act in any 

way or manner apply to or affect the practice of Medicine, Surgery, Osteopathy, 

Christian Science 

4 

or any other treatment 

or system of trea ment authorized and provided for by law for the prevention of 

human ills." (Emphasis supplied). 

Thus, the positive feature provides that naturopathy is the philosophy and system of the healing art embracing the prevention. diagnosis and treatme nt 

+r 

11s by certain means; 

of humaq 

and by the negative part is not to 

e construed as giving the naturopath the right to practice 

medicine. 

I~t appears that the paragraphs of the Naturopat?cCdefinition conflict with each other. Article 741, 

by defining the practice of medicine further conf&is*hhe problem for a naturopath licensed &tar this Act 
$$22 

Hon. Austin F. Anderson, page 6 (s-60) 

may treat human ills but (by the same section) if he treats 

these ills, he violates the law. 

It may be contended that this construction is too 

restrictive, but the intent of the Legislature was to set 

naturopathy aside as an independent field of endeavor separate and distince from the practice of medicine, and that 

auy provisions of the Act leading to a contrary conclusion 

must be rejected. Thus, in prohibiting the naturopath from 

practicing medicine, the intention of the Legislature was 

to permit the naturopath to act only In the realms of his 

particularendeavor without the use of drugs, surgery, etc., 

usually imputed to a practitioner of medicine. This, in 

essence, was the contention In the Balsted, case;sunra. 

Thus the question occurs as to whether the Legislature has 

the authority to make such a distinction. 

Before discussing that point, however, it should 

be noted that the cases previously cited deflnltely determine that the Medical Practice Act of 1907 

i 

as amended 

makes no distinction between schools of me icine or me t hods of treatment/but merely requires that a praoticioner, 

pass an examination proving his qualifications.~ Ashby v. 

fara of Medical Examiners, 

4C error ref.) 

142 S.W.2d, 371 (Tex.C&v.App.- 

It is also clear that the constitutional 

pro&Ion does no: prohibit a legislative definition of what 

d;rr2d what does not constitute the practice of medicine. 

B * . State, mj J&m. suura. 

It is clear that In order to practice naturopathy 

a person must treat ~diseases or disorders and attemnt to effect a cure. 

V.P.C. The 

to set aside 

ing art. 

This is the practice of medicine. A&. 741; 

question recurs on the power of the Legislature 

the practice of naturopathy as a separate healthe Halsted case, supra, a writ of habeas corDUS was sought to obtain the discharge from custodv of W.B. 

&&&ted who-had beenarrested upon charges of practicing 

chiropractic without a license. Other activities were engaged in by the defendant fin 1%iolation81 of the statute. 

The court discussed the povisions of the Chiropractic Act in 

the light of the constitutional provision and upon the question of being definite and certain. If the provisions were 

certain, it would be In violation of the constitutional provision. 

weight. 

If the law was uncertain, it would fall of Its own 

One of these conclusions was stated in the following language: 
. - 

Hon. Austin F. Anderson, page 7 (s-60) 

"Thus the legislature has carved out 

of the field of the healing art a single 

system for treating diseases and disorders, 

and.has given it special tkeatment,.llm%ting the use thereof to those only who qualifyunder the terms of this Act. That 

legislation violates the non-preference 

such 

clause of Art. 1.6, Section 31, of our State 

Constitution definitely appears." 

The Halsted, case m, distinguishes the practice~ of ~chiropraotic from Jhe practice of dentistry and 

optometry under the non-preference clause of the'constitution (Art. XVI Section 31) as being the treatment of the 

whole human bo a y rather than a segment. Art. 741, V.P.C. 

Su3usa distinction ~cannot be made in the case of naturo- 

. The Halsted case is squarely in point and the following language used in that case substantiates the posltion taken here: 

n Assuming, then that~under the 

Act beioie'us,, the Legislature has set up, 

recognized, and defined chiropractic as a 

system, means,~ and method for the treatment 

of diseases and disorders of the human body, 

and that practitioners thereof are authorized 

to treat by chiropractic, patients for diseases and disorders it is evident that the 

Legislature has preierred such science and 

such practitioners over all others engaged in 

doing the same thing that is, in treating 

the human body for diseases and disorders because the chiropractor is not required to have 

the same educational qualifications nor is he 

required, as a condition precedent to his 

right to treat patients, to pass a satisfactory examination upon the same subjects 

that are required of all others similarly situated." 

The principles announced in that case, when applied to the question presented, conclusively demonstrate 

that the qualification and educational requirements imposed 

by the Naturopathic Act are not identical nor even substantially the same as those of the Medical Practice Act. Contrast Article 4 9Od, Sections 3 8, and 9, V.C.S. with 

Articles 4500 ? 501 and 4503 f.C.S. Nor does the Naturopathic Act reieal OS modify the Medical Practice Act. Article 459Od, Section 5, V.C.S. 
Hon. Austin F. Anderson, page 8 (S-60) 

The Basic Science Law, Chapter 95 Acts of the 

5lst Legislature 

disturb the cone i usions herein expressed, for that law 

1949, Article 459Oc, V.CA, does not 

merely provides that before a person is permitted to take 

an examination for a license to practice the healing art, 

he must present to the State Board of Examiners in Basic 

Sciences a certificate of proficiency in certain enumerated studies. Article 45905 V.C.S. (Sections 1 ana 3). 

These provisions have beenconstrued as additional requirements to those imposed by the Acts requiring the examination by the different schools of medicine. stroua 

136 s.w.2d 1025 (Ark.Sup. 1940 ap .aism. 311 

%!%$ (1940); Attly Gen. Op. V-988 (19507. 

The Basic Science Law d0e.s not purport to set 

up standards for the practice of medicine. Section ,l of 

that Act reads as follows: 

"go nerson shall be uermitted to take 

an examination for a license to practice 

the healing art or any branch thereof, or 

i be granted any such license unless he has 

presented to the Board or olficer empowered 

to,;;.sue such a license as the applicant 

, a certificate of proficiency in anatomy, physiology, chemistry, bacteriology, 

pathology, and hygiene and public health, 

hereinafter referred to as the basic sciences, issued by the State Board of Examlners in the Basic Sciences.n (Emphasis 

supplied) 

The emergency clause contains an added reason 

for this construction. It reads in part as follows: 

Wet. 26. The importance to the public 

of the provisions of this Act and the necessitv for further safeauardinp the g nting 

cn of 1 ce ses 0 trht heal 

~+&g contained in this Act, . . .'I (Emphasis 

suPPl+d) 

Neither can it be contended that the Healing Arts 

Identification Act, chapter 154, Acts 52nd Legislature, 1951, 

Article 45900; V&S., in auy manner affects the problem 

presented here. That Act merely requires that a person who 

is licensed to practice the healing art identify the system 

he follows by the placing of proper identification after his 
-. c 

Hon. Austin F. Anderson, page 9 (s-60) 

name under certain circumstances. The' captionclearly 

shows this to be the.only..purpose of .the Act.and Section 2 then specifically provides that' the.'aefSnition 

of "healing arts.18 is only for the purpose of that Act. 

The three very able briefs submitted for.consideration,advance the ~position that the galsted case 

is not determinative of the question presented. E'or. 

the reasons stated above, that position can not be sus- 

_ .taine& ~'T' 

It is a fundamental concept of our jurispruden& that the. actions of the Legislature are, entitled 

to every--consideration reasonably upholding their' con-, 

stitutionality. Indulging every presumption possible. 

still leaves us with the inescapable conclusion that 

the Legislature has preferred one school of medicine .. 

over another by the lessening of the qualifications and 

standards of education required of a naturopath. Thus, 

no~matter how worthy this classification might be and 

no matter what beneficial results would be attained if 

the Act were upheld, the Constitution is controlling 

and this legislation does not conform. 

The Naturopathic Act violates the provisions 

of Art. XVI, Sec. 31 of the Constitution of Texas since 

it gives a preference to one segment of the healing arts. 

To rule otherwise would require a holding that the Act 

is uncertain and indefinite in defining the practice of 

naturopathy and thus unconstitutional. 

Tour first question is'answered affirmatively 

thereby rendering an answer to your second question uunecessary. 

The Naturopathic Act, Article 45!& 

V.C.S. violates the provisions of Art. 

XVI P 31 of the Constitution of Texas in 

tha4 it gives a preference to one segment 

of the healing arts. To rule otherwise 

would require a holding that the Act is 
$# 

Hon. Austin F. Anderson, page 10 

uncertain and indefinite and thus unconsti- i 

tutional. Ex Par e H 

(Tex.Crim. 1944).t 

alstec& 182 S.w.2a 479 

APPFlovED: 

Phillip Robinson 

Appellate Division 

C. K. Richards 

Reviewer 

Robert S. Trotti 

First Assistant 

John Ben Shepperd 

Attorney General 

EMM:wb 

(s-601 

Pours very thly, 

JOHN B$N SEQ'PEBD 

Attorney General 

BY 

Elbert M. Morrow 

Assistant