I -



### June 29, 1953

Hon:Austin F. Anderson OpinionNo. 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., unconstijztlonalas being an atiemptby the Legislature to give preferenceto a particular school of medicine in vio$ation of Texas ConstitutionArticle XVI li 

### 31 In that it enables such school to diagnoseand treat human ills without equal standardsof educationand 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 naturopathyis in fact encomDassedby the definitionof the practice of mediclne?n Section 

### 31 of Article XVI of the Constitution of Texas reads as follows:

"The Legislaturemay 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 co any schoolsof 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 registeredin 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) discussesthe application of the constitutionalprovis

ion in this language:
"The first portion of the constitutional provision above quoted confersupon the leglslature general power to pass laws (1) prescribingthe qualifications of practitioners and (2) to punish persons for malpractice. Continuingthe same sentence,the latter part of the provision subtractsfrom such otherwise general power, the word 'but'being used in the sense of 'except,'bv ProhibitinEt the leg.- 

### jSlatUre in such laws from insertinganY 

### DrQvision makim a distinctionin 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 solelywith lqualifications of practitioners 

### aa lpunishment,l 

### aa there being nothing in the context to Indicate that the latter portionwas intended to em7 brace any wider range of subjects, we must give it the effect, indicatedby Its situationand close connection

with what precedes,of being merely a limitationupon the previous general power of prescribing *qualifications of practitioners'ana lpunishments.l

. . .I1 (Emphasis Supplied)
Pursuantto this constitutional provision,the Legislatureenacted the Medical Practice Act (Chapter123, 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 medicinewithin the meaning of this Chapter: (1) who shall publiclyprofess 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 Ior, 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 particularprovision of the Medical Practice Act has been before the courts of this State on several occasions. Shortly after its enactment,its constitutionality

was consideredbecause of the contention that its enactment contravenedthe Due Process Clause of the FourteenthAmendment to the United States'Constitution. Justice Holmes settled that question for all time upon reasoningwhich is unimpeachable--the importance of publichealth and the preservationthereof gives the State a dominant interestwhich may be exercisedas police power) theGe is no inherent individualright to practicemedicine. C ins v. S 

### Q 223 U.S. 

### 288 (1911) affirmingEx Part

e Co11 s 12l%W1 501 (Tex.Crim.

### 1909f;Johnson v. State: 7 S.W. 

### 1057 (Tex.Crim.1925).

Thus practice of me icine

b by the definitionof what constitutesthe

two classes of practitioners amenable to the law are cleariy defined. One class consists of those who publicly profess to be physiciansand claim to ~effectcures, 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 followedby a practitionerof e t er class is wholly immaterial. (Tex.Crlm.



### 1916); pewman v. Sm ',",i ?$&k 

### 1910).
The Medical PracticeAct does not purport to regulate how any person shall treat a disease or disorder,but :.
~. merely requires that a person demonstratethat he is well grounded In certain studiesbefore he may practicemedicine. &ewis v. State, 

### 155 S.W. 523 (TexXrim. 

### 1913).

If the person possesses the statutoryqualifications and is awarded a certificateto practicemedicine, he is free to adopt any system of medical practicehe desires. The fact that the Medical PracticeAct requires a broader- .

gg~a Hon. Austin F. Anderson,page 

### 4 (S-60)

education than

_ normally requiredof some particularschool

-. can not be urged as a dlscriminatlon against Sucn scnool of medicine. Irrespective of the school of medicine or system of practice followedby the practitioner of medicine in any of these systems the generalwelfare of the people demands that the practitioner be able to readiiy detect the presence of disease. Johnsonv. State, suDsa. As stated by JusticeHolmes in the Collins case, sunra:

"
a aia&oX. He like others,must begin by

It IS no answer to say that in many instancesthe diagnosisis easy,--that zc!y knows it when he has a cold or a toothneed&i. For a general practice of science is An osteopathundertakesto be something more than a nurse or a masseur, and the differencerestsprecisely in a claim to great- 'es science,which the state requireshim 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 themselvesout as possessing the qualifications to treat the public. Thus, the courts have uniformlyheld that the mode or method used in treating the public is Immaterial;the person prescribingthe treatmentmust 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 practicingchiropractic and naturopathy

was held to be practicingmedicine. 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*casementlo&I the non-preferenceclause of the Constitutionsubsequentto the 1947 Chiropracticamendmentto the Medical PracticeAct. As to optometryprior to the OptometryAct, 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$ceof naturopathyis defined in that Act as fol- : 9or the purpose of this Act, naturopathy and natureopathyshall be construed as synonymousterms, and the practice of naturopathy 'or

natureopathy fined as that philosophyan a is hereby aesystem of the healing art embracingprevention.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 nutritionalas are naturally found in a&d required by the body, excludingdrugs gery, X-ray, and radium therapy,an clSurthe use of X-ray equipment. "Nothing in this Act shall be construed to be authority for any naturopath, licensed hereunder to practicemedicine as defined bv the iaws gulatina the 

### D ti e of medi in in thizeState SurgeryraqDe&try OEteEpathy Chiropr&tic Ch&.stian Scieice

, or any &her treatment'or system of treatmentauthorizedfor by law, nor shall the provisionsof 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 authorizedand provided for by law for the prevention of human ills." (Emphasissupplied). Thus, the positive feature provides that naturopathy is the philosophyand system of the healing art embracing the prevention.diagnosisand treatme nt

+r 11s by certainmeans; of humaq and by the negativepart is not to e construedas giving the naturopath the right to practice medicine.
I~t

appears that the paragraphsof the Naturopat?cCdefinition conflictwith each other. Article 741,

by defining the practice of medicine further conf&is*hhe problem for a naturopathlicensed&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 contendedthat this construction is too restrictive,

but the intent of the Legislature was to set naturopathyaside as an independent field of endeavor separate and distince from the practice of medicine, and that auy provisionsof the Act leading to a contrary conclusion must be rejected. Thus, in prohibitingthe naturopathfrom practicingmedicine, the intentionof the Legislaturewas to permit the naturopathto act only In the realms of his particularendeavorwithout the use of drugs, surgery,etc., usually imputed to a practitioner of medicine. This, in essence,was the contentionIn the Balsted, case;sunra. Thus the questionoccurs as to whether the Legislaturehas the authority to make such a distinction.

Before discussingthat point, however, it should be noted that the cases previouslycited deflnltelydetermine that the Medical PracticeAct of 1907 i as amended makes no distinction between schools of me icine or me ht ods of treatment/but merely requires that a praoticioner, pass an examination provinghis 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: prohibita legislativedefinitionof 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 practiceof naturopathyas a separatehealthe Halsted case, supra, a writ of habeas cor

### DUS 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 defendantfin1%iolation81 of the statute. The court discussed thepovisions of the Chiropractic Act in the light of the constitutional provisionand upon the question of being definite and certain. If the provisions were certain, it would be In violation of the constitutionalprovision. 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 legislationviolates the non-preference such
clause of Art. 

### 1.6, Section 31, of our State Constitutiondefinitelyappears." The Halsted,

case m, distinguishes the practice~ of ~chiropraotic

from Jhe practice of dentistry and optometryunder the non-preference clause of the'constitution (Art. XVI Section 

### 31) as being the treatmentof the whole human bo y rather than a segment. Art. 

### 741, V.P.C.

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

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

n Assuming, then that~underthe Act beioie'us,,

the Legislature

has set up, recognized,and defined chiropractic as a system,means,~

and method for the treatment of diseases and disordersof the human body, and that practitionersthereof 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 disordersbecause the chiropractoris not required to have the same educationalqualifications nor is he required, as a conditionprecedent to his right to treat patients,to pass a satisfactory examination upon the same subjects that are required of all others similarly situated."
The principlesannounced in that case, when applied to the questionpresented,conclusively demonstrate that the qualification and educational

requirementsimposed by the Naturopathic Act are not identicalnor 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 PracticeAct. 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 usions herein expressed,for that law

i 

### 1949,Article 

### 459Oc, V.CA, does not merely provides that before a person is permittedto take an examinationfor a license to practice the healing art, he must present to the State Board of Examiners in Basic Sciences a certificate of proficiencyin certain enumerated studies. Article 45905 V.C.S. (Sections1 

### ana 3). These provisions

have beenconstrued as additionalrequirementsto those imposedby the Acts requiring the examinationby 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 standardsfor the practice of medicine. Section ,lof that Act reads as follows:

"go nerson shall be uermitted to take an examinationfor 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 proficiencyin anatomy, physiology,chemistry,bacteriology, pathology,and hygiene and public health, hereinafterreferred 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 importanceto the public of the provisionsof this Act and the necessitv for further safeauardinp the g nting cn of 1 ce ses 0 trht heal ~+&g containedin this Act,

. . .'I (Emphasis suPPl+d) Neither can it be contendedthat the Healing 

### Arts Identification

Act, chapter 154, Acts 52nd Legislature,

### 1951, Article 45900; V&S., in auy manner affects the problem presentedhere. 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 "healingarts.18

is only for the purpose of that Act.
The three very able briefs submittedfor.consideration,advance the ~position

that the galsted case is not determinative of the questionpresented. E'or. the reasons stated above, that position can not be sus-

_ .taine& ~'T'

It is a fundamentalconcept of our jurispruden& that the.

actions of the Legislature are, entitled to every--consideration reasonably

upholding their'

con-, stitutionality. Indulgingevery presumption possible. still leaves us with the inescapableconclusionthat the Legislaturehas preferredone school of medicine

.. over another by the lessening of the qualifications and standardsof educationrequired of a naturopath. Thus, no~matterhow worthy this classification might be and no matter what beneficial results would be attained if the Act were upheld, the Constitutionis controlling and this legislationdoes not conform.

The Naturopathic

Act violates the provisions of Art. XVI, Sec. 

### 31 of the Constitutionof Texas since it gives a preference to one segment of the healing arts. To rule otherwisewould require a holding that the Act is uncertain and indefinitein defining the practice of naturopathyand thus unconstitutional.

Tour first question is'answeredaffirmatively thereby rendering an answer to your second questionuunecessary.

The NaturopathicAct, Article 45!& V.C.S. violates the provisionsof Art. XVI P 

### 31 of the Constitutionof Texas in tha4 it gives a preferenceto one segment of the healing arts. To rule otherwise would require a holding that the Act is$# Hon. Austin F. Anderson,page 10

uncertainand indefinite and thus unconsti- i tutional. Ex Par e H (Tex.Crim.



### 1944).t alstec& 

### 182 S.w.2a479

APPFlovED: PhillipRobinson AppellateDivision
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