Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

December 17,200l

The Honorable Patricia Gray Opinion No. JC-0441
Chair, Public Health Committee
Texas House of Representatives Re: Whether a podiatrist’s statutory authority to
P.O. Box 2910 treat a “disease, disorder, physical injury, deformity
Austin, Texas 787682910 or ailment of the human foot,” TEX. OCC. CODE
ANN. 8 202.001(a)(4) (Vernon ZOOl), includes
authority to treat “the tibia and fibula in their
articulation with the talus, . . . inclusive of all soft
tissues . . . that insert into the tibia and fibula in
their articulation with the talus,” and related
question (RQ-0404-JC)

Dear Representative Gray:

Section 202.001 of the Occupations Code defines the term “podiatry” as “the treatment of
or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by
any system or method,” TEX. Oct. CODE ANN. 5 202.001(a)(4) (V emon 2001), although the statute
does not define the term “foot.” The Texas State Board of Podiatric Medical Examiners (“Board”)
recently has adopted a rule defining the term “foot” as “the tibia and fibula in their articulation with
the talus . . . , inclusive of all soft tissues . . . that insert into the tibia and fibula in their articulation
with the talus.” See 26 Tex. Reg. 2385,239l (2001) (to be codified as an amendment to 22 TEX.
ADMIN. CODE 5 375.1) (Tex. State Board of Podiatric Medical Examiners, Definitions). You
question whether this regulatory definition enlarges, in a manner that is inconsistent with section
202.001 of the Occupations Code, the practice of podiatry to include the treatment of areas of the
body other than the foot.* See STEDMAN’S MEDICAL DICTIONARY650,905, 1813 (26th ed. 1995)
(defining “fibula,” “ankle joint,” and “tibia”). We conclude that it does at least to the extent it
permits a podiatrist to treat the tibia and fibula. You further ask whether “it is within the Board’s
rulemaking authority to define a term so that it effectively alters the practice of podiatry without first
seeking legislative direction.” Request Letter, supra note 1, at 2. The Board may not by regulation
enlarge the practice of podiatry beyond what the statute allows.

‘Letter from Honorable Patricia Gray, Chair, Committee on Public Health, Texas House of Representatives,
to Honorable John Comyn, Texas Attorney General (July 16, 2001) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable Patricia Gray - Page 2 (JC-0441)

A podiatrist is licensed to practice podiatry. See TEX. Oct. CODE ANN. tj 202.001 (a)(3)(A)
(Vernon 2001). Section 202.001 of the Occupations Code defines the term “podiatry” as “the
treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the
human foot by any system or method.” Id. 5 202.001(a)(4). The statute does not define the term
“foot.”

Citing a need to clarify the term, the Board adopted a regulatory definition in March 2001:

The foot is the tibia and fibula in their articulation with the talus, and
all bones to the toes, inclusive of all soft tissues (muscles, nerves,
vascular structures, tendons, ligaments and any other anatomical
structures) that insert into the tibia and tibula in their articulation with
the talus and all bones to the toes.

26 Tex. Reg. 2385,239O (2001) (to be codified as an amendment to 22 TEX. ADMIN. CODE lj 375.1)
(Tex. State Board of Podiatric Medical Examiners, Definitions); see also id. at 2385 (“The board has
determined that there exists uncertainty among various groups resulting from the lack of a [statutory]
definition of the term ‘foot.“‘). Incorporating the regulatory definition of “foot” into the statutory
definition of the practice of podiatry, the practice of podiatry is the treatment of “the tibia and fibula
in their articulation with the talus, and all bones to the toes, inclusive of. . . soft tissues . . . .” You
are concerned that the Board, by adopting this definition, has extended the practice of podiatry
beyond the treatment “ofthe human foot,” TEX. OCC. CODEANN. 5 202.001 (a)(4) (Vernon 2001), and
that the Board has acted beyond its authority. See Request Letter, supra note 1, at 1.

To answer your second, general question first, the Board may not adopt a rule that enlarges
the practice of podiatry beyond what the statute permits. As a state agency, the Board has only those
powers that the legislature has expressly delegated to it or that may be implied from its express
powers. See State v. Jackson, 376 S.W.2d 341, 344 (Tex.1964); Tex. Parks & Wildlife Dep’t v.
Callaway, 971 S.W.2d 145, 148 (Tex. App.-Austin 1998, no pet.); Tex. Dep ‘t of Human Sews. v.
Christian Care Ctrs., Inc., 826 S.W.2d 715,719 (Tex. App.-Austin 1992, writ denied). The Board
may adopt “reasonable or necessary rules . . . consistent with the law regulating the practice of
podiatry” to regulate the practice of podiatry, TEX. OCC. CODE ANN. 6 202.15 1 (Vernon 2001), and
its construction of the podiatry statute “is entitled to great weight, so long as” the Board reasonably
interprets the statute’s plain language. S. W. Bell Tel. Co. v. Pub. Util. Corm ‘n, 3 1 S.W.3d 63 1,639
(Tex. App.-Austin 2000, pet. filed); accord Tex. Att’y Gen. Op. No. DM-443 (1997) at 1 (deferring
to state agency’s reasonable interpretation of statute it is charged to enforce). “The determining
factor” in deciding whether an agency rule is authorized by and consistent with the agency’s
authority “is that the rule’s provisions must be in harmony with the general objectives of the Act
involved.” Gerst v. Oak Cliff Sav. & Loan Ass ‘n, 432 S. W.2d 702,706 (Tex. 1968); Tex. Att’ y Gen.
Op. No. JC-0072 (1999) at 5. To the extent an agency rule does not harmonize with the agency’s
statutory power, it is beyond the agency’s authority to adopt. See Tex. Att’y Gen. Op. No. JC-0072
(1999) at 5.
The Honorable Patricia Gray - Page 3 (JC-0441)

In our opinion, a Board rule that effectively authorizes a podiatrist to treat a part of the body
other than the foot extends the practice beyond the statutory limits. The practice of podiatry is
limited by statute to treatment of the foot. Section 202.001 expressly defines podiatry as the
treatment of a “disease, disorder, physical injury, deformity or ailment of the humanfoot.” TEX.
Oct. CODEANN. $202.001(a)(4) (Vernon 2001) (emphasis added). We construe words and phrases
that have acquired a technical meaning according to that meaning. See TEX. GOV’T CODE ANN.
5 311.011(b) (V emon 1998). The foot is defined as “the distal portion of the primate leg, upon
which an individual stands and walks[, and consists,] in a man, of the tarsus [which includes the
talus], metatarsus, and phalanges and the tissues encompassing them.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY648 (27th ed. 1988); accord TABER’S CYCLOPEDICMEDICALDICTIONARY746
(19th ed. 2001); see also STEDMAN’SMEDICAL DICTIONARY224,673, 1100,1763 (26th ed. 1995)
(defining “tarsus,” “foot, ” “metatarsus,” and “tarsal bones”); BLACK’S MEDICAL DICTIONARY 229
(37th ed. 1992) (defining “foot” as “that portion of the lower limb situated below the ankle joint”);
VI OXFORDENGLISHDICTIONARY12 sense I. 1.a (2d ed. 1989) (defining “foot” as “[tlhe lowest part
of the leg beyond the ankle-joint”); WEBSTER’SNINTH NEW COLLEGIATEDICTIONARY480 sense 1
(1984) (defining “foot” as “the terminal part of the vertebrate leg upon which an individual stands”).
Thus, the Board has jurisdiction to determine whether a particular system or method of treatment
constitutes the practice of podiatry, but only to the extent the system or method purports to treat the
foot. See Tex. Att’y Gen. Op. No. DM-423 (1996) at 3 (deferring to the Board to determine whether
hyperbaric oxygen therapy is within practice of podiatry); c$ Tex. Att’y Gen. Op. No. JC-0117
(1999) at 4 (stating that to extent selecting and administering anesthesia is within scope of practice
of professional nursing, Board of Nurse Examiners may regulate professional nurses’ performance
of those tasks).

We conclude, in answer to your first question, that the Board’s regulation unreasonably
extends the practice of podiatry to include treatment of the tibia and fibula, parts of the body that are
not located in the foot. The rule defines the term “foot” to include “the tibia and fibula in their
articulation with the talus . . . inclusive of all soft tissues . . . that insert into the tibia and fibula
in their articulation with the talus . . . .” 26 Tex. Reg. 2385, 2390 (2001) (to be codified as an
amendment to 22 TEX. ADMIN. CODE 9 375.1) (Tex. State Board of Podiatric Medical Examiners,
Definitions). The tibia and fibula are leg bones; they are not part of the foot. See STEDMAN’S
MEDICAL DICTIONARY 650, 18 13 (26th ed. 1995) (defining “fibula” and “tibia”). While the
regulatory definition follows the phrase “tibia and fibula” with the modifying phrase “in their
articulation with the talus,” we read the rule to include the tibia and fibula, at least in part, in the foot
and thereby to permit a podiatrist to treat the tibia and fibula. This extends the practice of podiatry
beyond what the statute permits. See also Tenn. Med. Ass ‘n v. Bd. of Registration in Podiatry, 907
S. W.2d 820, 825 (Tenn. App. 1995) (determining, as matter of law, that ankle sprain is not ailment
of foot); Corm. State Med. Soc’y v. Corm. Bd. of Exam ‘rs in Podiatry, 546 A.2d 830, 838 (Corm.
1988) (“Had the legislature intended to include the ankle in the definition of ‘foot,’ it could easily
have done so.“). But see Jaramillo v. Morris, 750 P.2d 1301,1305-07 (Wash. App.), rev’w denied,
llOWash.2d1040(1988)( concluding that State Podiatry Board could define foot to include ankle).
Given that the rule is inconsistent with state law regulating the practice of podiatry, the Board has
acted beyond its authority.
The Honorable Patricia Gray - Page 4 (JC-044 1)

SUMMARY

The Texas State Board of Podiatric Medical Examiners may
not adopt a rule that enlarges the practice of podiatry beyond what
chapter 202 of the Occupations Code permits. See TEX. OCC. CODE
ANN. ch. 202 (Vernon 2001). By defining the term “foot” as “the
tibia and fibula in their articulation with the talus, . . . inclusive of all
soft tissues . . . that insert into the tibia and fibula in their articulation
with the talus,” the Board has extended the practice of podiatry
beyond what section 202.001 of the Occupations Code authorizes.

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee