The Attorney General of Texas
August 5, 1982
MARK WHITE
Attorney General
Mr. William S. Nail Opinion No. ?lW-501
Supreme Court Building Executive Director
P. 0. Box 12546
Texas State Board of Dental Examiners Re: Constitutionality of
Austin, TX. 76711. 2548
51214752501
411 West 13th Street, Suite 503 Dental Practice Act provision
Telex 9101874.1367 Austin, Texas 78701 relating to solicitation
Telecopier 5121475.0266
Dear Mr. Nail:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 You have requested our opinion regarding the constitutionality of
2141742-6944 that provision of the Dental Practice Act, article 45488, V.T.C.S.,
which relates to solicitation. Specifically, you ask whether the
following provision of the statute is constitutional:
4624 Alberta Ave., Suite 160
El Paso. TX. 79905-2793
9151533-3464 It shall be unlawful for any person, firm, or
corporation to engage in or be guilty of any
unprofessional conduct pertaining to dentistry
1220 Dallas Ave.. Suite 202
directly or indirectly. Any unprofessional
Houston. TX. 77002-6966
7131650-0666
conduct, as used herein, means and includes any
one or more of the following acts:
606 Broadway, Suite 312 ....
Lubbock, TX. 79401-3479
6061747-5236
(2) soliciting dental business by means of
verbal communication, in person or otherwise,
4309 N. Tenth. Suite B directed to an individual or group of less than
McAHen, TX. 78501-1665 five individuals, which is primarily for the
5121662-4547 purpose of attracting the patronage of such
individual or group to a particular practice of
200 Main Plaza. Suite 400 dentistry.
San Antonio, TX. 76205.2797
5121225.4191 "Verbal" in common usage means spoken or oral cormnunication. Black's
Law Dictionary 1397 (5th ed. 1979); see also Pyramid Drilling Company
An Equal OpportunityI
v. Howell, 173 S.W.2d 250, 253 (Tex. Civ. App. - Texarkana 1943, writ
Affirmative Action Employer ref'd w.o.m).
In Virginia Pharmacy Board v. Virginia Consumers Council, 425
U.S. 748 (1976), the United States Supreme Court issued the first of a
series of decisions striking down state prohibitions on professional
advertising. In subsequent decisions, the Court upheld statutory
restrictions on the time, place and manner of advertising by
professionals, provided that the restrictions were: made without
reference to the content of the material, served a significant
p. 1804
Mr. William S. Nail - Page 2 (MW-501)
governmental interest, and left open ample alternative channels for
the communication of the information. See Bates v. State Bar of
Arizona, 433 U.S. 350 (1977); Ohralik v. Ohio State Bar Association,
436 U.S. 447 (1978); Friedman v. Rogers, 440 U.S. 1 (1979). See also
In the Matter of R.M.J.. 50 U.S.L.W. 4185 (1982).
In Ohralik, supra, the Court specifically upheld a state
prohibition on the solicitation of business by attorneys through
direct, in-person communication. The Court noted that:
in-person solicitation may exert pressure and
often demands an immediate response, without
providing an opportunity for comparison or
reflection.
Its:
aim and effect... may be to provide a one-sided
presentation and to encourage speedy and perhaps
uninformed decisionmaking.
436 U.S. at 457.
The Court observed that the disciplinary rules at issue did not
prevent the appellant from "communicating information to these young
women about their legal rights and the prospects of obtaining a
monetary recovery, or from recommending that they obtain counsel."
They merely prevented him from using the information as bait "with
which to obtain an agreement to represent them for a fee." Id. at
458. According to the Court, the rules acted merely to promote a
"compelling" state interest, that of preventing "those aspects of
solicitation that involve fraud, undue influence, intimidation,
overreaching and other forms of 'vexatious conduct."' -Id. at 462.
To the extent that subsection (2) of article 4548g merely enacts
the criteria set forth in Ohralik, we believe it is constitutional.
Since we are obliged to construe every statute in such a way that it
will meet constitutional standards, it is our opinion that subsection
(2) is, on its face, constitutional insofar as it prevents "those
aspects of solicitation that involve fraud, undue influence,
intimidation, overreaching and other forms of 'vexatious conduct."'
You also ask whether the prohibitions of subsection (2) are in
conflict with section l(b) of article 4548f, V.T.C.S., which provides:
The Board may not adopt rules restricting
competitive bidding or advertising by a person
regulated by the Board except to prohibit false,
misleading, or deceptive practices by the person.
p. 1805
. -
Mr. William S. Nail - Page 3 (MW-501)
No conflict exists between section l(b) of article 4548f and
subsection (2) of article 4548g, because section l(b) prevents the
board, not the legislature, from adopting rules restricting
advertising.
Finally, you ask whether the following acts are contrary to the
prohibition of article 4548g(2):
(1) a mass mail-out soliciting dental business
to 100 persons;
(2) stuffing union envelopes with dental cards
or dental information;
(3) mail-out to all newcomers to a city; and
(4) passing out dental leaflets to shoppers in
a mall.
Subsection (2) prohibits verbal solicitation on an individual or small
group basis. If a dentist were to distribute dental leaflets to
shoppers in a mall, he would probably be in contact with fewer than
five persons in any particular instance. If, however, he merely
distributed the leaflets, without comment, he would not be in
violation of subsection (2) because the element of "verbal
communication" would be missing., In addition, since the leaflet might
merely furnish dental information, it is clear that not every
distribution of dental leaflets would necessarily constitute
"soliciting dental business."
On the basis of the limited facts you have furnished, we cannot
determine whether the distribution of dental leaflets to shoppers in a
mall would violate subsection (2). None of the other three fact
situations would appear to contravene that prohibition.
SUMMARY
The provision of the Dental Practice Act,
article 4548g, V.T.C.S., which relates to
solicitation is constitutional on its face.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1806
- .
Mr. William S. Nail - Page 4 (Mw-501)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
George Warner
p. 1807