Untitled Texas Attorney General Opinion

,June 1, 1973 ,.
,’
The Honorable J.“Manley Head Opinion No. H- 42 ”
,Executive Secretary of the Texas ‘,
Board of Chiropractic Examiners ,. ,. Re: Authority.of the Texas Board
.I002 City National Bank Building of Chiropractic ,Examiners to
,, ,,Austin, Texas 78701 regulate advertising by chiro-
practors and to enforce such
.Dear Mr. ,.~,,
Head: ,..,, ,~ ..~ regulations.
,., .:.‘>,,,.. ,,
Your letter requesting .our, opinion.advires’that on September ,,23, 1973,
~._,the,Tcxas ,Board of .Chiropractic Examiners paseed a.,rule reading:

‘Under the:provisione,.of paragraphs 5, 6,, and 6
,. .:: .~ ~.”of Sect,ion 14a [Article 4512b, 5 14a] the Board rules
,, that it ihall be oonaidered unprofeariqnal conduct for ~:
‘;,,, ‘. a licen,eee:
.; ,..
. . .

.~~ .“9. To advertise,,in newspapers .with advertisements
..~ :. ,,in,excess,of two colttmn.. inches except in institutional
,advertising under ,the auspice8 of a ,chiropracttc organ- : ,’
‘~ -izationrecogniaed by the Texas Board of Chiropractic
~,Examiners.”

The practice oft chiropractic .is,:govern.ed ,by Arttile.,4512b, ,$. T. C. S. , which
creates the Texas Board of Chiropractic Examiners and authorizes it ($4a) “to
make such~ru1e.r and regulations not inconsistent with th,is law ao may be nectss
ary for the performance of its duties,. the reg.ulation of the practice of chiro-
prac,tic. and the cnforcement.of thie Act. ‘I

Section 14a as amended in 1971 (Act6 19711 52nd Leg.‘, p. 1349, 6. 357) lists
,,twenty-one specific derelictiona for which the Board of Chiropractic Examiners
.may refuse ,to admit.a person’to its examinations or may.cancel, revoke or
suspend licenses or plaoe licen.sets upon probation.. Paragraph 5 thereof conce
among other things, grossly unprofes.sional or dishonest conduct of a character
~...likely to deceive or,.defraud the public; paragraph.6 concerns the urs~f. advert-
iaing of a character to mislead or deceive; and paragraph 8 concerns the advert
ising of profe.8sional superiority, or of: superior performances. But none cove:
the size of advertisements to be placed in newspapers as does Rule 9. Sub-
p, 170
 The Honorable J. Manley Head, page 2 (H-42)

section 19 of 5 14a does proscribe ads in excess of two inches by one’column in
the yellow Rages of telephone directories.
.’
It is our opinion, therefore, that Rule 9‘adopted’ in September, does not
conflict with’but rather is quite consistent with’the pr‘ovisions of Article 4512b.

As to the authority of the Board of Chiropractic Examiners to adopt a
rule such as Rule 9, there is a remarkable similarity between 5 4a of Art-
icle 4512b. quoted above, and Article 4556, ,Vernon’s Texas Civil Statutes,
governing’ the authority of the Texas State Board of Examiners in Optometry
which Board is given the power “to mike such rul’es’and regulations not incon-
sistent with this law as may be necessary for the.performance of its duties,
the regulation of the practice of optometry ind the enf&cement of this Act. ”
In Kee v.’ Barber, 303. S. W. 2d 376 (Tex. !1957)‘.the Supreme’ Court note’d the
similarity of the authorjoation in the optometry statute to that in Article
320a-1 authorizing the Supreme Court of Texas to “propose rul.es and regu-
lations,. . ‘. ‘for the . . , conduct of the State Bar . . ” and in Article
4509 authorizing the T.exas State Board of Medical Examiners to “make such
.’ rules and regulations not inconsistent with’this law as may be ‘necessary for
. . .’ the regulation of .the practice of medicine . . . ” The Court upheld ,the
action of the Texas State Board of Examiners in Qptometr)r in adopting
additional rules,

Article 4563, of the’Act governing optometry, like Article 4512b, 0 I4a,
governing the practice of chiropractic, listeda number of specific acts for
which a license may be refused. or cancelled or revoked. The Supreme Court
in Texas State Board of Examiners in Optometry v. Carp, 412 S. W. 2d 307
(Tex. 1967) upheld a specific rule on its findings that the provisions of the.
rule were in harmony withthe general objectives of the act and were con-
,sistent with one or more of its specific proscriptions.

In accordance with, that, decisionit is our opinion that Rule 9,adopted
by the Texas Board of Chiropractic Examiners is .within the scope of authorit;
granted to that Board and its violation would authorize the Board td cancel,
revoke or suspend the license of a 1icensed’Tcxas chiropractor.

You have not advised us how Rule 9 fits in with the ether provisions of
Article 4512b and. without such knowledge,, we do not know and donnot
answer as to, whether its enforcement comports ,with the r,equirement? of
* We only answer that, in our opinion,
due process and, equal protection.
the Texas Board of Chiropractic Examiners, when empowered to make

p. 171 ‘,
The Honorable J. Manley Head, page 3 (H-42)

rules and regulations necessary for the regulation of the practice of
chiropractic, did have the right to adopt Rule 9 as one such rule,

SUMMARY

Section 4a of Article 4512b empowering the
Texas Board of Chiropractit Examinerr to adopt
rules and regulations necessary for the regulation
of practic of chiropractic authorizes the adoption
by the Board of such rules including a rule limiting
the rise of newspaper ad,vertirements, provided
that such rules do not conflict.with and are consis-
tent with specific prohibitory language of Section
14a of Article 4512b.

Very truly yours,

xl Attorney General of Texas

DAVID M. KENDALL, Chairman
Opinion Committee

p. 172