Honorable Dan W. Jackson
Criminal District Attorney
Houston, Texas
Dear Sir: Attention: Palmer Hutcheson,Jr.
Opinion No. 1992
Re: (A) Are the restrictions on
advertising and other acts
and practices contained in
subsection (a) through (t) of
Article 752b of the Penal
Code (Acts of 1937, 45th Leg.,
p. 1346. ch. 501,) (2) valid and
constitutional?
(B) Is the proviso at the end
of Article 75213, supra, restric-
tive or merely premissive?
P’e have for reply your letter in which you ask the
above stated questions.
The Article in question, 752b of the Penal Code as
amended, reads as foliows:
‘It shall be unlawful for any person, firm,
or corporation to engage in or be guilty of any
unprofessional conduct in the practice of dentis-
try, directly or indirectly. Any ‘unprofessional
conduct,’ as used herein, means and includes any
one or more of the following acts, to wit:
“(a) employing ‘Cappers’ or ‘Steerers’ to
solicit and/or obtain business;
“(b) obtaining any fee by fraud or misre-
presentation1
‘(c) employing directly or indirectly or
permitting any unlicensed person to perform
. .
Honorable Dan W. Jackson, Page 2 (1992)
dental services upon any person in any room or
office under his or her control;
“(d) circulate any statements as to the
skill or method of practicing dentistry of any
person through the means of bills, posters, cir-
culars, cards, stereopticon slides, motion pic-
tures, radios, newspapers, or other advertising
agencies or devices;
“(e) making use of any advertising state-
ments of a character tending to mislead or de-
ceive the public;
‘(f) advertising professional superiority
or the performance of professional services in
a superior manners;
“(g) advertising prices for professional
services in the practice of dentistry, or compara-
tive values thereof;
‘(h) advertising bargains. cut rates, or
special values in dental services or productions
with or without specifying the time they shall ap-
ply;
a vertising any free dental work or
free eZLn~tion i
‘(j) advertising to guarantee any dental
services;
‘(k) advertising to perform any dental
operation painlessly;
“(1) publishing or circulating reports of
cases or statements of patients in any newspa-
per, or to circ~ulate same in any other way what-
soever;
‘(m) advertising by any means, the using
of any secret anesthetic, drug, formula, medicine,
method, or system;
“(n) employing any person or persons to
obtain, contract for, sell or solicit patronage, or
Honorable Dan W. Jackson, Page,3 (1992)
making use of free publicity press agents;
“(0) advertising by means of large display signs,
or glaring light signs, electric or neon, or such signs
containing as a part thereof the representation of a
tooth, teeth, bridgework, plates of teeth, or any portion
of the human head, or using specimens of such in dis-
play, directing the attention of the public to any such
person or persons engaged in the practice of dentistry;
“(p) advertising dental plates, or restorations,
or the materials used in their construction, under any
fictitious. fancy, or unscientific names unapproved by
the dental profession, or manufacturers of such mater-
ials and which cannot be identified by the patient;
“(q) advertising to the public ‘any commercial
dental laboratory or dental clinic ;
‘(r) giving a public demonstration of skill or
methods or practicing dentistry for the purpose of
securing patronage;
“(s) forging, altering, or changing any diploma,
license, registration certificate, transcript, or any
other legal document pertaining to the practice of den-
tistry, being a party thereto, or beneficiary therein, or
makfng any false statement about or in securing such
document, or being guilty of misusing the same;
‘(t) using any photostat, copy, transcript, ,or any
other repres~entation in lie,u of a diploma, license, or
registration certificate as evidence of authority to
practice dentistry.
“Provided, that any duly licensed practitioner of den-
tistry may publicly announce by way of newspaper or professional
card that he is engaged in the practice of dentistry, giving his name,
degree, office location where he is actually engaged in the practice,
office hours, telephone numbers and residence address; and if he
limits his practice to a specialty, he may state same.”
In order to facilitate the analysis of this question, we
are going to divide it into the three following parts: first, the state’s
power in general to pass such regulatory acts; second, the constitu-
tionality of the enumerated prohibited practices; third, a construction
Honorable Dan W. Jackson, Page 4 (1992)
of the proviso found at the conclusion of the Article in question.
GENERAL POWER OF THE STATE TO PASS SUCH
REGULATORY ACTS
It is true, of course, that persons lawfully engaged in
the practice of dentistry, as well as those engaged in all other law-
ful professions, are entitled to the protection of the guaranties af-
forded by both State and Federal Constitutions. But it is equally
true that those so engaged in the profession of dentistry, as well
as of medicine and surgery. and related vocations, are subject to
legislative regulation.
The Legislature has the regulatory power, because the
profession of dentistry intimately concerns the lives, health, morals,
and comforts and, therefore, the general welfare of the members of .
‘the public’and because of that relationship, the State under its inher-
ent police power has the right and it is its duty to impose such rea-
sonable and just restrictions and regulations upon the practice of
that vocation as are appropriate and necessary to protect and con-
serve the life. health, morals, and general welfare of the inhabitants
of the State. See 11 Am. Jur. 1044, 1248; 21 R.C.L, 363, p. 10; Sem-
ler v. Oregon State Board, 34 Pac. (2d) 311, 294 U.S. 608. 55 S.Ct.
570; Laughney v. Maybury, 259 Pac. 17; Thompson v. Van Lear, 92
S.W. 773; State Board v. McCrary. 130 S.W. 544. This power of the
state to regulate continues after the practitioner has obtained his
license from the state. It is true that a license to practice is a
property right, however, it is not such a vested right in the consti-
tutional sense that it may not be revoked for good cause and such re-
vocation is not a taking of property without the due process of Law.
See.11 Am. Jur. 1033, 1 275; 37 C.J. 168; 17 R.C.L. 474; Newson v.
Galveston, 76 Tex. 559, 13 S.W. 368; Craven v. Bierring, 269 N.W.
801; State v. Clark, 79 Tex. Cr. T. 559, 187 S.W. 760.
For a summary of this State regulatory power, may we
quote from the case of Semler v. Oregon State Board of Dental Ex-
aminers, supra. In delivering the opinion of the court, Mr. Chief
Justice Hughes states the following:
“That the State may regulate the practice of
dentistry, prescribing the qualifications that are rea-
sonably necessary, and to that end may require licenses
and establish supervision by an administrative board,
is not open to dispute. Douglas V. Noble, 261 U.S. 165,
67 L. ed. 590, 43 S. Ct. 303; Graves v. Minnesota, 272
Honorable Dan W. Jackson, Page 5 (1992)
U. S. 425, 427, 71 L. ed. 331. 334, 47’s. Ct. 122. The
State may thus afford protection against ignorance, in-
capacity and imposition. Dent v. West Virginia, 129
U.S. 114, 122, 32 L. ed. 623, 626, 9 S. Ct. 231; Graves
v. Minnesota, supra. We have held that the State may
deny to corporations the right to practice, insisting
upon the personal obligations of individuals (State Den-
tal Examiners v. Miller.; 90 Colo. 193, 8 P. (2d) 699,
287 U.S. 563, 77 L. ed. 496, 53 S. Ct. 6). and that it
may prohibit advertising that tends to mislead the pub-
lic in this respect. Dr. Bloom Dentist v. Cruise, 259 ‘~
N.-Y. 358, 363, 182 N. E. 16, 288 U. S.~ 588, 77 L. ed.
967, 53 S.~ Ct. 320.”
THE CONSTITUTIONALITY OF THE
ENUMERATED PROHIBITED PRACTICES
From a study of the State regulatory power discussed
above, we may safely conclude that any practices involving fraud
may be prohibited by the State. The following five practices taken
from Article 752b. Penal Code, as amended, are all based on fraud:
“(b) obtaining any fee by fraud or misrepre-
s entation;
‘(c) employing directly or indirectly or per-
mitting any unlicensed person to perform dental ser-
vices upon any person in any room or office under his
or her control:
“(e) making use of any advertising statements
of a character tending to mislead or deceive the pub-
lic
- ;
“(m) advertising by any means, the using of
any secret anesthetic, drug, formula, medicine, me-
thod, or system;
“(p) advertising dental plates, or restorations,
or the materials used in their construction, under any
fictitious, fancy or unscientific names’unapproved by
the dental profession, or manufacturers of such mater-
ials and which cannot be identified by the patient;
“(5) forging, altering, or changing any diploma,
license, registration certificate. transcript, or any
other legal document pertaining to the practice of
Honorable Dan W. Jackson, Page 6 (1992)
dentistry, being a party thereto, or beneficiary therein,
or makfng any false statement about or in securing such
document, or being guilty of misusing the same;
“(t) using any photostat, copy, transcript, or any
other representation in lieu of a diploma. hcense. or
registratron cer tificate as evidence of authority to prac-
tice dentistry.” (Underscoring ours)
The following group of prohibited practices, thirteen
in number, are not directly based on fraud. However, our Texas
courts and the Supr.eme Court of the United States have indicated
that such regulations are reasonable. See Sherman v. State Board
of Dental Examiners,, 116 S.W. (2d) 843; Semler v. Oregon State
Board of Dental Examiners, 79 L. ed. 1086, 294 U.S. 608.
” a) employing ‘Cappers’ or ‘Steerers’ to soli-
cit and I,or obtain business;
‘(d) circulate any statements as to the skill or
method of practicing dentistry of any person through
the means of bills, posters, circ~ulars. cards, stere-
opticon slides, motion pictures, radios, newspapers,
or other advertising agencies or devices;
“(f) advertising professional superiority or the
perfo~rmance of professional services in a superior
manner;
“(g) advertising prices for professional services
in the practice of dentistry, or comparative values
_ thereof;
“(h) advertising bargains, cut rates, or special
values in dental services or productions with or with-
out specifying the time they shall apply;
‘(i) advertising any free dental work or free
examination;
“(j) advertising to guarantee any dental services;
I* advertising to perform any dental operation
painlessly;
“(1) publishing or circulating reports of cases or
Honorable Dan W. Jackson, Page 7 (1992)
statements of patients in any newspaper, or to cir-
culate same in any other way whatsoever;
“(n) employing any person or persons to ob-
tain contract for, sell or solicit patronage, or mak-
ing use of free publicity press agents;
*(o) advertising by means of large display
signs, or glaring light signs, electric or neon, or
such signs containfng as a part thereof ~the repre-
sentation of a tooth, teeth, bridgework, plates of
teeth, or any portion of the human head, or using
specimens of such in display, directing the atten-
tion of the public to any such person or persons en-
gaged in the practice of dentistry;
“L(q) advertising to the public any commercial
dental laboratory or dental clinic;
“(r) giving a public demonstration of skill or
methods or practicing dentistry for the purpose of
securing patronage;”
Mr. Chief Justice Hughes, in delivering the opinion in
the Semler case, supra, made the following statement, in holding
constitutional an Oregon statute very similar to the one now fn ques-
tion. We quote at length from the opinion:
‘~The state court defined the policy of the sta-
tute. The cohrt said that while, in itself, there was
nothing harmful in merely advertismg prxes for den-
. tal work or in displaying glaring signs illustrating
teeth and bridgework, it could not be doubted that prac-
titioners w60 were not willing to abide by the ethics of
their profession often resorted to such advertising me-
thods ‘to lure the credulous and ignorant members of
th public to their offices for the purpose of fleecing
theem.’ The legislature was aiming at ‘bait advertising.’
‘Indricing patro-&ge,’ said the court, ‘by representations
of “painless dentistr-, ” “professional superiority,”
“free examinations, and “guaranteed” dental work’
was as a general rule, ‘the practice of the charlatan
and the quack to entice the public.’ (Underscorfng ours)
“We do not doubt the anthority of the State to esti-
mate the baleful effects of such methods and to put a
c
Honorable Dan W. Jackson, Page 8 (1992)
stop to them. The legislature was not dealing with
traders in commodities, but with the vital interest
of public health, and with a profession treating bodi-
ly ills and demanding different standards of conduct
from those which are traditional in the competition
of the market place. The community is concerned
with the maintenance of professional standards which
will insure not only competency in individual practi-
tioners, but protection against those who would prey
upon a public peculiarly susceptible to imposition
through alluring promises of physical relief. And
the community is concerned in providing safeguards
not only against deception, but against practices
which would tend to demoralize the profession by
forcing its members into an unseemly rivalry which
would enlarge the opportunities of the least scrupu-
lous. What is generally called the ‘ethics’ of the pro-
fession is but the consensus of expert opinion as to
the necessity of such standards.
“It is no answer to say, as regards appellant’s
claim of right to advertise his ‘professional super-
iority’ or his ‘performance of professional services
in a snperior manner,’ that he is telling the truth.
In framing its policy the legislature was not bound
‘to provide for determinations of the relative profi-
ciency of particular practitioners. The legislature
was entitled to consider the general effects of the
practices which it described, and if these effects,
were inl’urious in facilitating unwarranted and mis-
leading claims, to counteract them by a gene~ral rule
-even though in particular instances there might be no
actual deception or misstatement. (Underscoring ours)
Booth v. Illinois, 184 U.S. 425 429. 46 L. ed. 623, 626,
22 S. Ct. 425; Purity Extract ‘8, Tonic Co. v. Lynch,
226 U.S. 192, 201, 57 L. ed. 184, 187. 33 S. Ct. 44; Hebe
Co. v. Shaw, 248 U.S. 297, 303, 63 L. ed. 255, 258, 39
S. Ct. 125; Pierce Oil Corp. v. Hope, 248 U.S. 498, 500.
63 L. ed. 381, 382, 39 S. Ct. 172; Euclud V. Ambler Real-
ty Co. 272 U. S. 365, 388, 389, 71 L. ed. 303, 310, 311,
47 S. Ct. 114. 54 A.L.R. 1016..”
CONSTRUCTION OF THE PROVISO FOUND
AT THE CONCLUSION OF ARTICLE 752b, PENAL CODE
The proviso in question reads as follows:
Honorable Dan W. Jackson, Page 9 (1992)
Provided that any duly licensed practitioner of
,”
dentistry may publicly announce by way of newspaper
or professional card that he is engaged in the practice
of dentistry, giving his name, degree, office location
where he is actually engaged in practic~e, office hours,
telephone numbers and residence address; and if he li-
mits his practice to a specialty, he may state same.”
It has long been the custom of the medical and dental
profession to permit their members to carry so-called “cards”
in professional directories and to be used in announcing new or
changed addresses. It would seem clear that the Legislature in-
serted the proviso to make certain that this long used custom was
not prohibited.
In your letter you ask the following questions:
“In other words under Article 75213. supra. taken
as a whole, may dentist, without enfringing the criminal
laws, advertise in any manner and with as much space
as he desires, so long as he does not violate one of the
specific prohibitions in subsections ‘a’ through ‘t’, or is
his advertising limited by the proviso, to a mer”e state-
ment of his name, degree, office location, etc?
In answering this question we would first point oat as
s.tated above that apparent intention of the Legislature was to pre-
serve a long standing customary right to the dentist and not to re-
strict him. Certainly since this is a criminal statute and must be
strictly construed, it would seem clear that the dentist could adver-
tise in any manner and with as much space as he desires so long as
his- advertising did not fall under the prohibited practices of the ar-
ticle in ques.tion.
We therefore respectfully advise that Article 75213, Penal
Code, as amended, is valid and constitutional and the proviso at the
end of said article is permissive rather than restrictive.
APPROVED JUN 7.1940 Yours ve~ry truly
/s/ Grover Sellers ATTORNEYGENEULOF TEXAS
First Assistant
Attorney General
BY
Frederik B. Isely
Assistant
FBI:EAW
Approved:
Opinion Committee
By /s/ BWB
Chairman