,
December 12, 1988
Honorable Brad Wright Opinion NO. JM-992
Chairman
Public Health Committee Re: Constitutionality of
Texas House of Representatives an amendment to article
P. 0. Box 2910 4551f, V.T.C.S., which
Austin, Texas 78769 requires dental labora-
tories doing business in
Texas to register with
the Board of Dental
Examiners (RQ-1571)
Dear Representative Wright: _
You ask about the provision in article 4551f, V.T.C.S.,
which requires dental laboratories doing business in Texas
to register with the Board of Dental Examiners. We find
nothing in the United States Constitution or any of the
legislative acts of the federal congress which would place
such a provision beyond the powers of the legislature.
The 70th Legislature amended the relevant part of
article 4551f, section 6, V.T.C.S., to read:
It shall be the duty of the owner or manager
of each dental laboratory to annually apply
to and register each dental laboratory doins
business in this State with which that person
has any connection or interest with the Texas
State Board of Dental Examiners . . . .
V.T.C.S. art 4551f, 5 6(a), as amended by Acts 1987, 70th
Leg., ch. 1095, 5 2, at 3714. (Emphasis added.) Prior law
limited the registration requirement to dental laboratories
located in the state and did not reach out-of-state labora-
tories doina business in the state.
You ask whether the power of the federal congress to
"regulate commerce among the several states" prohibits such
state regulation. & U.S. Const. art. I, 5 8, cl. 3.
The Commerce clause of the Federal Constitution,
through the application of the Supremacy Clause, permits the
federal government to preempt by specific legislation state
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Honorable Brad Wright - Page 2 (JM-992)
regulations which are contrary to the goal of providing a
uniform, non-discriminatory national marketplace for goods
and services. See aenerallv Rotunda, Nowak, and Young,
Treatise on COnStitUtiOnal Law: Substance and Procedure
5 11.1, at 579. In the case at hand, we can find no federal
legislation or judicial decisions which expressly deny to
the states the power to adopt legislation regulating the
operation of dental laboratories.
If there is no preemption of state power, then the
courts examine the state law for evidence of discrimination
aimed solely at out-of-state businesses. As the authors of
a leading treatise on constitutional law note:
[T]he text of the commerce clause provides no
overt restraint of state impingement of
interstate commerce in the absence of Con-
gressional legislation. It has been left to
the [courts] to interpret, as inherent in
that affirmative grant of power, self-
executing limitations on the scope of per-
missible state regulation.
Rotunda, Nowak, and Young, sunra, at 578.
Thus, in the absence of preemptive legislation by the
national government, the courts must define the proper
contours of acceptable state regulation of interstate
commerce. First, they recognize that the states may apply
some regulation to interstate commerce in order to protect
the health and safety of their citizens. See. e.a., Willson
V. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (.1829).
In every case where the courts examine actions taken
by states ostensibly to protect their citizens, they are
concerned chiefly with whether the exercise of state power
affects both local and interstate interests equally, so as
to negate the possibility that the use of the police power
is in fact a disguised mechanism to give unfair advantage to
home-state commercial interests. S . a Navaio
Freiaht Lines. Inc., 359 U.S. 520 e:19&;1R::::d:; Nowak,
and Young, sunra, 5 11.6, at 590-593. See also Dowling,
Interstate Commerce and State Power, 27 Va. L.Rev. 1 (1940).
In the statutory provision at hand, it is important to
note that the registration provisions apply to dental
laboratories located both within and without the state.
Thus, as provided for in the statute, the requirement does
not discriminate against national interests.
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Honorable Brad Wright - Page 3 (JM-992)
Finally, in the absence of both a federal statute
preempting a state regulation and an overtly discriminatory
purpose in the state law, the courts will apply the
following factors to determine the constitutionality of
state regulation challenged under the commerce clause:
Where the statute regulates even-handedly
to effectuate a legitimate local public
interest, and its effects on interstate
commerce are only incidental, it will be
upheld unless the burden imposed on such
commerce is clearly excessive in relation to
the putative local benefits. If a legitimate
local purpose is found, then the question
becomes one of degree. And the extent of
the burden that will be tolerated will . . .
depend on the nature of the local interest
involved, and whether it could be promoted as
well with a lesser impact on interstate
activities. (Citation omitted.)
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). See
also Eule, Lavina the Dormant Commerce Clause to Rest, 91
Yale L.J. 425 (1982); Maltz, Bow Much Reaulation iS Too
Much -- An Examination of Commerce Clause Jurisnrudence, 50
Geo . Wash. L.Rev. 47 (1981).
Although a final, definitive answer to your question is
available only in the federal courts, we are confident that,
on its face, section 6 of article 4551f is a legitimate
exercise of state power.
SUMMARY
The state may regulate interstate com-
merce in the interest of protecting the
health and welfare of its citizens. In the
absence of federal legislation preempting
state regulation of a given area, the courts
will examine the exercise by the state of its
police powers for evidence of a discrimina-
tory purpose and a real relationship to a
legitimate state purpose.
JIM MATTOX
Attorney General of Texas
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Honorable Brad Wright - Page 4 (JM-992)
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by D. R. Bustion, II
Assistant Attorney General
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