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
