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                           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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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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