                        The Attorney              General of Texans
                                         January 23, 1981

MARK WHITE
Attorney Gecierel
                    John W. Davis, O.D., Chairman             Opinion No.    MN-292
                    Texas Optometry Board
                    Commerce Park, Suite Ii-101               Re: Optometry Act requirement
                    5555 North Lamar                          that the business of anoptician be
                    Austin, Texas 78751                       separate from the practice of an
                                                              optometrist

                    Dear Mr. Davis

                          You ask four questions regarding the interpretation ~of article 4552-5.15
                    of the Texas Optometry Act. V.T.C.S. article 4552-5.15. These provisions
                    require the separation of an optometrist’s premises from those of a
                    dispensing optician, where both occupy space ln the same building. You have
                    described four instances where an optometrist’s premises are adjacent to the
                    premises of a d&en&g      optician, and you ask whether the physical layouts
                    of the offices comply with subsections (a) and (b) of article 4552-5.15 of the
                    Texas Optometry Act. In answering these questions, we will apply the law
                    to the facts as given w you, since we do not resolve fact questions in the
                    opinion process.

                         Article 4552-515 provides in. pertinent part:

                                   (a) The purpose of this section is to insure that
                               the practice of optometry shall be carried out in such
                               a manner that it ls completely and totally separated
                               from the business of any dispensing optician, with no
                               control of one by the other and no solicitation for one
                               by the other, except as hereinafter set forth.

                                   (b) If en optometrist     occupies spece for the
                               practice of optometry in a buildhig or premises in
                               which any person, film, or corporation engages ln the
                               business of a dispensing optician, the space occupied
                               by the optometrist shall be separated from the space
                               occupied ty the dispensing optician by solid partitions
                               or walls from floor to celling. The space occupied by
                               the optometrist shall have a patient’s entrance
                               opening on a public street, hall, lobby, corridor, or
                               other public thoroughfare.      An entrance is not a
                               patient’s entrance within the meaning of this sub-
                               section unless actually used as an entrance by the
                               optometrist’s patients.




                                                   p.   932
,John W. Davis - Page Two     ~@v-2%‘)




       In your first question, you provide the following facts: An optometrist practices
next &or to a dispensing optician.         The optometrist leases his space from the
dispensing optician. The patient’s entrance to the optometrist’s office opens on a hall,
leading to a lobby which has a &or opening on a public street.         A door from the
dispensing optician’s space opens to the lobby. A solid wall separates the dispensing
optician’s space from the hallway leading to the optometrists office. Thirty-six inch
high glass panels are set into the wall thity inches from the floor. The rest of the
wall is opaque. Doors from both the optometrist’s space and the dispensing optician’s
space lead into the contact lens room. In considering whether the physical layout of
these offices complies with subsections (a) and (b) of article 4552-5.15 you wish us to
pay particular attention to the following details:

           (a)   The common lobby area;

           (b)   The fact that the partition separating the dispensing
                 optician’s space from the hallway which leads to the
                 optometrist’s office is partially constructed of solid glass;

           (c)   The presence of the door in the wall leading from the
                 optician’s office into the contact lens room which is part
                 of the optometrist’s space.

      In determining the meaning of “solid” wall, we may consult a dictionary. See
Board of Insurance Commissioner’s v. Duncan, 174 S.W. 2d 326 (Tex. Civ. AwT
 Amarillo 1943, writ ref’d), Websters Third International Dictionary defines solid as
“not interrupted by any breaks or opening.” In cur opinion, a solid wall within
subsection (b) of. article 4552-5.15 may include transparent or trruwlucent panes of
glass    When the legislature wished premises used by optometrists to have opaque
walls, it said so. See V.T.C.S. art. 4552-5.14(d) (premises leased by optometrists from
mercantile establi%ent     must be separated by solid, opaque walls). However, a solid
wall may not be broken by windows that open or by doors.

       Therefore, we do not believe that any violation of the act occurs because the
partition separating the dispensing optician’s space from the hallway is partly made of
glass. We do, however, believe there is a violation of the Act in that a door opens
from the optician’s office into the contact lens room which is part of the optometrist’s
space.    Because of that door, the premises of the two business entities are not
completely separated by a solid partition.

      The two businesses open on to a common lobby area. The Act requires the
patient’s entrance to the optometrist’s office open on a public lobby or other public
thoroughfare. Whether or not it is a public lobby is a question of fact which cannot be
resolved in the opinion process.

     We do not believe the facts presented in question 2 are sufficiently        different
from those presented in question 1 to require separate treatment.




                                         p. 933
John W. Davis - Page Three         (Mw292)




      You inform us that the office layouts under consideration in question 3 are
virtually identical to those presented in questions 1 and 2. The only difference of
which you inform us is that the lobby &es not have a door opening on a public
thoroughfare. You do not inform us where the lobby leads to. As already stated, the
statute requires that the optometrist’s office shall have a patient’s entrance opening on
“a public . . . lobby, corri&r, or other public thoroughfare.” V.T.C.S. art. 4552-5.15,
Sb. We cannot determine whether the lobby in question 3 is a public lobby without
resolving fact questions, which cannot be done in the opinion process.

       Question 4 concerns sn optometrist’s office next door to a dispensing optician.
Both businesses are located in a mall The storage room of each office opens into a
common restroom. Thus, the two offices are not separated by a solid partition, since
                                                      .
each office has access to the other through doors leadmg out of the storage areas into
the common restroom. We believe these premises are in violation of subsection (b) of
article 4552-5.15.

                                       SUMMARY

              Article 4552-5.&(b) of the Texas Optometry Act, requires
           premises occupied by an optometrist to be separated from
           premises occupied by a dispensing optician by solid partitions or
           walls. Such solid partitions or walls may contain glass panels
           but may not be broken by a door or window which opens.

                                   #       zx&



                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE

Susan L. Garrison, Acting Chairman
C. Robert Heath




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