         THE     ATTORNEY           GENERAL
                         U-BP%-BCXAS




Honorable William J. Kemp           Opinion No.   M-1233
President, Texas State Board
  of Dental Examiners               Re:   By what method may
310 Capitol National Bank Bldg.           third parties legally
Austin, Texas 78701                       engage in providing
                                          dental care for people
                                          in Texas, and related
Dear Dr. Kemp:                            questions.

          In your recent request for an opinion from this office,
you asked the following questions:

          Question 1.

          By what method may third parties, whether in-
     dividuals or groups, government or business, chari-
     table organizations or professional organizations
     legally engage in providing dental care for people
     in this State?

          Question 2.

          Can a professional organization, such as the
     Texas Dental Association, contract for dental
     services to be rendered to citizens of this State
     by its members who are Texas dental licensees?

          Question 3.

          Can the Welfare Department or Health Department
     of the State of Texas contract for dental care to
     be rendered to citizens of this State by Texas
     dental licensees?

          Question Ir.

         Must the provisions of the Dental Service
    Corporation (Article 1396-2.01, Sub. A(1)) be com-
    plied with where the private relationship of doctor
    and patient is not originally present but is


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Hon. William J. Kemp, page 2   (M-1233)



     furnished by others than the individual   (patient)?

          The initial problem in answering your first, sedbnd,
and fourth questions is whether s   third party can contract
for dental services, as defined by Article 4551a, Vernon's Civil
Statutes,* to be rendered to citizens of this State, because
Subdivision (4) of that statute provides:

          "Any one who owns, maintains or operates any
     office or place of business where he employs or
     engages, under a   kind of contract whatsoever, any
     other person or persons to practice dentistry as
     above defined shall be deemed to be practicing
     dentistry himself, and shall himself be required
     to be duly licensed to practice dentistry as herein-
     above defined, and shall be subject to all of the
     other provisions of this Chapter, even though the'
     person or persons so employed or engaged by him
     shall be duly licensed to practice dentistry as here-
     inabove defined."   (Emphasis added.)

Article ‘1551~provides that "The actual practice of dentistry
in violation of the laws of the State shall be enjoined at the
suit of the State . . . ."

          The prohibition against third parties contracting for
such dental services is repeated in Article 754a, Vernon's Penal
Code. Article 752 of that Penal Code provides:
          11. . . It shall be unlawful for w   person
     or persons to operate, manage, or be employed in
     any room, rooms, office, or offices where dental
     service is rendered or contracted for under the
     name of a corporation, company, association, or
     trade name, or in any other name than that of the




*All references to Articles are to Vernon's Civil Statutes, un-
 less otherwise noted.


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Hon. William J. Kemp, page   3   (M-1233)



     legally qualified dentist or dentists actually en-
     gaged in the practice of dentistry in such room,
     rooms, office or offices; provided, however, this
     shall not prevent two or more legally qualified
     dentists from practicing dentistry in the same
     offices as a firm, partnership, or as associates
     in their own names as stated in licenses issued to
     them . . . Each day of violation of this Article
     shall constitute a separate offense."  (Emphasis
     added.)

Article 754 of that Penal Code makes any violation of the above
articles punishable by a fine of $100 minimum to $1000 maximum
or 1 to 12 months in jail or both.

           The respective exceptions to the above civil and criminal
prohibitions are found in Article 4551b, Vernon's Civil Statutes,
and Article 753,Vernon's Penal Code. The only exception that
applies to the questions at hand is exception (8), the same word-
ing appearing in both Articles, as follows:

          "The definition of dentistry . . . shall not
     apply to:       . (8)Dental Health Service Corpora-
     tions legaliy'chartered under Subsection (1) of
     Article 2.01, of the Texas Non-Profit Corporation
     Act; . . ."

The Texas Non-Profit Corporation Act, Article   1396-2.01,
                                                         Sub-
division A(l), provides in part:

          "(1) Charitable corporations may be formed
     for the purpose of operating a Dental Health
     Service Corporation which service corporation
     will manage and coordinate the relationship be-
     tween the contracting dentist, who will perform
     the dental. services, and the patient who will
     receive such services where such patient is a
     member of a group which has contracted with the
     Dental Health Service Corporation to provide dental
     care to members of that group . . . .'I

          This language of the Texas Non-Profit Corporation Act is
permissive and not mandatory by its terms. However, since any
third person or association attempting to contract for services
to be rendered to citizens of the State would be in violation of
the Penal Code and subject to civil injunctive proceedings, it
would seem that the abovementioned Non-Profit Corporation provides

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Hon. William J. Kemp, page 4     (M-1233)



the only answer at present to your questions one, two, and four.

          Since Article 4551a, Vernon's Civil Statutes, and Article
752, Vernon's Penal Code, by their terms do not prohibit State
action, the answer to your third question requires examination
of the statutory powers of the departments named. The Medical
Assistance Act of 1967, Article 6953-1, administered by the State
Department of Public Welfare, states in section (2):

          "It is the intent of the Legislature to make
     statutory provision which will enable the State of
     Texas to provide Medical Assistance on behalf of
     needy individuals of this state and to enable the
     state to obtain all benefits provided by the Federal
     Social Security Act as it now reads or as it may here-
     after be amended, or by any other Federal Act now in
     effect or which may hereafter be enacted within the
     limits of funds available for such purposes.  Wherever
     used in this Act the term 'Medical Assistance' shall
     include all of the health care, services, assistance
     and benefits authorized or provided for in such
     Federal legislation."

The Social Security Act in 42 U.S.C. 1396(d)(a), defines "medical
assistance" as including dentists' services to enumerated classes
of people. Therefore, the State Department of Public Welfare can
contract for the rendering of dental services as provided in
Article 695j-1. However, the contract by the State Department of
Public Welfare can cover only individuals who are eligible and
receiving a grant of certain public assistance as specified by
the statutes at the time of rendering the medical or dental
services.

          In the absence of a statutory duty or responsibility to
provide dental care, an agency such as the State Department of
Public Health could not contract to provide such care. However,
the State Department of Public Welfare is statutorily empowered
to administer the Medical Assistance Act of 1967 under Article
6953-l.

          Furthermore, the State Department of Public Welfare is
statutorily authorized to enter into cooperative agreements with
other State agencies and departments, such as the State Department
of Public Health, as may be deemed "expedient," under Article
695j-1, Section 3(7) and thereby legally engage in providing
dental care as above stated. It is our opinion that the Dental
Practices Act, including Article 4551~ and Articles 752 and 754a,

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,   .




        Hon. William J. Kemp, Page 5      (M-1233)



        are Inapplicable to the State and Its agencies in the discharge
        of these statutory responsibilities.  53 Tex.Jur.2d 58, Statutes,
        Sec. 32; 49 AmJur. 235, States, Sec. 14, p. 236,Sec. 15.

                                SUMMARY

                  Third parties, except the State and Its
             agencies, whether individuals, associations, or
             corporations, may legally contract for dental care
             to be rendered to citizens of the State only by
             complying with Article 1396-2.01 of the Texas Non-
             Profit Corporation Act. The State Department of
             Public Welfare and other State agencies, can so
             contract pursuant to the Medical Assistance Act
             of 1967, (Article 695j-1, V.C.S.) and Article
             695c,Section 4(12), Vernon's Cfil Statutes.




        Prepared by Kerns Taylor
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        W. E. Allen, Acting Chairman
        Jim Swearlngen
        Gerald Ivey
        James McCoy
        James Quick

        SAMUEL D. MCDANIEL
        Staff Legal Assistant

        ALFRED WALKER
        Executive Assistant

        NOLA WHITE
        First Assistant




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