                                                      ,June 1, 1973                ,.
                                                                          ,’
            The Honorable J.“Manley Head                         Opinion No. H-         42   ”
           ,Executive Secretary of the Texas                   ‘,
            Board of Chiropractic  Examiners              ,.   ,. Re:       Authority.of   the Texas Board
           .I002 City National Bank Building                                of Chiropractic   ,Examiners to
       ,, ,,Austin,  Texas 78701                                            regulate advertising    by chiro-
                                                                            practors   and to enforce such
              .Dear Mr.              ,.~,,
                               Head: ,..,, ,~                           ..~ regulations.
,.,                                     .:.‘>,,,.. ,,
              Your letter requesting .our, opinion.advires’that   on September ,,23, 1973,
      ~._,the,Tcxas ,Board of .Chiropractic      Examiners paseed a.,rule reading:

                                 ‘Under the:provisione,.of paragraphs 5, 6,, and 6
 ,.     .::         .~ ~.”of Sect,ion 14a [Article    4512b, 5 14a] the Board rules
                        ,, that it ihall be oonaidered unprofeariqnal conduct for                    ~:
      ‘;,,,              ‘. a licen,eee:
                                                    .; ,..
                            . . .

                    .~~            .“9. To advertise,,in newspapers .with advertisements
       ..~     :.            ,,in,excess,of two colttmn.. inches except in institutional
                             ,advertising under ,the auspice8 of a ,chiropracttc organ-          :    ,’
                          ‘~ -izationrecogniaed    by the Texas Board of Chiropractic
                           ~,Examiners.”

                  The practice oft chiropractic .is,:govern.ed ,by Arttile.,4512b, ,$. T. C. S. , which
              creates   the Texas Board of Chiropractic Examiners and authorizes          it ($4a) “to
              make such~ru1e.r and regulations not inconsistent with th,is law ao may be nectss
              ary for the performance    of its duties,. the reg.ulation of the practice   of chiro-
              prac,tic. and the cnforcement.of   thie Act. ‘I

                Section 14a as amended in 1971 (Act6 19711 52nd Leg.‘, p. 1349, 6. 357) lists
         ,,twenty-one specific derelictiona for which the Board of Chiropractic Examiners
           .may refuse ,to admit.a person’to its examinations or may.cancel,     revoke or
            suspend licenses or plaoe licen.sets upon probation..     Paragraph 5 thereof conce
            among other things, grossly unprofes.sional or dishonest conduct of a character
        ~...likely to deceive or,.defraud the public; paragraph.6 concerns the urs~f. advert-
            iaing of a character to mislead or deceive; and paragraph 8 concerns the advert
            ising of profe.8sional superiority,  or of: superior performances.   But none cove:
            the size of advertisements   to be placed in newspapers as does Rule 9. Sub-
                                                p, 170
       The Honorable         J. Manley Head, page 2     (H-42)




       section 19 of 5 14a does proscribe ads in excess          of two inches by one’column in
       the yellow Rages of telephone directories.
.’
           It is our opinion,      therefore,  that Rule 9‘adopted’ in September,   does not
       conflict   with’but    rather is quite consistent with’the pr‘ovisions of Article 4512b.

             As to the authority of the Board of Chiropractic Examiners to adopt a
        rule such as Rule 9, there is a remarkable similarity between 5 4a of Art-
        icle 4512b. quoted above, and Article 4556, ,Vernon’s Texas Civil Statutes,
        governing’ the authority of the Texas State Board of Examiners          in Optometry
        which Board is given the power “to mike such rul’es’and regulations not incon-
        sistent with this law as may be necessary         for the.performance   of its duties,
        the regulation of the practice of optometry ind the enf&cement           of this Act. ”
        In Kee v.’ Barber,      303. S. W. 2d 376 (Tex. !1957)‘.the Supreme’ Court note’d the
        similarity   of the authorjoation in the optometry statute to that in Article
        320a-1 authorizing the Supreme Court of Texas to “propose rul.es and regu-
        lations,.  . ‘. ‘for the . . , conduct of the State Bar . . ” and in Article
        4509 authorizing the T.exas State Board of Medical Examiners to “make such
     .’ rules and regulations not inconsistent with’this law as may be ‘necessary for
        . . .’ the regulation of .the practice of medicine . . . ” The Court upheld ,the
        action of the Texas State Board of Examiners in Qptometr)r in adopting
        additional rules,

            Article 4563, of the’Act governing optometry, like Article 4512b, 0 I4a,
       governing the practice of chiropractic,   listeda number of specific acts for
       which a license may be refused. or cancelled or revoked.      The Supreme   Court
       in Texas State Board of Examiners in Optometry v. Carp, 412 S. W. 2d 307
       (Tex. 1967) upheld a specific rule on its findings that the provisions of the.
       rule were in harmony withthe general objectives of the act and were con-
       ,sistent with one or more of its specific proscriptions.

           In accordance with, that, decisionit is our opinion that Rule 9,adopted
       by the Texas Board of Chiropractic Examiners is .within the scope of authorit;
       granted to that Board and its violation would authorize the Board td cancel,
       revoke or suspend the license of a 1icensed’Tcxas     chiropractor.

            You have not advised us how Rule 9 fits in with the ether provisions of
       Article 4512b and. without such knowledge,, we do not know and donnot
       answer as to, whether its enforcement comports ,with the r,equirement? of
     *                                      We only answer that, in our opinion,
       due process and, equal protection.
       the Texas Board of Chiropractic    Examiners,  when empowered to make


                                               p. 171    ‘,
The Honorable   J. Manley Head, page 3 (H-42)




rules and regulations necessary   for the regulation of the practice   of
chiropractic, did have the right to adopt Rule 9 as one such rule,

                               SUMMARY

                   Section 4a of Article 4512b empowering the
            Texas Board of Chiropractit     Examinerr    to adopt
            rules and regulations necessary     for the regulation
            of practic of chiropractic authorizes the adoption
            by the Board of such rules including a rule limiting
            the rise of newspaper ad,vertirements,     provided
            that such rules do not conflict.with and are consis-
            tent with specific prohibitory language of Section
            14a of Article 4512b.

                                     Very truly yours,




                                xl   Attorney   General   of Texas




DAVID M. KENDALL,        Chairman
Opinion Committee




                                      p. 172
