                             OF     TEXAS
                        AUSTIN.     TRZXAS          78711



                                April    17, 1975


The Honorable   Cecil M.   Pruett                     Opinion No.   H-   584
County Attorney
Hutchinson County                                     Re:   Constitutionality    of
630 North Deahl                                             article 4590e,    section   3,
Borger,   Texas 79007                                       v. T. c. s.

Dear Mr.   Pruett:

     You have requested our opinion regarding the constitutionality    of
article 4590e.  section 3. V. T. C.S., and the interpretation  of that statute
by the Texas State Board of Medical Examiners.       The statute reads,   in
pertinent part:

           Sec. 3. Every person         licensed to practice the
       healing art.    . . by . . . the Texas State Board of
       Medical Examiners        . . . shall in the professional
       use of his name on any sign, pamphlet,          stationery,
       letterhead,   signature,     or on any other such means
       of professional    identification,    written or printed,
       designate in the manner set forth in this Act the
       system of the healing art which he is by his license
       permitted to practice.        The following are the legally
       required identifications,       one of which must be used
       by practitioners     of the healing art:

        (1) If licensed by the Texas State Board of Medical
        Examiners     on the basis of the degree Doctor of
        Medicine:    physician and/or   surgeon, M. D. ; doctor,
        M.~‘D.; doctor of medicine;    M.D.

        (2) If licensed by the Texas State Board of Medical
        Examiners     on the basis of the degree Doctor of
        Osteopathy:     physician and/ or surgeon,   D. 0. ;
        Osteopathic    physician and/or    surgeon; doctor,  D. 0. ;
        doctor of osteopathy;    osteopath;   D. 0.
        . . .




                                        p.   2605
The Honorable    Cecil   M.   Pruett,   page 2       (H-584)




     The Board interprets   this statute to prohibit the use of the designation
I’M. D.” by a person whose medical license is based upon the degree of
Doctor of Osteopathy.     You ask whether such prohibition violates the equal
protection  clauses of article 1. section 3 of the Texas Constitution    and the
Fourteenth Amendment      to the United States Constitution.

     “Osteopathy”   has long been recognized   as within “the practice of medi-
cine” in Texas . Attorney General Opinion O-1298          (1939).    We have previously
held, however,    that the Board of Medical Examiners        is neither authorized
nor required to issue a license as a “doctor of medicine”          to a practitioner
who received his education at an osteopathic      school,    and whose M. D. degree
was awarded merely by making application        for it under the laws of California.
Attorney General Opinion C-48 (1963).       “The degree M. D. connotes an edu-
cation obtained at a medical    school and a D. 0. degree likewise contemplates
a degree obtained and based upon study at an osteopathic          school.”   la.,   at 220.

     That opinion reflected a correct interpretation        of the statute,   but it did
not reach the question of constitutionality.        A three-judge    federal  court in
Georgia,   however,    recently considered,     in Oliver V. Morton,      361 F. Supp.
1262 (N. D. Ga. 1973), the constitutionality      of a Georgia statute similar to
article 4590e.    The court upheld the statute’s facial validity and stated that
it is reasonable   for a state to impose separate classifications         for M. D.‘s
and D. 0. ‘8 and consequently      to prohibit the use of the designation      of M. D.
by a person whose medical license is based on ,tbe degree of Doctor of
Osteopathy.     However,    the court also held that the Composite        State Board
of Medical Examiners       violated the equal protection     clause of the United States
Constitution in its application     of the Georgia statute.

    The Georgia State Board had been licensing as M.D. ‘s foreign-trained
practitioners    who had not been awarded a degree which was the equivalent
of the M. D. degree,     and simultaneously    had been refusing to license as
M. D. ‘s pradtitioners    with a D. 0. degree.    The court held that the state could
not “differentiate   between two qualified physicians    who have not earned an M. D.
degree and allow one to parade under an unearned:M.         D. degree while refusing
to allow the other to do SO.” g.,       at 1269.

    In our opinion,     section 3 of article 4590e.   similar to the Georgia statute,
is constitutional   on its face.  Of course,    this statute, like any other statute
is subject to discriminatory     and constitutionally    proscribed   application. We
have no facts before us to indicate that the Texas State Board of Medical
Examiners     is applying the statute in such discriminatory        manner.



                                         p.   2606
The Honorable   Cecil   M.     Pruett,   page 3        (H- 584)




                                 SUMMARY

            Section 3 of article 4590e.  which authorizes   the
        Texas State Board of Medical Examiners      to prohibit
        the use of the designation  of “M. D. ” by a person
        whose medical license is based upon the degree of
        Doctor of Osteopathy is, on its face, constitutional.




                                                 Attorney   General   of Texas

APPROVED:




DAVID   M.   KENDALL,        First   Assistant




C. ROBERT HEATH.         Chairman
Opinion Committee




                                         p.   2607
