Clinton DeWolfe, O.D.      Opinion No. JM-1081
Chairman
Texas Optometry Board      Re:   Whether the Texas Optometry
P. 0. Box 988              Act prohibits  an optician   from
Blanco, Texas   78606      giving another    free pair    of
                           spectacles, eyeglasses or contact
                           lenses to a person who purchases
                           a first pair  (RQ-1667)

Dear Dr. DeWolfe:

     You inform us that opticians and national  laboratories
have recently offered a free pair of eyeglasses or contact
lenses to purchasers of a first pair of glasses or contact
lenses. You ask whether these "buy-one, get-one-free" sales
violate section 5.06 of the Texas Optometry Act and a board
rule based on that section.      Section 5.06 provides     as
follows:

           It shall be unlawful    for any person   in
        this state to give, or cause to be given,
        deliver, or cause to be delivered,    in any
        manner whatsoever,   any  spectacles or   eye-
        glasses, separate or together, as a prize
        or premium,  or as an inducement     to sell
        any book, paper, magazine    or any work of
        literature or art, or anv item of merchandise
        whatsoever.   (Emphasis added.)

V.T.C.S. art. 4552-5.06. A person who violates any provi-
sion of the Texas Optometry Act is guilty of a misdemeanor
punishable by a fine, confinement  in the county jail, or
both. V.T.C.S. art. 4552-5.19.

     An Optometry  Board rule provides that "no person    in
this state shall give . . . any contact lenses as a prize or
premium, or as an inducement to sell any book, paper,
magazine, or any work of literature  or art, or any item of
merchandise whatsoever."  22 T.A.C. 5 273.3. The rule does
not state that it is unlawful to give contact lenses as a
premium to sell an item of merchandise.




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     You ask whether    section  5.06 and board   rule 273.3
prohibit giving a second pair of spectacles, eyeglasses,  or
contact lenses to a person who purchases a first pair.    If
we conclude  that this practice     is prohibited,   you ask
whether it would also prohibit a gift of free frames or free
lenses as an inducement   to sell eyeglasses, and a sale of
eyeglasses, frames, or lenses for one cent or another
insignificant amount.

     Article 4552-1.02, V.T.C.S., provides in part:

           The 'practice of optometry' is defined to
        be the employment of objective or subjective
        means . . . for the purpose of ascertaining
        and measuring  the powers of vision   of the
        human eye, and fitting lenses or prisms   to
        correct or remedy any defect or abnormal
        condition of vision. . . T

V.T.C.S. art. 4552-1.02(l).

     A "dispensing   optician"   or *'opthalmic dispenser"    is
defined as Ita person not licensed as an optometrist          or
physician who sells or delivers to the consumer     fabricated
and finished spectacle   lenses, frames, contact lenses, or
other opthalmic   devices prescribed by an optometrist        or
physician."   V.T.C.S. art. 4552-1.02(5).   See V.T.C.S.   art.
4552-1.02(3)(A) (ophthalmic dispenser is not prohibited from
making facial measurements to dispense or adapt ophthalmic
prescriptions or lenses, products and accessories).        4E
also Williamson v. Lee Ontical of Oklahoma, 348 U.S.
486 (1955) (an optician iS    qualified to grind lenses,   fili
prescriptions, and fit frames).

     A l%wo-for-onel~ sale of eyeglasses   by a dispensing
optician may merely be a pricing policy which gives a volume
discount.  We will not, however, deal with your question  in
terms of pricing  policies that may be adopted by persons
who sell prescription  glasses.  Instead, we will consider
whether a pair of spectacles, eyeglasses, or contact  lenses
is an "item of merchandise" within section 5.06 of the act.

     Article 4552 does not define the term       "merchandise,"
but it uses this word in other provisions.       When the same
word is used more than once in a statute, it     will be given
the same meaning,  unless a different  intent    is indicated.
Brown v. Darden, 50 S.W.2d 261 (Tex. 1932).

     Article 4552-5.17, V.T.C.S., provides in part:




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           Nothing   in this Act shall be construed   to
        apply to     persons who sell     ready-to-wear
        spectacles   and eyeglasses  as merchandise   at
        retail . .   . . (Emphasis added.)

V.T.C.S. art. 4552-5.17.  The definition of the "practice of
optometry" includes a similar provision on selling ready-to-
wear spectacles or eyeglasses as merchandise.  V.T.C.S. art.
4552-1.02(l).

     These provisions   apply to the sale of mass-produced
items like non-prescription   sunglasses and eyeglasses   that
are essentially magnifying glasses in a frame. These    items
are not custom-made    to correct the wearer's    defects   in
vision and no special order is necessary to buy them.1

     t'Merchandisel'has been broadly defined as "all goods
which merchants usually buy and sell, whether at wholesale
or retail; wares and commodities such as are ordinarily  the
objects of trade and commerce."   Black's Law Dictionary 890
(5th ed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex.
Ct. App. 1891).    A "merchantl' is a "person who purchases
goods at wholesale    for resale at retail.'!    Black's Law
Dictionary, sunra.

     "Merchandise" has also been defined more narrowly    to
exclude an item which was specially prepared or modified
according to the purchaser's specifications.     A Missouri
court has held that a contract to prepare and set up a
monument in a cemetery was a contract for labor and not a
contract for "goods, wares, and merchandise"     within  the
state's statute   of  frauds.   Carrollton Monument  Co.  v.
Gearv, 240 S.W.  506 (MO. Ct. App. 1922).




     1. A prior version of section 5.06 describes in some
detail the sale of eyeglasses  as merchandise.      A 1925 bill
amending the statute  regulating  optometrists   provided   that
"[plersons who sell spectacles   and eye-glasses as merchan-
dise" meant  "merchants who do not practice optometry,        or
offer to practice optometry,   but   who  sell   spectacles   or
eye-glasses as merchandise, after  they  have  been  selected by
their customers  alone without   the aid from the merchant
. . . other than the  particular  and complete and. ready-to-
wear spectacles or eye-glasses   selected by the customer     in
person from trays- or other containers. . . .'I Acts. 1925,
39th Leg., ch. 31, 5 13-c, at 151.




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     Texas courts have also recognized this distinction   in
defining "merchandise*' under the Bulk Sales Law, which
applies to the sale in bulk of a stock of merchandise,    or
merchandise  and fixtures pertaining    to conducting   said
business otherwise than in the ordinary   course of trade.2
Hobart MFG. Co. v. Jovce & Mitchell, 4 S.W.2d 185, 187 (Tex.
Civ. App. - Fort Worth 1928, no writ).    In Axtell Co. v.
Word
-,    29 S.W.2d 421 (Tax. Civ. App. - Austin 1930, no writ),
the court stated that Texas courts have construed the Bulk
Sales Act as not applying to "stock on hand used          as
incidental to or in connection    with labor or mechanical
skill." The court further stated as follows:

        The words, 'stock of merchandise,* as used in
        the statute have been uniformly construed  by
        our courts to be used in the common       and
        ordinary acceptation of those terms, and to
        mean the goods, wares, or chattels which    a
        merchant holds for sale at retail for profit,
        and which are constantly    going out of the
        store . . . and being replaced by other goods
        without any appreciable   change of character
        by the labor or mechanical skill of purchaser
        [i.e., of the person who purchased the goods
        for resale].

29 S.W.Zd 421.

     Thus ltmerchandisellin some statutes   does not include
items which must be changed and adapted to the customer's
individual   requirements.    We   believe  that the    Texas
Optometry Act uses "merchandise" in this sense.    In section
5.17, "ready-to-wear   spectacles  and eyeglasses"  sold "as
merchandise at retail" are mass-produced goods not adapted
to the customer's   vision. This language does not include
eyeglasses and spectacles    that may only be sold on        a
prescription.   The same   definition of "merchandise"   also
applies to the prohibition   in article 4552-5.06,  V.T.C.S.,
against giving away eyeglasses as an inducement to sell a



      2. The Bulk Sales Act has been repealed and replaced
by the Uniform  Commercial Code -- Bulk Transfers, Bus. &
Corn. Code ch. 6. We have cited cases which construe     the
Bulk Sales Law to illustrate     a possible   definition  of
"merchandise."  We express no opinion on whether the frames
and lenses which a dispensing optician adapts in accordance
with written prescriptions would be "merchandise" within the
Bulk Transfers provisions.




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     Dr. Clinton DeWolfe - Page 5       (JM-1081)




     book, paper, magazine,  work of literature  or art, "or any
     item of merchandise."   Article 4552-5.06 does not prohibit
     a dispensing optician or ophthalmic   dispenser from giving
     away a second pair of prescription eyeglasses as a means of
     motivating people to have him fill the prescription for the
     first pair.

          Two other provisions   of the Texas Optometry Act show
     that a "mercantile   establishment"      does not include the
     business  premises  of    a dispensing      optician.      Article
     4552-5.14 regulates the business practices     of an Optometrist
     "who leases space from and practices          optometry    on the
     premises of, a mercantile    establishment.1'     V.T.C.S.       art.
     4552-5.14(a).  See senerally Attorney General Opinion O-1588
     (1939) (practice by optometrists     in jewelry stores).           It
     requires the leased space to be separated from space used by
     other occupants of the premises and prohibits operation            of
     the optometrist's practice as a department of the mercantile
     establishment.  V.T.C.S. art. 4552-5.14(d)-(g).

          Article 4552-5.15, V.T.C.S., governs the business rela-
     tionships of optometrists   with dispensing  opticians.   It
     permits  a dispensing   optician   to lease space to      an
-.
     optometrist.   It also provides    for complete   separation
     between the premises of an optometrist and a dispensing
     optician if both occupy space in the same building.      See
     Attorney General Opinion MW-292 (1981).

          Both provisions deal with the leasing of premises     and
     with separating an optometrist's   business from other types
     of business conducted   in the same building.   The leqisla-
     ture's adoption    of separate provisions    to govern     the
     optometrist's relationship   to "mercantile   establishments"
     and to "dispensing   opticians" indicates that a dispensing
     optician does not operate a tUmercantile establishment."
     These provisions   carry out and support the distinction
     between "merchandise" and prescription glasses and contact
     lenses which we have found in article 4552-5.06, V.T.C.S.

          Moreover, this situation appears to be an appropriate
     case for applying the maxim of ejusdem qeneris.        Where
     general words follow specific words in a statutory  enumera-
     tion, the general words are construed      to embrace   only
     objects similar  in nature to those objects enumerated    by
     the preceding specific words. Emolovees'    Casualtv Co. v.
     Stewart Abstract Co., 17 S.W.2d 781 (Tex. Comm'n App. 1929).

          The first version of article 4552-5.06 was adopted   in
     1925. Acts 1925, 39th Leg., ch. 31, at 149. We are unaware
     of any history evidencing     the legislature's   intent in
     adopting this provision, although its language suggests that



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it was directed at a practice of giving away eyeglasses with
the purchase of reading material.   It is however reasonable
to assume that the legislature adopted this provision     to
protect members of the public from receiving eyeglasses with
lenses that would not correct their defects in vision.   The
provision of two pairs of prescription glasses for the price
of one does not violate this policy.

     Since we have concluded   that "buy-one, get-one-free"
sales do not violate article 4552-5.06,   V.T.C.S., we need
not answer your other questions, which are contingent on a
contrary determination.

                       SUMMARY

           The Texas Optometry Act does not prohibit
        a dispensing optician   or an ophthalmic  dis-
        penser from giving a second free pair of
        prescription spectacles, eyeglasses, or con-
        tact lenses to a person who purchases a first
        pair.   Article  4552-5.06, V.T.C.S.,    which
        prohibits any person   from giving  spectacles
        or eyeglasses as an inducement to sell "any
        book, paper, magazine, or any work of litera-
        ture or art, or any item of merchandise,"
        does not prohibit     "buy-one, get-one-free"
        sales of prescription glasses by dispensing
        opticians or ophthalmic dispensers.




                                     JIM     MATTOX
                                     Attorney General of Texas

WARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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