.      .




               TRE     -+ITORNEY            GENERAI.
                            OF%'EXAS




    Hon. J. C. Littrell, D.P.M.       Opinion No. M-1185
    Secretary
    Texas State Board of Podiatry     Re:    Questions relating to
       Examiners                             practice of Podiatry under
    P. 0. Box 3041                           the Professional Corp. Act
    Waco, Texas  76707                        (Art. 1528e, V.C.S.), the
                                             Professional Association
                                             Act (Art. 1528f, V.C.S.),
                                             and Art. 778a, Vernon's
    Dear Mr. Littrell:                       Penal Code.

              In your recent letter you requested the opinion of this
    office on the following questions:

                 "1. Whether podiatrists may create a pro-
           fessional association under the Texas Professional
           Association Act.

                 "2 . Whether all or part of the restrictions
           in Article 778a, Texas Penal Code, have been re-
           pealed by necessary implication by the Texas Pro-
           fessional Corporation Act.

                 "3 . Whether or not it is permissible for an
           individual or a partnership to practice under an
           assumed name, either with or without the concurrent
           listing of the individual practitioners in the
           partnership on stationery, announcements, pro-
           fessional cards, office signs, and so forth.

                 "4 . Whether the rule promulgated by the
           State Board in 1970 concerning the name which a
           professional corporation of podiatrists may use is
           valid.    In this regard, you will recall that the
           rule reads as follows:    'A Professional Corporation
           organized for the practice of Podiatry shall adopt
           a name consisting of the full or last name and de-
           gree of one or more of the share holders of the
           Corporation followed by "a Professional Corporation",
           "a Prof. Corp.", "Incorporated", "Inc.", "Company",
           or "Co.".'

                                  -5782-
Hon. J. C. Littrell, page 2     (M-1185)      .



         "5 . Whether the State Board, if it so elects,
    may adopt a rule authorizing a professional corpora-
    tion of podiatrists to use an assumed name.

          "6 . Whether the State Board may establish
     rulesor standards for the assumed name, so as to
     prevent the use of a name which would constitute
     advertising or otherwise unethical (conduct)."
     (Parenthesis ours.)

          For legislation effecting a change in terminology, see
Article 4567a1, Vernon's Civil Statutes, which reads as follows:

          "Art. 4567a.   Change of name to podiatry

          "Section 1. The name of the Texas State Board
     of Chiropody Examiners, created by the provisions
     of Article 4568, Revised Civil Statutes of Texas,
     1925, as amended, is changed to the Texas State
     Board of Podiatry Examiners.  The Texas State Board
     of Podiatry Examiners has the powers heretofore
     conferred on the Texas State Board of Chiropody
     Examiners.

          "Sec. 2. The word chiropody, wherever used
     in the laws of the State of Texas, shall hereafter
     be construed to mean podiatry.  The definition of
     the practice of podiatry is the same as the defini-
     tion heretofore of the practice of chiropody, as
     defined in Article 4567, Revised Civil Statutes of
     Texas, 1925, as amended.

          "Sec. 3. The word chiropodist, wherever used
     in the laws of the State of Texas, shall hereafter
     be construed to mean podiatrist, and any person
     heretofore licensed as a chiropodist shall be re-
     ferred to as a licensed podiatrist."




'Acts 60th Leg., R-S. 1967, Ch. 90, p. 181.

                              -5783-
Hon. J. C. Littrell, page 3    (M-1185)



                         Question No. 1

          Attorney General's Opinion No. M-551   (1970) holds, in
part, as follows:
          II. . . it is our opinion that after January
     1, 1970, the effective date of the Professional
     Corporation Act, the Professional Association
     Act applies only to individuals licensed by the
     Texas State Board of Medical Examiners.   Our con-
     clusion follows the fact that after January 1,
     1970, any profession except the practice of
     medicine, can be incorporated and the services
     can by law be performed by a corporation."    (at
     p. 4, 2629).

          The answer to your first question is therefore negative.
Podiatrists may not create a professional association under the
Texas Professional Association Act.

                         Question No. 2

          The Texas Professional Corporation Act repeals that
part of Article 778a, Vernon's Penal Code, which forbids the
practice of podiatry under a corporate name. Section 3 of the
Texas Professional Corporation Act (Article 1528e. V.C.S.) de-
fines professional service as:
          II. . . any type of personal service which re-
     quires as a condition precedent to the rendering
     of such service, the obtaining of a license, permit,
     certificate of registration or other legal authori-
     zation, and which prior to the passage of this Act
     and by reason of law could not be performed by a
     corporation, . . .II (Emphasis added.)

          We are of the opinion that the above language permits
podiatrists to form a corporation, provided the actual practice
is conducted only by licensed members. We hold that this language
expressly repeals that part of Article 778a to the contrary, but
no more.

                         Question No. 3

          It is not permissible for individuals to practice podiatry
under any assumed name except the proper corporate style; the pro-
visions of Article 778a forbid the practice under any other assumed
name.
                              -5784-
Hon. J. C. Littrell, page 4'      (M-1185)



                           Question No. 4

           The authority given the Hoard under Article 4568, Ver-
non's Civil statutes, to adopt all reasonable or necessary rules,
regulations, and by-laws is broad enough to authorize the rule set
out in this question.   The names authorized comply with Article
2.05 of the Texas Business Corporation Act, paragraph A, subdivision
(1).
                        Questions No. 5 and 6

          The Texas Professional Corporation Act repeals by im-
plication only that part of Article 778a of the Texas Penal Code
that is in conflict with the Professional Corporation Act. There-
fore, only that part of Article 778a which forbids practice under
a corporate name is repealed.   The remaining part of Article 778a
would prohibit a rule permitting practice under an assumed name
other than the proper corporate style of the corporation.

             We note that Section 8 of the Professional Corporation
Act reads:

          "A professional corporation may adopt any name
     that is not contrary to the law or ethics regulating
     the practice of the professional service rendered
     through the professional corporation."   (Emphasis
     added.)

          We are of the opinion, however, that an assumed name
other than the corporate style is unlawful under Article 778a of
the Texas Penal Code. We do not think the passage of the Pro-
fessional Corporation'Act repealed the general prohibition against
an assumed name in Article 778a, as that is not necessary to the
implementation of the Professional Corporation Act. Your fifth
and sixth questions are accordingly answered in the negative.

                            SUMMARY

          Podiatrists may not create a professional
     association under the Texas Professional Act
     (Article 1528f, Vernon's Civil Statutes).

          Podiatrists may lawfully create a pro-
     fessional corporation where all shareholders
     are licensed podiatrists.  Article 778a, Texas
     Penal Code, is repealed by Article 1528e, Vernon's


                               -5785-
.      .




    Hon. J. C. Littrell, page 5       (M-1185)



           Civil Statutes, only to the extent that it pro-
           hibits formation of this type corporation.

                It is not permissible for individuals to
           practice podiatry under an assumed name other
           than the proper corporate style of a corporation
           lawfully organized under the Professional Corpora-
           tion Act.

                The rule set out in Question No. 4 is valid
           on its face.

                Most of Article 778a of the Texas Penal Code
           is still in force and prohibits the practice of
           podiatry under any assumed name except the actual
           corporate style.




                                                 eneral of Texas

    Prepared by James S. Swearingen
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Bill Flanery
    Bill Craig
    John Banks
    John Reeves

    SAMUEL D. MCDANIEL
    Staff Legal Assistant

    ALFRED WALKER
    Executive Assistant

    NOLA WHITE
    First Assistant



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