           THEA~TORNEYGENERAI.
                   OF TEXAS




                    November 18, 1957

Honorable Ralph Prince        Opinion No. WW-299
Criminal District Attorney
Gregg County                 Re:   Under the provisions of Chap-
Longview, Texas                    ter 240, page 501, Vernon's
                                   Annotated Civil Statutes, Ar-
                                   ticle 45659, regulating the
                                   practice of optometrists,
                                   what is the meaning and sig-
                                   nificance of the word "soli-
Dear Mr. Prince:                   clt" and related questions?
          You have requested the opinion of this Department on
the proper construction of Chapter 240, Article 4565g, Tex.Civ.
Stat. (Vernon, 1948), as amended, as such Act relates to the
following questions:
          "1. Does the use of the word *lsollcitnas used
     in the act preclude bona fide advertising of prices,
     premiums, discounts, and gifts in newspapers or tele-
     vision so long as such ads are not fraudulent, deceit-
     ful, or misleading, or so long as such ads do not tend
     to create a misleading impression?
          "2. Since the caption of the act does not in-
     clude the prohibition against the soliciting of pa-
     tients or patronage for an optometrist, does this
     omission therefrom destroy the validity of that part
     of the body of the act purporting to prohibit the so-
     licitation of patients or patronage for an optometrist?*
          Article 4565g, Tex.Civ,Stat. (Vernon, 1948) as amended
by Senate Bill No. 104, Acts 55th Legislature, Regular Session,
1957, Vernon's Texas Session Law Service, page 501, provides as
follows :
          "Article 45659.
          "Nothing in this Act shall be construed so as to
     prevent an ophthalmic dispenser, who does not practice
     medicine or optometry as defined by the laws of this
     State, from preparing, filling, duplicating, compound-
     ing or adapting ophthalmic prescriptions, dispensing
     ophthalmic lenses, products and accessories, in accord-
     ance with the specific directions of a prescription
Honorable Ralph Prince, page 2   @‘J-299
                                      1

    written and signed by a licensed physician or
    optometrist; provided, however, the fitting of
    contact lenses shall be done only under the
    direct supervision of a licensed physician or
    licensed optometrist as defined by the laws of
    this state. It shall be unlawful for any person,
    firm or corporation in this state to solicit
    patients or patronage for any individual licensed
    as a physician or optometrist, or for physicians
    or optometrists as professional groups, or to
    publish, cause or allow to be published any state-
    ment or advertisement concerning ophthalmic lenses,
    frames, eye-glasses, spectacles or parts thereof
    which is fraudulent, deceitful, misleading, or
    which in any manner whatsoever tends to create a
    misleading impression, including statements or
    advertisements of bait, discount,.premiums, price,
    gifts or any statements or advertisements of a
    similar nature, import or meaning."
          The caption of the amendatory Act states in part:
          "An Act relating to ophthalmic dispensers;
     providing certain exemptions for ophthalmic dis-
     pensers from the provisions of Title 71,Chapter
     10, Revised Civil Statutes of Texas; amending A+
     title 4565g, Revised Civil Statutes of Texas
     allowing ophthalmic dispensers to prepare, fill,
     compound, and adapt ophthalmic prescriptions,
     dispense ophthalmic lenses, products and acces-
     sories in accordance with the specific directions
     of a prescription written and signed by a li-
     censed physician or optometrist; . . .D

          Considering your second question first the above
quoted portion of the caption of the amendatory Act specifi-
cally describes certain provisions which are contained in the
amended Article 4565g. It should be noted that such caption
does not merely state that Article 4565g is amended and then
proceed to enumerate the provisions of the original Act. To
the contrary, it specifically enumerates the provisions of the
Act in its amended form. It does not contain any language
which could give the reader of the caption an indication that
the amendment contains a further provision relating to solici-
tation. The portion of the amended Act relating to the soli-
citation of patients, and to publication of certain statements
and advertisements, is a new law in the sense that no similar
provision was contained in Article 45659 prior to the amend-
ment. It is obvious from the reading of the statute that
 Honorable Ralph Prince, page 3   @W-299)


 Article 4565g, prior to the amendment, and the first portion
 thereof, subsequent to the amendment, relates to a limitation
 placed upon ophthalmic dispensers from the performance of cer-
 tain acts relating to preparation, filling, duplicating, com-
 ,poundingor adapting prescriptions or dispensing lenses, with-
 out specific direction of a prescr1ption written and signed by
 a licensed physician or optometrist. The latter portion of the
 amended Act relating to the solication of patients and publica-
 tion of certain statements or advertisements, though relating
 to the field of optometry nevertheless is a completely separ-
 ate and unrelated prohibition from that contained in the first
 portion of the Act and which is described in the capt,ionthere-
 of.
            It is well settled that the introduction of the "new
  substantive matter in the amendatogrAct not germane or perti-
 nent to that contained in the original section" characterizes
,,the amendatory Act as independent legislation upon a~,matternot
  expressed in the title of the Act, and that the portion of the
 amendatory Act which contains the new substantive provision is
 rendered void. Katz v. State 122 Tex.Crim.R. 231; 54 S.W.2d
  130. With this rule in mind,'we now look back to the caption
  of the amendatory Act and see that it is stated therein that
  such Act amends Article 4565g in certain particular respects,
 without mentioning the addition of the new solicitation and pub-
 lication provision. The rule as stated in the J&&g case was
 also followed in Walker v. State, 134 Tex.Crim.R. 500, 116 S.W.
  2d 1076, and in Board of Water Ensineers of the State of Texas
 v. Citv of San Antonio, _    Tex . -,  283 S.W.2d 722.
          We conclude that the provisions in the amended Act
relating to solicitation and publication of certain statements
or advertisements is new substantive matter which has .been added
in the amended statute and which is not sufficiently germane or
pertinent to that contained in the original Act to abrogate the
necessity of specifying the addition in the caption of the
amendatory legislation. It is our view, therefore that the por-
tion of Article 4565g, Tex.Civ.,Stat.(Vernon, 1948j, as amended,
which relates to the solicitation of patients and to the publi-
cation of certain statements or advertisements concerning oph-
thalmic lenses, frames, eye-glasses, spectacles or parts thereof,
is void. Since we have answered your second question in the af-
firmative it is unnecessary to consider the first question which
you submitted.
                                                             .   .




Honorable Ralph Prince, page 4   (w-299 1




          The portion of Article 4565g, Tex.Civ.Stat.
     (Vernon,1948), as amended, relating to the soli-
     citation of patients,and to the lpublicationof
     certain statementsor advertisementsis void since
     such provisionwas not contained"inthe original
     section and since the subject of this new substan-
     tive matter in the amandatoryAct is not expressed
     in the title thereof.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas


                                 ~ JiLti.*?
                                    B. H. Tlmmins, Jr.
BHT:pf:wb                           Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn,Chairman
J. Mark McLaughlin
Leonard Passmore:
C. K. Richards
Marietta McGregor Payne
REVIEWED FOR THE ATTORNEY GENERAL
BY: James N. Ludlum
