     _, _.   ..




                       TEEA~ORNEY               GENERAL
                                    OFTEXAS

GERALD C. MANN
X-
ATTORN-    GIENEHAL




      Phil R. Russell, D. 0.
      R. H. Peterson, D. 0.
      Everett W. Wilson, D. 0.
      Members Texas State Board of Medical Examiners
      1114 Medical Arts Building
      San Antonio, Texas
      Gentlemen:
                           Opinion No. O-1298
                           Re: Is the term wosteopath" synonymous
                                with or within the meaning of the
                                phrases %he practice of medicine."?
           Your letter of August 17, 1939, with reference
      to the atove question, has been received by this depart-
      ment.
           It is believed that your letter will be fully
      answered by a review of the Texas cases involving a
      construction of Article 4510, Revised Civil Statutes,
      1925.
           Article 4510, Revised Civil Statutes, 1925, pro-
      vides:
                       "Any person shall be regarded as practicing
                  medicine within the meaning of this law:
                       "1. Who shall publicly orofess to be a physi-
                  sian or surgeon and shall,treat, or offer to
                  treat, any disease or disorder, mental or physical,
                  or any physical deformity or injury, by any
                  system or method, or to effect cures thereof;

                       “2.  Or who shall treat or offer to treat
                  any disease or disorder, mental or physical, or
                  any physical deformity or injury by any system
                  or method, or to affect cures thereof and charge
                  therefor directly or indirectly, money or other
                  compensation."
Texas State Board of %dical   Examiners, page 2 O-1298


          The first discussion of the subject at hand is
found in the case of Ex Parte COLLINS, 121 S.W. 501,
223 U.S. 2SS, where, at page 503 the court said:
          "As we understand relator in his brief and
    argument, he concedes that the statute is broad
    enough to cover his offense, but that the con-
    stitutional provision just cited limits the
    power of the Legislature to the regulation of
    the ?ract,ice of medicine, and that osteopathy
    is not practicing medicine. The Constitution,
    when it demands the regulation of the practice
    of medicine, was not attempting to say that the
    Legislature was limited to any mode or method
    of healing in order to regulate it; but the
    word 'medicine' used in the Constitution means
    the art of healing by whatever .scientific'or
    supposedly scientific method may be used. It
    means the art of preventing, curing, or allevia-
    ting diseases, and remedying, as far as possi-
    ble results of violence and accident. It
    further.means something which is supposed to
    possess, or some method which is supposed to
    poksess,  curative power; but if this definition
    $f medicine is not correct, as stated in the
    Constitution, yet there is no linitation upon
    the power of the Legislature is said provision
    of the Constitution which inhibits the Legisla-
    ture of this state under its police power to
    pfevent any one practicing any species or char-
    acter of remedy to cure any real or supposed
    ill that the body has or is subject to for pay.
    Acts with somewhat similar provisions to the
    act of the Thirtieth Legislature now under
    consideration were held constitutional by the
    Supreme Court of this state in the case of
    Dowdell v. 1% Bride, 92 Tex. 239, 47 S.W: 524;
    also by this court in the case of Logan v.
    State,5 Tex. App. 306. So we hold that oste-
    opathy is one of the methods of curing the ills
    to which human flesh is heir, and is one
    of the methods of curing covered by the act of
    the lhirtieth .Legislature. In other words, in
    order for one in this state to practice osteopathy
Texas State Board of i*ledical
                             Examiners, page 3   O-1298


    for pay, he must secure a license, as provided
    for by the act of the Thirtieth Legislature.
    ***w

          It is significant to note that Relator, a physi-
cian practicing osteopathy in El Paso, Texas, specifi-
cally urged that the practice of osteopathy is not prac-
ticing medicine. The court rejected this contention.
     Thereafter, the court in the case of Newman vs.
State, 124, S.W. 956, held likewise, and construed the
opinion in Ex Parte COLLINS, supra, as follows:
         "We there held that the word 'medicine,' as
    used in the Constitution, embraced the art of
    healing, by whatever scientific or supposedly
    scientific method, the art of preventing, cur-
    ing, or alleviating diseases, and remedying as
    far as possible results of violence and accident,
    and that it was broad enough to include any
    method that was supposed to posses curative
    power, and authorized the passage of the act in
    question requiring physicians and surgeons, in-
    cluding osteopaths, to obtain a license before
    engaging in the practice of their profession.!*
          Later in the case of COLLINES vs. STATE, 152    S.W.
at p. 1049, the court further said:
         "The main contention of appellant seems to
    be that it was incumbent upon the state to prove
    that he practiced, either generally or on this
    particular patient, by some particular 'system
    or method,' and, as the state had not so proven
    that he practiced by some particular 'system or
    method,' that therefore his conviction was er-
    roneous..' riedo not so understand the statute.
    It is not incumbent upon the state to show that
    his practice was by any system or method, but
    simply aud solely that he treated a disease or
    disorder, mental or physical, and charged there-
    for, whether that treiitnentwas by any system
    or method or not. In other words, the law, as
    we understand it, does not permit any one to
Texas State aoard of Medical Examiners, page 4 O-129$


    treat any disease or disorder and charge there-
    for, without first getting a license or a veri-
    fication license and having it properly registered
    in the district clerk's office of his residence,
    whatever his method or system of treatment,
    whether he has any method or system or Ilot.'$his
    act of the Legislature has many tiinesbeen before
    this court and construed, and as we understand
    their trend, if not direct holding, all of the
    decisions have been to the above affect. Sea
    Milling v. State, 150 S.;J.435; Stiles v. State,
    148 S.W. 326; Ex parte Collins, 57 Tex. Cr. R. 2,
    121 S.W. 501; Collins v. State, 223 U.>. 288,
    32 Sup. Ct. 286, 56 L. Ed. 439; Singh v. State,
    146 S.W. $91; Germany v. State, 62 Tex. Cr. R.
    276 R. 157, 136 S.W. 786; Newman v. State, 58
    Tex. Cr. R. 223, 124 S.rJ.956."
         Finally, we quote from Mr.Justice Stone of the
U.S. Supreme bourt, speaking in the case of Hayman v.
City of Galveston 47 upreme Court, 363, 273 U.S. 414,
71 L Ed 714 as'follzws:
     l   *    1




         "Under the Texas bonstitution and Statutes,
    any one who shall 'offer to treat any disease
    or disorder, mental or physical, or any physical
    deformity or injury, by any system or method or
    to effect cures thereof' is a physician and may
    be admitted to ractice within the state."
          The foregoing cases represent the construction
of Article 4510, supra, by our courts. The practice
of osteopathy has consistently been held to be iriithin
the phrase "the practice of medicine."
          We trust this answers your inquiries satisfacto-
rily, and we remain
                                    Yours very truly
                               ATTORNEY GENERAL OF TFX.iS

                               BY         Wm- J. Fanning
                                               Assistant
WmJF:ob/PAM
APPROVED SEP l$, 1939
GERALD C. MANN                 APPROVED, OPINION COMMITTEE
ATTORNEY GENERAL OF TEXAS      BY BviB,CHAIRMAN
