                 THE       ATTORNEY               GENERAL
                                OF      -XAS
                               AUSTIN     1% TEXAS

  WVILI. WILSON
ATFORNEY    GENERAL

                                        July 25, 1960

           Mr. Carl C. Hardin, Jr.
           Executive Secretary
           Texas State Board of Dental
            ?Zxaminers
           Austin, Texas
                                        Opinion No. w-893
                                        Re:    Does the Texas State Board
                                               of Dental Examiners have
                                               the authority to prohibit
                                               Dentists from advertising
                                               In telephone directories by
                                               ads similar to the follow-
                                               ing : "False Teeth & Repairs
           Dear Mr. Hardin:                    - One Day Service."
                  Your request for an opinion reads in part as
           follows:
                           "We have had several requests to
                      stop the directory advertising of sev-
                      eral dentists in metropolitan areas.
                      These ads are similar to the attached.
                           "!Ihlsdepartment will appreciate
                      your advising whether the attached is
                      in violation and can be stopped by
                      Board action."
                  The advertisement referred to in your request
           consists of a listing in the "yellow" section of a tele-
           phone directory in which the dentist has among other
           things put his name in boldface type in a border along
           with other Information, as follows:
                      "False Teeth & Repairs - One Day Service"
                  Article 752b of Vernon's Penal Code reads in part
           as follows:
                           "Article 752b.       Unprofessional conduct
                                                          -_




Mr. Carl C. Hardin, Jr., Page 2 (w-893)

           "It shall be unlawful for any
      person, firm, or corporation to
      engage in or be guilty of any un-
      professional conduct in the prac-
      tice of dentistry, directly or
      indirectly. Any 'unprofessional
      conduct,' as used herein, means
      and includes any one or more of
      the following acts, to wit:
            14
             . . .
           "(0) Advertising by means of a
      display advertisement, display signs
      or glaring light signs, electric or
      neon signs, or such signs containing
      as a part thereof the representation
      of a tooth, teeth, bridgework, plates
      of teeth or any portion of the human
      head, or using specimens of such in
      display, directing the attention of
      the public to any such person or per-
      sons engaged in the practice of
      dentistry; (Emphasis added)


       Article 752~ of Vernon's Penal Code provides for
the enforcement of Article 752b and reads in part as
follows:
            "Article 752~. Licenses, Refusing,
       Revoking, Cancelling, and Suspending of
            "Section 4. The State Board of Ben-
       tal Examiners shall, and It shall be
       their duty, and they are hereby authorized
       to revoke, cancel or suspend any license
       or licenses that may have been issued by
       such Board, if in the opinion of a major-
       ity of such Board, any person or persons
       to whom a license has been issued by said
       Board to practice dentistry in this State,
       shall have, after the issuance of such
       license, violated any of the provisions
       of the Statutes of the State of Texas re-
       lating to the practice of dentistry in
Mr. Carl C: Hardin, Jr., Page 3 (~-893)

       this State,~or any of the provisions
       of Chapter 7, Title 12 of the Penal
       Code of the,State of Texas, or any
       amendments that may hereafter be made
       thereto. All revocations, cancella-
       tions or suspensions of licenses by
       the Texas State Board of Dental Ex-
       aminers shall be made as hereinafter
       provided.


       P,riorto 1947 Section (o), of Article 752b did
not Include the first phrase (i.e., advertising by
means of a display advertisement). This phrase was
added to Section (0) by an amendment in 1947 follow-
ing the case of State Board of Dental Examiners v.
Blckham, 203 S.W. 2d 363 (no writ history), In which
the Court held that newspaper ads were not included
in the term "large display signs." On this point the
Court.said:
            "Courts cannot extend subdivision
       (o), which forbids advertising by means
       of 'large display signs,' to newspaper
       advertisements, The statute limiting
       'large display' to 'signs,' excludes
       'display ads.' 'Signs' are not 'ads.'
      ,It is unfortunate that the Texas Legls-
       lature limited such acts of advertising
       to 'signs,' instead of providing, as is
       the law of Missouri, Oregon, Wisconsin,
       and other States to include unlawful ad-
       vertising by means of ‘large display,'
       either by 'signs,' or 'ads,' without
       limitation as to where such advertisement
       shall be placed."
       "Display Advertising" as defined by Webster's
New International Dictionary is advertising intended
to attract by its combination of copy, border, white
space, illustration, etc. Webster further defines
display in reference to printing as making conspicuous
by large or prominent type or by varying the length of
lines.
       In view of the foregoing, It is our opinion that
the advertisment referred to in your request is a vio-
lation of Subdivision (0) of Article 752b, Vernon's
                                                            ---   .




Mr. Carl C. Hardin, Jr., Page 4 @W-893)

Penal Code. You are further advised that by virtue of
Article 752c, Vernon's Penal Code, the State Board of
Dental Examiners Is authorized to revoke, cancel or sus-
pend the license of any dentist found guilty of violating
Article 752b, Vernon's Penal Code.

                     SUMMARY
            Advertising in the "yellow" pages
            of a telephone directory by means
            of a display advertisement is a
            violation of Article 752b, Vernon's
            Penal Code. The State Board of Den-
            tal Examiners is authorized by Artl-
            cle 752~ to revoke, cancel or suspend
            the license of any dentist found guil-
            ty of violating Article 752b, Vernon's
            Penal Code,
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas



                                    Robert A. Rowland
                                    Assistant
RAR:mm
APPROVED:
OPINION COMMITTEE
Houghton Brownlee, Jr.
Robert T. Lewis
Thomas Burrus
Bob Eric Shannon
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
