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                    OFFICE      OF THE ATTORNEY       GENERAL OF TEXAS
                                             AUSTIN




          Honorable R. T. Weber, President
          Texas State Board of Dental Examiners
          Austin,  Texas

          Dear Sir:                          Opinion No. O-2743
                                             Re:   Validity   of forty-two
                                                   advertisements    by dentist
                                                   under Article    752b, Texas
                                                   Penal Code.

                       In compliance     with your request       of October 15, we
          have given careful      study to the volume prepared by you and
          submitted    to us containing      forty-two     separate   newspaper
          clippings    of advertisements      by dentists.       In our Opinion No.
          O-1992, copy of which is attached            hereto,   we construed    Ar-
          ticle   752b, Vernon's    Annotated Penal Code of Texas, which
          relates   to dental    advertisement.        In this opinion we shall
          not review the authorities         mentioned     in our Opinion No. O-
          1992, but shall merely apply the principles               announced in
          that opinion    to the various       sample advertisements       contained
          in the exhibits     submitted by you.

                        Exhibit    No.   1 reads   as follows:

                         "Dr.  W. W. Snider
                                 Dentist
                           Dublin,    Texas
                           Office   Phone 68       Res.   Phone 84”

                        We agree with you that Exhibit  1 is clearly    a pro-
          per type     of newspaper advertisement or professional    card in-
          sertion.

                        Exhibit     No. 2 which    contains   the names of two den-
          tists,    their   office     addresses   and phone numbers, is likewise
          proper.     Article      752, Vernon's    Annotated   Penal Code of Texas,
          expressly     provides     in part:
                         1' * * ** Provided,    however,    this shall not
                   prevent   two or more legally   qualified    dentists
.   .




        Honorable    R. T. Weber,     Page 2



              from practicing     dentistry   in the same offices
              as a firm,   pa,rtnership,    or as associates     in
              their  own names as stated in licenses         issued      to
              them. . . .”

                    Exhibit  No. 3 is apparently   an advertisement  of two
        dentists   operating  as a firm or partnership,    their names in
        the advertisement    appearing  as “Drs. Parker & Parker.”    We
        believe  such a combination    of names in an advertisement   is
        likewise   proper.

                    The advertisement       in Exhibit   No. 4 contains      the
        statement:      “Member Seguin Chamber of Commerce.”           While a
        statement   of such a nature contained         in an advertisement       of
        a dentist   may not be in accordance       with the highest       standard
        of ethics   of that profession,       we are unable to find any pro-
        vision   of Article      752b or other article    relating    to the prac-
        tice   of dentistry,      which prohibits   such a statement.        In view
        of the fact     that criminal    statutes   are strictly     construed,     we
        do not believe       that this advertisement     constitutes     a violation
        of Article    752b3, Penal Code.

                      The advertisement        in Exhibit    5 contains    the statement:
        “Emergency calls       after   office    hours answered promptly” which
        you state     “is considered      by the Board of Dental Examiners as
        being surplusage       and extraneous       matter foreign      to the intent
        of the Penal Code, Article            752a, and the concluding       paragraph
        of Article     752b, Acts 1937, 45th Legislature,             for in neither
        article    quoted is there any intimation            that a practitioner      may
        call attention      to his particular        ability   to answer the tele-
        phone promptly,      but the Act merely states           that he may list     his
        resident    number and address.”           We are unable to find any pro-
        hibition    in Article     752a to such a statement.           The concluding
        paragraph     of Article     752b to which you refer         reads as follows:

                     “Provided,    that any duly licensed     practitioner      of
              dentistry,     may publicly    announce by way of newspaper
              or professional      card that he is engaged in the prac-
              tice of dentistry,       giving his name, degree,      office
              location    where he is actually      engaged in practice,
              office    hours,  telephone    numbers and residence      address;
              and if he limits      his practi.ce   to a specialty     he may
              state same.”

                   In construing this          paragraph   of Article    752b we stated
        In our Opinion No. O-1992.
.




    Honorable   R   T. Weber,   Page 3



                 "Certainly    since this is a criminal    statute    and
          must be strictly      construed,  it would seem clear      that
          the dentist     could advertise   in any manner and with
          as much space as he desires        so long as his adver-
          tising   did not fall     under the prohibited   practices
          of the article      in question.

                 "We, therefore,   respectfully advise   that Article
          752b, Penal Code as amended, is valid and constitution-
          al and the proviso     at the end of said article   is per-
          missive   rather   than restrictive."   @mphasis   ours.)

                 In other words,    the last paragraph of Article         752b
    may not be made the basis for a criminal           prosecution    since said
    paragraph prohibits      no practice    whatsoever   but merely indicates
    the type of advertising      which a dentist     may employ without      vio-
    lating   any of the provisions       of the Act.    It is our opinion,
    therefore,     that Exhibit  5 does not constitute       a violation    of
    either    of the above mentioned articles.

               For the same reasons    as mentioned with reference      to
    Exhibit 5, we believe    that Exhibit   6 is not unlawful  by reason
    of the statement   in the advertisement     "office air condit1oned.s

              For the same reason,      we do not consider     Exhibit  7 as
    violating  the criminal   statutes   because  it contains    the phrase
    "Graduate Nurse Assistant;"      or Exhibit  8 because   it contains
    the phrase "X-Ray Equipped."

                  Exhibit   9 contains  the statement    "Dental X-Ray."     With
    regard to this exh1bj.t you ask the question:            "If it is found
    that this particular       dentist engaged in the general       practice
    of dentistry,     would this particular     insert   quoted above be in
    violati.on    of the law . . .?"     The only reference      to the adver-
    tising     of a specialty   by a dentist   contained   in the statutes
    is found in the last portion       of the last paragraph of Article
    752b, which reads:

               "And if    he limits   his   practice   to a specialty,
          he may state    same."

                As hereinbefore    stated,    this last paragraph      of Article
    752b is permissibe     and not restrictive      and therefore    cannot be
    made the basis    of a criminal    prosecution.     Accordingly,     it is
    our opinion   that Exhibit    9 does not constitute      a violation    of
    law.
Honorable      R. T. Weber,   Page 4



            For the same reasons as stated with reference            to
Exhibit   9, we believe    that the advertisement      in Exhibit    10
is not unlawful    by reason of containing        the phrase "Dentist
and X-Ray Work."      We have reached the same conclusion         with
reference   to Exhibit   11 which contains      the statement    "Complete
Line of X-Ray Work;"      Exhibit    12 which states "Special       Atten-
tion Given Plate Work;"        Exhibit  13 which states     "Doctor    of
Dental Surgery and General Dentistry"          as well as "X-Ray Diag-
nosis;"   Exhibit  15 which states     "Dentistry    -- Orthodontia     --
X-Ray;"    Exhibit   16 stating   "Dental Surgeon -- X-Ray and Flor-
ascopic   Work.V

            Exhibit   14 contains      the statement    "Dental Surgeon
and Mechanical    Dentistry.',     Of this you state:        "The Board of
Dental Examiners is at a loss to understand             the meaning of the
term 'Mechanical    Dentistry.'"        Conceding   that the term "Mechan-
ical Dentistry " does not have a well-recognized             meaning among
the dental profession      we do not believe       that it is "of a charac-
ter tending    to mislead     or deceive    the public"   within   the scope
of Section   (e) of Article      752b;    wherefore    we are of the opinion
that Exhibit    14 will not justify       criminal   action.

           The advertisement   in Exhibit     17 contains   the state-
ment "All Work Guaranteed;   Prices   Reasonable."      We believe    the
phrase "All Work Guaranteed"     is a violation     of Subsection   (j)
of Article  752b, which reads:

               "Advertising    to guarantee       any dental   services."

               The statement    "Prices    Reasonable" cannot       be construed,
we believe      to violate   Section    (h), which reads:

               "Advertising    bargains,   cut rates,      or special
      values     in dental    services   . . ."

           We agree with you that Exhibits           18, 19, 20 and 21
are all proper and authorized        insertions    to indicate,      in the
case of Exhibit    18, the opening      of an office     by a dentist;     in
Exhibit  19, a temporary location        of dentist's      office;   in Exhibit
20, a contemplated    location    of a dentist's      office     in the near
future; and in Exhibit      21, the association       of another dentist
with an established    practitioner.

               Exhibit   22 reads   as follows:

               "Dr. Buchanan
                   Dentist
                Dr. Dixon's  Location
                   Lampasas, Texas."
Honorable   R. T. Weber,     Page 5



             With reference    to this advertisement         you ask whether
it is permissible      for a dentist    to refer     to the fact that he
is now occupying      the premises for offices        recently     held by
another dentist     for an indefinite      length of time or whether
the reference     to the previous    practitioner’s       location     must be
dropped after     a reasonable   time has elapsed and the public
should be informed of the new party’s           occupying      such premises?
We are unable to find any provision           of the penal statutes        wh&ch
forbids   a dentist    to state that he is occupying           the premises    or
offices   formerly    occupied  by another dentist        under any circum-
stances,   wherefore    we must conclude      that no limitation        on the
time during which such an advertisement             may be properly      run can
be found in the statutes.

             Exhibit   23 presents   the advertisement     by an optometrist
announcing     that he “has returned     to practice   in Fort Stockton,
office   with Dr. E. A. Roberson,       Dentist.”    We do not believe
this advertisement      constitutes    a violation   of law by the dentist.
Moreover,    in a city   the size of Fort Stockton,       the public    might
be better    advised   of the location    of the optometristIs     office
by referring     to the off ice of Dr. E. A. Roberson,       than if the
street   address were given.

              Exhibit   24 contains  the statement    “Formerly Mayo Dental
Clinic.”      As stated   in the preceding   paragraph we know of no pro-
visiorsin     the statute   which prohibit    reference    to the dentist
formerly     occupying   the premises now occupied      by the advertising
practitioner.

            Exhibit    25 reads   as follows:

            “Dr. J. H. Williamson,   Dentist
            Kray La,boratory  and Dental Diagnosis
            Pyorrhea Treat.ment, Extraction,   Artif        lcial   Teeth.

              “How often to you see your DENTIST? Get the
      watchful    help of your DENTIST before    serious trouble
      occurs.     Neglect is dangerous  and costly.”

             “Kray” is obviously    a misprint   for “X-ray” in this
advertisement,     and such misprint   would not subject    the dentist
to prosecution     for false or misleading     advertising.

             As stated    In our discussion     of Exhibit    9, we do not
consider    the statement    of several    specialties     as constituting
a violation    of Article    752b.   Nor are we able to find any pro-
visions    Of the statutes    which forbids     advertising    by means Of
Honorable       R. T. Weber,    Page 6



a dissertation          urging readers   to see   their   dentists   such as
is contained       in    this exhibit.

           We do not believe    that the advertisement   contained
in Exhibit  26 wherein   the doctor’s   name appears in bold and
black-face  type constitutes   a violation   of the Act.   As stated
in our Opinion No. O-1992:

              “It would seem clear    that the dentist    could
       advertise   in any manner and with as much space as
       he desires    so long as his advertising   did not fall
       under the prohibited    practices   of the article     in
       question.”

             Exhibit   27 contains    the statement   “Credit Dentist.”
This statement     can certainly     not be construed   as coming within
the prohibitions      of Sections    (g) and (h) of Article    752b against
advertising    comparative     values or bargains,    and consequently   we
believe    the same is not unlawful.

          As to the statement    “Has returned  to Austin and Re-
Opened His Office”  in this exhibit,   we can find no evil  therein
which is prohibited  by statute.

                Exhibit   28 contai.ns a picture,   presumably   of the
practitioner,        we do not believe     that this violates  any penal
provision,       particularly    not Section   (o), which reads:

              “Advertising     by means of large display         signs,
       or glaring     light   signs,    electric    or neon, or such
       signs containing       as a part thereof        the repreaenta-
       tion of a tooth,       teeth,    bridge work, plates      of teeth,
       or any portion       of the human head, or using specimens
       of such in display,        d-irecting     the attention   of the
       public   to any such person or persons            engaged in the
       practice   of dentistry.”

              We can not extend subdivision          (0) which forbids    ad-
vertising     by means of “large      display    signs,  or glaring   light
signs,    electric    or neon, or such signs containing         as a part
thereof     the representation      of a toot.h, teeth,    bridge work,
plates    of teeth or any portion        of the human head,” etc.        “Large
display     signs” mentioned in this subdivision,          when considered
in connection      with the other things named in the subdivision
must be construed       a.a something other than newspaper advertise-
ments.     In legal    construction    of statutes,     words -- like people
-- are known by their associates.             And when the term “Display
signs” is considered        in this light,     it means signs such as the
others mentioned       in that connection,       and newspaper ads are not
included.
Honorable       R. T. Weber,       Page 7



                Exhibit     29 contains     the following    statements:

             “Good Plates Need Not Be Expensive
            Must Fit -- Improve Your Appearance                --   Be
       Light In Weight -- Odorless  -- Durable

                “Easy     Credit   Terms .I’

            This advertisement     appears to have been skillfully
written   with the provisions     of Article    752b in mind.       The
statement    “Good Plates  Need Not Be Expensive”         is so phrased
as not to come within     subsection    (h) forbidding      advertising
bargains,    etc.   “Must Fit,”    etc.  can hardly be construed        as
a guarantee     so as to come within    subsection    (j).

                Exhibits    30, 31, 32 and 33 do not violate   the stat-
utes   for     reasons   set out in our discussion  of Exhibit   28.

                 We do not believe     Exhibit   34 violates   the    rohibition
against       advertising    bargains   contained   in Section    (h P because
of the       statement    “A Little   Cash and A Small Amount Weekly.”

            For reasons heretofore             discussed    we can find    no objec-
tion   to Exhibits  35 and 36.

             Exhibit  37 contains   the statement:     “A small amount
down and a small amount weekly .I’ Since no representation          is
made regarding     the total  cost of d.ental service,    this statement
cannot be construed     as a bargain.    We find no vice in the ad-
vertisement.

            Exhibit    38 contains      the statement:     “I have always
tried   to make as good plates        as humanly possible     and at the
same time keep my prices        within    the reach of the masses.”      It
is our opinion     that this quotation       violates   subsection   (d)
which forbids    “statements     as to skill”      as well as subsection
(h),  since  by  clear   l.mplication     it advertises   bargains.

          Exhlbit    39 is bad in that the following       quotation
therefrom may be construed        as “a statement as to the skill       or
method of practicing      dentistry,”   at least by inference,     for-
bidden in Section    (d):

              “Not so many years back the science      of
       dentistry   had not progressed      to where it could
       rebuild   sunken cheeks,     almost eliminate  wrinkles
       acd make plates     that fit,   look good, are light
       in weight,   odorless   and durable,    as it can today.”
Honorable   R. T. Weber,    Page 8



            The claim of superior     services    is adroitly     made,
but whatever    the phrasing    the obvious meaning intended,         and
no doubt conveyed,      is that Dr. Mayo is prepared        to give and
will give to the public      that progressive     dentistry    that will
“rebuild   sunken cheeks,    almost eliminate     wrinkles    and make
plates   that fit,   look good, are light      in weight,    odorless
and durable.”      In other words, laying aside all modesty,           his
claim is that his is the place to obtain          “modern dentistry.”

            Exhibit  40 is clearly      a violation     of Section  (h)
of Article    752b by reason of the statement          “Volume Business
-- Lowest Prices”     and other material        which may be construed
as a violation    of Section    (h), forbidding     “ad.vertising  bargains,
cut rates or special     values.

            The same may be said of Exh%bit 41 which contains
the statement     “Good Plates Need Not Be Expensive”           and “We have
always tried    to make as good plates         as humanly possible     and at
the same time keep our prices          within    the reach of the masses”
-- “Easy Payments $10 -- $15 -- $20.”              Likewise   the statement
in Exhibit   41 “Dental Laboratories”          is a violation    of Section
(9) which forbids      “advertising     to the public     any commercial
dental  laboratory    or dental     c1ini.c .”

             Exhibit   42 clearly    contains     statements    in violation
of Section     (h) forbidding    bargains.      Some of these are:         “I
have ever tried and shall continue           to try to give the people
of Texas good but inexpensive         dentistry;”        “Remember:    Good
dentistry    need not be expensive.”         It is not enough to author-
ize a conviction      that a dentist’s     advertisement      violates     the
spirit    of the Penal Code -- it must do more -- it must violate
the plain    import of the language of the statute.              We think this
ad of Dr. Mayo does both.         Undoubtedly,       throughout    its length
it violates     the spirit    of the statute,      but specifically      it
violates    the plain    import of its language with respect           to
“superior    service”    and the offering      of a “bargain.”

            In commenting upon the forty-two         exhibits   of sample
dental advertisements      which you have submitted       to us, we have
attempted   to give you our opinion        of whether or not a criminal
prosecution   under Article     752b or any other article       relating
to dental advertising      would be sustained     when based on each
one of these forty-two       advertisements.     We are not and cannot
be concerned    in this opinion with the desirability          or propriety
of a particular    advort.iscment     judgod on the basis     of the ac-
cepted canons of ethics       of the dental profession.        Our opinion
.’   .




         Honorable   R. T. Weber,    Page 9



         giving   approval   or disapproval  of these advertisements      is
         based solely    upon the language of the statutes     prescribing
         unlawful   advertisement    and the decisions of the court ap-
         plicable   thereto.

                    We hope that this     lengthy dissertation     may be of
         some help to you in carrying       out the official   duties  of the
         Texas State Board of Dental      Examiners.

                                                      Yours   very   truly

                                                 ATTORNEYGENERALOF TEXAS



                                                              Walter     R. Koch
                                                                       Assistant

         WRK:RS
         ENCLOSURE


         APPROVEDFEB. 3,     19'41                       THIS OPINION

         GERALD C. MANN,                           CONSIDEREDAND APPROVED

         ATTORNEY.GENERALOF TEXAS                   IN LIMITED CONFERENCE
