               E   ,~~-~ToRNEY            GENERAL
                         OF%-EXAS




                         December   29,   1971



Hon. Jack Burton, O.D.        Opinion No. M- 1029
Chairman
Texas Optometry Board         Re:   Construction of Article
603 West 13,th Street               4552-5.09, Vernon's Civil
Austin, Texas 78701                 Statutes (the Texas Optometry
                                    Act), relating to price adver-
Dear Dr. Burton:                    tising by optometrists.

          Your recent letter requesting the opinion of this
office concerning the referenced matter states as follows:

          "The Texas Dptometry Board respectfully
     submits the attached Board Interpretation of
     Section 5.09 of the Texas Optometry Act for
     an Attorney General's Opinion as to its
     validity."

          Attached to your letter, and styled "Board Interpre-
tation Number Six", is the following:

           "It is the interpretation of this Board
     that the Texas Legislature by the enactment of
     Section 5.09 of the Texas Optometry Law pro-
     hibits price advertising by an optometrist
     whether it be specific or fixed prices or by
     phrase or slogan such as 'economical price',
     'one low price', 'popular price' or any other
     terms or phrases making reference to price."

          Article 4552-5.0,9, Vernon's Civil Statutes, which is
the portion of the Texas Optometry Act at issue in your request,
provides as follows:

          "(a) No optometrist shall publish or dis-
     play, or knowingly cause or permit to be published
     or displayed by newspaper, radio, television,

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Hon. Jack Burton, page 2        (M-1029)



    window display; poster, sign, billboard, or any
    other advertising media, any statement or adver-
    tisement of any price offered or charqed by him
    for any ophthalmic services or materials, or any
    statement or advertisement concerning ophthalmic
    lenses, frames, eyeglasses, 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, gifts,
    or any statements or advertisements of a similar
    nature, import, or meaning.

          "(b) This section shall not operate to pro-
     hibit optometrists who also own, aerate, or manage
     a dispensing opticianry from advertising in any
     manner permitted under any section of this bill so
     long as such advertising is done in the name of the
     dispensing opticianry and not in the name of the
     optometrist in his professional capacity."  (Emphasis
     added)

          The basic issue involved in your request is whether
Subsection (a) of Section 5.09, supra, prohibits any and all
price advertising by an optometrist, or whether that Section
only prohibits price advertising which is fraudulent, deceitful,
or misleading.

          Through your Board Interpretation Number Six, quoted
supra, your Board,has indicated that it adheres to the former
construction of Section 5.09.

          The interpretation of Section 5.09 rendered by your
Board is entitled to great weight, as

           "The courts will ordinarily adopt and uphold
     a construction placed on a statute by an executive
     officer or department charged with its administration,
     if the statute is ambiguous or uncertain, and if the
     construction so given it is reasonable.   In other
     words, the judiciary will adhere to an executive or
     departmental construction of an ambiguous statute
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Hon Jack Burton, page 3            (M-1029)



     unless it is clearly  erroneous or unsound, or
     unless it will result in serious hardship or
     injustice, though the court might otherwise
     have been inclined to place a different con-
     struction on the act.

          "The rule above stated is particularly
     applicable to an administrative construction
     of long standing, where valuable interests or
     rights have been acquired or contracts have
     been made., or where's law that has been uni-
     formly construed by those charged with its
     enforcement has been reenacted without a change
     of language. . . .' 53 Tex;‘Jcr;;:2d 259-62, Statutes,
     Sec.   177.

          See also Armco Steel Corp. v. Texas Employment Com'n.
386 S.W.2d 894 (Tex.Civ.App. 1965, error ref. n.r.e.); United
States v. 525 Company, 342 F2d 759 (5th Cir. 1965).

          It is helpful to examine the background and legislative
history of Article 4552-5.09 in order to ascertain whether the
Legislature, in enacting that Article in 1969, intended to effect
a change in the prior law concerning price advertising by optom-
etrists. The precursor of Article 4552-5.09 was Article 4565g,
enacted in 1957, which provided in part, as follows:
            I#
                 .It shall be unlawful for any person,
                     .   .


     firm or corporation in this state . . . to publish
     . . . any statement or advertisement concerning
     ophthalmic lenses, frames, eyeglasses, spectacles,
     or parts thereof which is fraudulent, deceitful,
     misleading, or which in any manner whatsoever tends
     to create a misleading impression, including state-
     ments or advertisements of bait, discount, premiums,
     price, gifts, or any statements or advertisements of
     a similar  nature, import or meaning . . . 0

          Shortly after the enactment of Article 45659, supra,'
the Supreme Court of Texas had occasion to construe the meaning
of the above-quoted provisions in the case of Shannon v. Rogers,

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Hon. Jack Burton, page 4        (M-1029)



159 Tex. 29, 314 S.W.2d 810 (1958). and held that Article 4565g
prohibited only misleading price advertising.  In so holding,
the Supreme Court stated:

           "In this behalf, it is the opinion of the
     Court that the Act must be construed as pro-
     hibiting only such price advertising as is mis-
     leading. Such is clearly the sense of those
     more general words of the Act immediately pre-
     ceding the clause, 'including . . . advertisements
     of : . . price . . . ': and this clause, it is
     believed, being subordinate to the general language,
     is at least reasonably susceptible of the construc-
     tion of merely mentioning, for greater certainty,
     certain particular aspects of advertising, which,
     if misleading, would fall within the scope of the
     general language. This interpretation is felt to
     be strongly supported by the language of the caption,
     which clearly refers only to statements that are
     misleading, and, where interpretation is required,
     may properly be looked to as evidence of the legia-
     lative intent. The interpretation is believed to
     be supported also by the consideration that, had
     the legislature intended such a drastic prohibition
     as one against all price advertising, it would nor-
     mally have used language more positively evidencing
     its intent. . . .II 159 Tex. at 46-37, 314 S. W.2d
     at 815-16.

          An analysis of Section 5.09, bearing in mind the
wording of Article 4565g and the reasoning of the Shannon case,
supra, indicates that the Legislature intended that the Section
was to make at least three distinct prohibitions:   (1) the
prohibition of an optometrist's publishing or displaying any
statement or advertisement of any price offered or charged by
him for any ophthalmic services or materials:   (2) the prohi-
bition of an optometrist's making any statement or advertise-
ment concerning ophthalmic lenses, or materials of like ilk,
which is fraudulent, deceitful, or misleading: and (3) the
prohibition of an optometrist's making any statement or adver-
tisement which tends to create a misleading impression, includ-
ing statements of bait, discounts, premiums, gifts, et cetera.
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Hon. Jack Burton, page 5       (M-1029)



          We, therefore, hold that the Legislature, in enacting
Section 5.09 and changing its language concerning price adver-
tising from that found in Article 4565g, supra, intended to
prohibit all price advertising by an optometrist, and that the
Legislatuzdid   not intend that only misleading price advertis-
ing was to be circumscribed by the scope of Section 5.09.

          In support of this holding, we are mindful of your
Board's interpretation of Section 5.09 for the past two years.
We must presume that the Legislature, with that interpretation
before it, failed to change it at the 1971 legislative session
and thus *is in accord with your construction. Your interpreta-
tion, as pointed out hereinabove, is entitled to great weight,
and our courts will not set the same aside unless it is clearly
erroneous or unsound or results in serious hardship or injustice,
none of which appears.

          Our holding is also supported when Article 774, Texas
Penal Code, is read in consonance with Section 5.09. That Article,
relating to the prohibition directed against members of various
professions soliciting patronage (including optometrists), pro-
vides as follows:

          "The preceding Article shall not be construed
     to prohibit the inserting in a newspaper of any
     advertisement of such person's business, profession
     and place of business, or from advertising by hand-
     bills and paying for services in distributing same."

          It is apposite to note that Article 174 makes no mention
of, nor does it sanction, price advertising.

          The highest courts of our sister states have construed
similar statutes regulating price advertising by optometrists,
and have held that such statutes prohibited all price advertising
whether such prices are advertised in fixed amounts, or by such
terms as "economical price", "one low price", "popular prices",
or other terms of similar import. See, e.g., Donahue v. Andrews.
47 P.2d 940 (Ore.Sup. 1935); Bedno v. Fast, 95 N. W. 2d 396 (Wis.
Sup.), cert. denied, 360 U.S. 931 (1959); Michon v. Louisiana State
Board of Optometry Examiners, 121 So.Zd 565 (La-Sup. 1960); Akin v.

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Hon. Jack Burton, page 6        (M-1029)



Louisiana State Board of Optometry Examiners, 150 So.2d 807
(La.Sup. 1963); Louisiana State Board of Optometry Examiners
v. Pearle optical of Alexandria, 177 So.2d 164 (La.Sup. 1965).

           It is, of course, manifest that a state legislature
may constitutionally regulate advertising by a professional
group, and especially one in the field of public health. Kee
v. Baber, 157 Tex. 387. 303 S.W.2d 376 (1957). Abelson's Inc.
v. New Jersey State Board of Optometry, 75 A.2d 867 (N.J.Sup.
1950); Semlar v. Oreqon State Board, 294 U.S. 608 (1935): Head
;,                                              374 U.S. 424
 (1963); Ritholz v. Indiana State Board of Reqistration & Exami-
nation, 45 F.Supp. 423 (D.Ind. 1937); Melton v. Carter, 164
S.W.Zd 453 (Ark.Sup. 1942); Baikin v. The Board of Optometry,
75 Cal.Rptr. 337 (Cal.Sup. 1969); Economy Optical Co. v. Kentucky
Board of Optometric Examiners, 310 S.W;'2d 783 (Ky.Sup. 1958):
State v. Rones, 67 So2d 99 (La.Sup. 1953): Commonwealth v. Ferris,
25 N.E.2d 378 (Mass. Sup. 1940): Seifert v. Buhl Optical Co., 268
N.W. 784 (Mich.Sup. 1936): New Mexico Board of Examiners in Optom-
etry v. Roberts, 370 P.2d 811 (N.M.Sup. 1962); Finley Strauss, Inc.
v. University of State of New York, 62 N.Y.S,2d 892 (N.Y.App.Div.
1946) : Springfield v. Hurst, 56 N.E.2d 185 (OhioSup. 1944); Ullom
v. Boehm,, 142 A.2d 19 (Pa.Sup. 1958); Ritholz v. Commonwealth, 35
SiE.2d 210 (Va.Sup. 1945); Ritholz v. Johnson, 17 S.W.Zd 590
 (Wis.Sup. 1945); Patterson Druq Company v. Kinqery, 305 F.Supp.
820 (W.D.Va. 1969);

          In view of the foregoing, you are advised that Section
5.09 of the Texas Optometry Act prohibits all price advertising
by an optometrist, without regard to whether such price adver-
tising is misleading, and that the Section also prohibits price
advertising by means of non-specific or non-fixed slogans such as
"economical price", "one low price", "popular prices", or other
terms of similar import.

                           SUMMARY
                           ---_--_

          Article 4552-5.09, Vernon's Civil Statutes
     (the Texas Optometry Act), prohibits all price
     advertising by optometrists, regardless of whether

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Hon. Jack Burton, page 7          (M-1029)



     such price advertising is misleading, and also
     prohibits the advertising of prices by such non-
     specific slogans such as "economical price",
     "one low price", "popular prices", or other terms
     of similar import.

                                         truly yours,




Prepared by Austin C. Bray, Jr.
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Robert Giddings
John Banks
Bob Gauss
Bob Lattimore

SAM MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLAWHITE
First Assistant




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