                                         The Attorney           General of Texas

                                                            August 5, 1982
MARK WHITE
Attorney General


                                        Mr. William S. Nail                     Opinion No. ?lW-501
Supreme      Court Building             Executive Director
P. 0. Box 12546
                                        Texas State Board of Dental Examiners   Re:    Constitutionality of
Austin,    TX. 76711. 2548
51214752501
                                        411 West 13th Street, Suite 503         Dental Practice Act provision
Telex    9101874.1367                   Austin, Texas   78701                   relating to solicitation
Telecopier     5121475.0266
                                        Dear Mr. Nail:
1607 Main St., Suite 1400
Dallas,   TX. 75201.4709                     You have requested our opinion regarding the constitutionality of
2141742-6944                            that provision of the Dental Practice Act, article 45488, V.T.C.S.,
                                        which relates to solicitation. Specifically, you ask whether the
                                        following provision of the statute is constitutional:
4624 Alberta      Ave., Suite     160
El Paso. TX.      79905-2793
9151533-3464                                     It shall be unlawful for any person, firm, or
                                                 corporation to engage in or be guilty of any
                                                 unprofessional conduct pertaining to dentistry
1220 Dallas Ave.. Suite          202
                                                 directly or     indirectly.   Any  unprofessional
Houston.     TX. 77002-6966
7131650-0666
                                                 conduct, as used herein, means and includes any
                                                 one or more of the following acts:

606 Broadway,        Suite 312                       ....
Lubbock,  TX.       79401-3479
6061747-5236
                                                    (2)  soliciting dental business by means of
                                                 verbal communication, in person or otherwise,
4309 N. Tenth. Suite B                           directed to an individual or group of less than
McAHen,  TX. 78501-1665                          five individuals, which is primarily for the
5121662-4547                                     purpose of attracting the patronage of such
                                                 individual or group to a particular practice of
200 Main Plaza. Suite 400                        dentistry.
San Antonio,  TX. 76205.2797
5121225.4191                            "Verbal" in common usage means spoken or oral cormnunication. Black's
                                        Law Dictionary 1397 (5th ed. 1979); see also Pyramid Drilling Company
 An Equal      OpportunityI
                                        v. Howell, 173 S.W.2d 250, 253 (Tex. Civ. App. - Texarkana 1943, writ
 Affirmative     Action     Employer    ref'd w.o.m).

                                             In Virginia Pharmacy Board v. Virginia Consumers Council, 425
                                        U.S. 748 (1976), the United States Supreme Court issued the first of a
                                        series of decisions striking down state prohibitions on professional
                                        advertising. In subsequent decisions, the Court upheld statutory
                                        restrictions on the time, place and manner of advertising by
                                        professionals, provided that the restrictions were:      made without
                                        reference to the content of the material, served a significant




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Mr. William S. Nail - Page 2   (MW-501)




governmental interest, and left open ample alternative channels for
the communication of the information. See Bates v. State Bar of
Arizona, 433 U.S. 350 (1977); Ohralik v. Ohio State Bar Association,
436 U.S. 447 (1978); Friedman v. Rogers, 440 U.S. 1 (1979). See also
In the Matter of R.M.J.. 50 U.S.L.W. 4185 (1982).

     In Ohralik, supra, the Court specifically upheld a state
prohibition on the solicitation of business by attorneys through
direct, in-person communication. The Court noted that:

          in-person solicitation may exert pressure and
          often demands an immediate response, without
          providing an opportunity for comparison or
          reflection.

Its:

          aim and effect... may be to provide a one-sided
          presentation and to encourage speedy and perhaps
          uninformed decisionmaking.

436 U.S. at 457.

     The Court observed that the disciplinary rules at issue did not
prevent the appellant from "communicating information to these young
women about their legal rights and the prospects of obtaining a
monetary recovery, or from recommending that they obtain counsel."
They merely prevented him from using the information as bait "with
which to obtain an agreement to represent them for a fee." Id. at
458. According to the Court, the rules acted merely to promote a
"compelling" state interest, that of preventing "those aspects of
solicitation that involve fraud, undue influence, intimidation,
overreaching and other forms of 'vexatious conduct."' -Id. at 462.

     To the extent that subsection (2) of article 4548g merely enacts
the criteria set forth in Ohralik, we believe it is constitutional.
Since we are obliged to construe every statute in such a way that it
will meet constitutional standards, it is our opinion that subsection
(2)  is, on its face, constitutional insofar as it prevents "those
aspects of solicitation that involve fraud, undue influence,
intimidation, overreaching and other forms of 'vexatious conduct."'

     You also ask whether the prohibitions of subsection (2) are in
conflict with section l(b) of article 4548f, V.T.C.S., which provides:

          The Board may not adopt rules restricting
          competitive bidding or advertising by a person
          regulated by the Board except to prohibit false,
          misleading, or deceptive practices by the person.




                               p. 1805
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        Mr. William S. Nail - Page 3    (MW-501)




        No conflict exists between section l(b) of article 4548f and
        subsection (2) of article 4548g, because section l(b) prevents the
        board, not the legislature, from adopting rules restricting
        advertising.

             Finally, you ask whether the following acts are contrary to the
        prohibition of article 4548g(2):

                     (1) a mass mail-out soliciting dental business
                  to 100 persons;

                     (2)  stuffing union envelopes with dental cards
                  or dental information;

                     (3) mail-out to all newcomers to a city; and

                     (4) passing out dental leaflets to shoppers in
                  a mall.

        Subsection (2) prohibits verbal solicitation on an individual or small
        group basis. If a dentist were to distribute dental leaflets to
        shoppers in a mall, he would probably be in contact with fewer than
        five persons in any particular instance. If, however, he merely
        distributed the leaflets, without comment, he would not be in
        violation of subsection (2) because the element of "verbal
        communication" would be missing., In addition, since the leaflet might
        merely furnish dental information, it is clear that not every
        distribution of    dental leaflets would necessarily constitute
        "soliciting dental business."

             On the basis of the limited facts you have furnished, we cannot
        determine whether the distribution of dental leaflets to shoppers in a
        mall would violate subsection (2). None of the other three fact
        situations would appear to contravene that prohibition.

                                       SUMMARY

                    The provision of the Dental Practice Act,
                 article  4548g, V.T.C.S., which       relates to
                 solicitation is constitutional on its face.




                                                   MARK      WHITE
                                                   Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General




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Mr. William S. Nail - Page 4   (Mw-501)




RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
George Warner




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