Robert Bernstein, M.D.           Opinion No. JM-609
Commissioner       -
Texas Department of Realth       Re: Whether a self-employed massage
1100 West 49th Street            therapy instructor who supervises
Austin, Texas   78756            more than two apprentices conducts a
                                 massage therapy school for purposes
                                 of article 4512k. V.T.C.S., and
                                 related questions

Dear Dr. Bernstein:

     You have asked two questions concerning the T&as Department of
Health's authority to regulate massage therapists. You first ask
whether article 4512k. V.T.C.S., authorizes the Texas Department of
Flealth to enact a rule requiring a massage therapy instructor, who is
self-employed and supervises more than two apprentices-.to comply with
the department's requirements for a massage therapy school. Those
requirements are:

         5141.9 MASSAGE TRERAPY SCHOOLS RECOGNIZED BY THE
         DEPARTMENT.

            (a) Purpose. This section sets forth the
         guidelines by which a massage therapy school may
         be recognized by the department.

            (b) General. After January 1. 1986. the
         department shall recognize only those establish-
         ments or organizations which meet the following
         criteria as a massage therapy school:

                (1) Minimum standards for operation.

                    (A) Each school shall designate one
            parson as the director of the school who is
            responsible for     the   school program  and
            curriculum, the organization of classes, the
            maintenance of the     school facilities, the
            maintenance of proper administrative records,
            and all other procedures related to the
            administration of the school.




                             p. 2719
Dr. Robert Bernstein - Page 2            (34-609)




                    (B). All instructors of Swedish massage
            therapy technique in a recognized massage
            therapy school shall meet the definition of a
            massage therapy instructor as defined in $141.2
            of this title (relating to Definitions).

                     ('3 A   recognized   massage therapy
            school shall have written admission require-
            ments, tuition and fee schedules, a refund
            POliCY * a student conduct policy, conditions
            for dismissal and re-entrance, attendance
            requirements, curriculum and course require-
            ments which shall be made available to every
            apprentice/student and prospective appren-
            tice/student before registration.

                     (D) Each recognized massage therapy
             school shall keep on file and available for
             inspection by the department the following:

                                  (0     applications of apprentices1
                             students;

                                  (ii) attendance records;

                                  (iii) log   of    apprentice/student
                             hours; and

                                  (iv) academic      records    which
                             relate to grades.

                     03   A   recognized   massage   therapy
             school shall offer as a minimum the curriculum
             requirements as set forth in 5141.5 of this
             title (relating to Registration Requirements).

25 T.A.C. 1141.9 (1986).

     Article 4512k. V.T.C.S., provides in part:

             Sec. 1.          In this Act:

             .   .   .   .

             (2)  'Massage therapist' means an individual
          who practices or administers massage therapy to a
          patron of either gender for compensation. The
          term includes a therapeutic massage practitioner,
          maesaginist. massage technician, masseur. mas-
          *ewe, myo-therapist. or any derivation of those
          titles.



                                    p. 2720
Dr. Robert Bernstein - Page 3     (J-M-609)




             . . . .

             (4) ‘Massage establishment’ means any place of
          business in which massage therapy is practiced by
          a massage therapist.

                       Registration Requirements

             Sec.2     (a)   . . . .

             (b) An individual who registers under this Act
          must present evidence satisfactory to the board
          that the person:

             (1) has    satisfactorilv comuleted     massase
          therapy studies in a 250 hour, supervised course
          of instruction provided by a massage therapy
          instructor, by a massage therapy school recognized
          by the department, by a state approved educational
          institution, or by any combination of instructors
          or schools, in which 125 hours are dedicated to
          the study of Swedish massage therapy techniques,
          50 hours to the study of anatomy, 25 hours to the
          study of physiology, 25 hours to the study of
          hydrotherapy, five hours to the study of business
          practices and professional ethics standards, and
          20 hours to the study of health and hygiene;

             (2) is registered as a massage therapist in
          another state or country that has and maintains
          standards and requirements of practice and
          licensing or registration that substantially
          conform to those of this state, as determined by
          the department; or

             (3) has practiced massage therapy as a pro-
          fession for not less than five years in another
          state or country that does not have or maintain
          standards and requirements of practice and
          licensing or registration that substantially
          conform to those of this state, as determined by
          the department. (Emphasis added).

It is clear that sections l(2) and 2(b)(l) do not specifically require
a massage therapy instructor to conply with the department’s require-
ments for a massage therapy school, but the legislature has provided
that the department, through the Board of Health, may adopt rules
consistent with article 4512k which are necessary for the performance
of its duties under the statute. V.T.C.S. art. 4512k, 67(a).




                                p. 2721
Dr. Robert Bernstein - Page 4    (.I&609)




     A  rule promulgated by the department must be reasonable and
within the ambit of the statutory requirements. See, e.g.. Gerst v.
Oak Cliff Savings & Loan Association, 432 S.W.2d 702 (Tex. 1968);
State Board of Insurance v. Deffebach, 631 S.W.2d 794. 798 (Tex. Civ.
APP . - Austin 1982, writ ref’d c.r.e.). Section Z(b)(l) of article
4512k authorizes the department to “recognize” massage therapy
schools. The board has adopted regulations setting forth guldelines
by which these schools may be recognized (registered) by the
department. See 25 T.A.C. $141.9. These regulations, which became
effective beginning January 1, 1986, set minimum standards for the
administration and operation of these schools.        Id.  But these
regulations do uot make provisions governing self-exoyod      massage
therapy instructors who teach two or more apprentices.

     Section l(3) of article 4512k specifies that-one of the require-
ments of becoming a massage therapy instructor is to instruct one or
more apprentices in massage therapy. The statute does not specify
whether the instructor must teach at a school or an establishment. it
is reasonable to assume that a self-employed massage therapist may
teach one or more apprentices. A rule requiring the self-employed
instructor who is teaching more than two apprentices to comply with
the department’s requirements for a massage therapy school would
foreclose au option explicitly provided by the legislature. V.T.C.S.
art. 4512k. 12(b)(1). Section 2(b)(l) provides that a person seeking
registration by the board may receive all his instruction through
a school recognized by the department or by a “combination of
instructors or schools.” Id. Accordingly. we conclude that such a
rule promulgated by the department would be inconsistent with its
statutory authority. See, e.g., Bexar County Bail Bond Board v.
Deckard, 604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no writ).

     You also ask whether the department may promulgate a rule
requiring each massage establishment to include on all forms of
advertising the uame of the establishment as it appears ou the
registration certificate, aud the state registration number of each
massage therapist practicing in the establishment. The legislature
has enacted section 5 of article 4512k. V.T.C.S., which provides:

            Sec. 5.   (a) Each massage establishment nust
         post in plain sight the certificate of registra-
         tion of each massage therapist who practices in
         the massage establishment.

            (b) A person who is not registered under this
         Act may not use the word ‘massage’ on any m   or
         other form of advertising. (Emphasis added).

     The United States Supreme Court has held      that statutes and
regulations requiring mandatory disclosure of certain facts must be
reasonably related to the state’s interest in preventing deception oi
consumers. Zauderer V. Office of Disciplinary Counsel of the Suprrae



                                p. 2722
Dr. Robert Bernstein - Page 5      (JM-609)




Court of Ohio, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). A statute or
regulation which imposes unjustified or unduly burdensome disclosure
requirements might offend the First Amendment by chilliog protected
commercial speech. Id. We believe that section 5 is rationally
related to the legislative purpose of preventing the deception of
consumers seeking this type of service. See Bill Analysis to B.B. No.
2012, prepared for Eouse Committee on Business and Commerce. filed in
Bill File to E.B. No. 2012. Legislative Reference Library.

     Section 5 does not explicitly provide that this information be
placed in all forms of advertising about a massage establishment. We
believe that the legislature intended, by enacting section 5, to grant
the department implicit authority to regulate the advertising of
massage establishments. A rule, however, requiring that each massage
establishment include in all forms of advertising. the came as it
appesrs on the registration certificatr. and the state registration
number of each massage therapist practicing in the establishment may
be unreasonable. See Zauderer v. Office of Disciplinary Counsel of
the Supreme Court of Ohio, m;       cf. State Board of Insurance v.
Deffebach, 631 S.W.2d 794 (Tex. Civ. App. - Austin 1982, writ ref'd
n.r.e.) (regulation must be reasonable and within the statutory
authority). You have not submitted any proposed rule or specified the
kinds of advertising you have in mind, and as a result, we do not
reach specific examples.

                                SUMMARY

              The Texas Department of Realth is not authorized
         under article 4512k. V.T.C.S.. to promulgate a rule
         requiring a massage therapy instructor, who is self-
         employed and teaches more than two apprentices, to
         ;z;;    with its requirements for a massage therapy
               .

              The department is not authorized under sections
         5 and 7(a) of article 4512k. V.T.C.S., to promulgate
         a rule requiring each massage establishment to
         include in all forms of advertising, the name as it
         appears on the registration certificate, and the
         state registration number of each massage therapist
         practicing in the establishment, but it is empowered
         to reasonably regulate advertising.

                                           Very truly your


                                      Ll                 /ikit&
                                           JIM&TO,
                                           Attorney General of Texas




                            p. 2723
Dr. Robert Bernstein - Page 6     (34-609)




JACK HIGETOWER
First Assistant Attorney General

MARY KBLLER
Executive Assistant Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorr.eyGeneral




                                p. 2724
