                 THE     ATIJTORNEY          GENERAL
                              OF   TEXAS

GERALD C. MANN                AUSTXN   ,,.-l'~xan

ATTOfZNEY   G-ENIZRAX.




  Honorable T, J. Crowe, Secretary
  Texas State Board of Medical Examiners
  918 Mercantile Building
  Dallas, Texas
  Dear Sir:                        Opinion Nod o-2621
                                   Re: Requirements of complaint, infor-
                                        mation and charge of court in
                                        case of alleged violation of med-
                                        ical practice Act.
   We have carefully considered your letter of recent date requesting
   our advice relative to the above subject.
  You submit the form used by your organization in preparing complaint
  and information charging alleged violation of the medical practice
  Act, and desire our opinion as to whether same may be changed to
  eliminate the use of the phrase "practice of medicine", which you
  state in certain cases creates confusion in the minds of jurors
  sitting in said cases, the language of the complaint, information
  and charge of the court impelling the belief that one practices
  medicine only when he prescribes drugs. This, you infer, places a
  greater burden upon the State than the law contemplates.
  The statutes condemning the unlawful practice of medicine, with
  which we are here concerned, are as follows:
        Article 739.     "AUTHORITY TO PRACTICE TO BE REGISTKRED.
        "It shall be unlawful for any one to practice medicine, in
        any of its branches, upon human beings within the limits of
        this State, who has not registered in the District Clerk's
        office of every County in which he may reside, and in each
        and every county in which he may maintain an office or may
        designate a place for meeting, advising with, treating in'
        any manner‘,or prescribing for patients, the certificate
        evidencing his right to practice medicine, as issued to him
        by the Texas State Board of Medical Examiners, together with
        his age, post office address, place of birth, name of medical
        college from which he graduated, and date of graduation, sub-
        scribed and verified by oath, which, if wilfully false, shall
        subject the affiant to conviction and punishment for false
                                                                 .     .




Honorable T. J. Crowe, page 2     O-2621


     swearing, as provided by law. The fact of such oath and re-
     cord shall be endorsed by the District Clerk upon the certifi-
     cate. The holder of every such certificate must have the same
     recorded upon each change of residence to anothar.County, as
     well as in each and every County in which he may maintain an
     office, or in which he may designate a place for meeting, ad-
     vising with, treating in any manner, or prescribing for patients;
     and the absence of such record in any place where such record
     is hereby required shall be prima facie evidence of the want
     of possession of such certificate."
     Article 741. "PRACTICING MEDICINE. Any person shall be re-
     garded as practicing medicine within the meaning of this chap-
     ter:
     "1. Who shall publicly profess to be a physician or surgeon
     and shall treat or offer to treat any disease or disorder, men-
     tal or physical, or any physical deformity or injury, by any
     system or method, or to effect cures,thereof.
     "2. tiho shall treat or offer to treat any disease oredisorder,
     mental or physical, or any physical deformity or injury, by
     any system or method, or to effect cures thereof and charge
     therefor, directly or indirectly, money or other compensation."
     Article 742. "lJNLA;iFULLYPRACTICING MEDICINE. Any person
     practicing medicine in this State in violation of the preceding
     articles of this chapter shall be fined not less than fifty
     nor more than five hundred dollars, and be imprisoned in jail
     not exceeding six months. Each day of such violation shall be
     a separate offense. "
The mimeographed form you submit with your letter requesting this
opinion has been given unqualified approval by the Court of Criminal
Appeals. Hawkins v. State, 136 Tex. Cr. R. 413, 125 S.& (2dj
5$0; Piner v. State, 131 Tex. Cr. R. 266, 97 S.$l. (Zd) 953. In the
Hawkins case the form is set out in heat verba.
In the closing part of the specimen complaint you have interlined
with a pen your suggested changes. For the sake of brevity, we do
not here copy the entire form, bnt the clause you desire to t?hange,
as approved by the court reads: "the certificate evidencing his
right to practice medicine, as issued to him by the Texas State
Board of Medical Examiners," etc., and the languagesyou suggest
would be: "the certificate evidencing his authority or right to
treat or offer to treat the said         for a disease or disorder
as issued to him by the State of Texas," etc.
In the Piner case, supra, the charge in part reads:
-




    Honorable T, J. Crowe, page 3      O-2621


         "Any person shall be regarded as practicing medicine within
         the meaning of the law, who shall treat, or offer to treat,
         any disease or disorder, mental or physical, or any physical
         deformity or injury, by any system or method or to effect cures
         thereof, and to charge therefor, directly or indirectly
         money or other compensation.
        "The practice of medicine as defined by the Statutes of the
        State of Texas includes every method or system used in the
        treating of any disease or disorder, deformity or injury,
        whether said treatment consists of the use of mechanical means
        or in the administration of drugs. And you are instructed
        that in order for the defendant in this case to be guilty it
        was not necessary that he should have prescribed or administered
        any drugs, but that if he did on or about the 20th day of
        July, A.D. 1935, or any day within two years prior to the
        filing of the complaint in Hunt County, Texas? treat or offer
        to treat any disease, disorder, deformity or injury, by the
        application of his hands to the person named in the informa-
        tion, or by the use of any other system or method treat or
        offer to treat the person named in the information for any
        disease, disorder, deformity or injury, and charge therefor,
        he would within the meaning of the statutes of this State
        have been a practitioner of medicine."
    The identical information now used and which you submit, as well
    as a charge substantially as here quoted, was used in the Piner
    case, supra, as well as in Hoy v. State, 134 Tex, Cr, R. 226, 115
    s; ';'s&"' 629, and Ehrke v. State, 134 Tex. Cr. R. 222, 115 S, W,,
      d     0 In each case the Court of Criminal Appeals overruled
    the attacks made upon the complaint, information and charge. i/e
    have verified the published opinions by an examination of the
    original transcript on file in the office of the Clerk of the Court
    of Criminal Appeals,
    Many cases have affirmed the fact that the use of the words in the
    statute "practice of medicine" does not preclude successful pro-
    secution, though the practitioner does not use medicine,, 33 Tex.
    Jur, 302, 13, Ex parte Collins, 57 Tex, Cr. R, ltJ121 S. W. 501,
    affirmed 223 U, S, 288, 32 S, Ct. 286, 56 L, Ed. 439; Newman ve
    State, 5g Tex, Cr. R.'223, 124 S, W, 956,
    Article 8 of our Penal Code reads as follows:
         "Words which have their meaning specially defined shall be
         understood in that sense, though it be contrary to their usual
         meaning; and all words used in this Code, except where a
         word, term or phrase is specially defined, are to be taken
         and construed in the sense in which they are understood in
         common language, taking into consideration the context and
         subject matter relative to which they are employed,"
Honorable T. J. Crowe, page 4      O-2621


In view of the above article, an indictment alleging that defen-
dant with malice aforethought shot the injured party with intent
to kill him, was held sufficient to charge an assualt with intent
to murder in the case of Perez v. State, 114 Tex. Cr. R. 473, 22
S. W. (2d) 309. However, the court said:
    "The omission of the allegation that P made anassualt upon
    0, and the omission of some description of the general charac-
    ter of the wea on used in so doing, is not to be commended,
    but avoided. P t is better and more commendable to adhere
    to beaten paths in such matters, thus avoiding multiplication
    of needless issues and increase of unnecessary labor in the
    solution of such issues."
In the case of Allen v. State, 97 Tex. Cr.,R. 467, 262 S. We 502,
the pleader, in drawing an indictment for theft, substituted the
                                  in describing the fraudulent ac-
word "obtain" for the word 8'takef'
quisition of the property. We quote,a part of the opinion:
    "The word 'take' is used in the statute; the word 'obtain' is
    used in the indictment, while they may in a sense be inter-
    changeable, it is believed that they are not synonymous in
    the sense that one may be substituted for the other in charg-
    ing theft under the particular article of the statute upon
    which this prosecution is founded. 'Taking' as embraced in
    Article 1329, supra, has received judicial interpretation a
    number of times. (Citing several cases.) What is meant by
    'fraudulent taking', as the words are used in the statute un-
    der consideration, is co well settled that their use in the
    indictment for theft under Article 1329, supra, leaves no room
    for inquiry touching their meaning. It is not essential that
    an indictment be embraced in the language of the statute; nor
    is it always sufficient to do so, but where the language of
    the statute is plain and the meaning well understood, not
    only from the face of the statute, but from the previous ju-
    dicial interpretation, a departure from the statutory lan-
    guage ought not to be practiced. See Sparks vs State, 76
    Tex. Cr. R. 263, 174 S. W. 352."
Article 410 of the Code of Criminal Procedure reade as follows:
     "words used in a statute to define an offense need not be
     strictly pursued in the indictment; it is sufficient to use
     other words conveying the same meaning, or which include the
     sense of the statutory words."
Nevertheless, in the notes following the statute in Vernon's An-
notated Criminal Statutes, Code of Criminal Procedure, Vol. 1,
p. 299, it is said:
Honorable T. J. Crowe, page 5      O-2621


     *It is always safer, in describing the offense, to use the
     words of the statute, instead of undertaking to substitute
     them with other words of equivalent or more comprehensive
     meaning,"
It is our opinion that since the Court of Criminal Appeals has
specifically approved the form you are now using, and has sanc-
tioned the charge of the court set out above, it would be greater
wisdom to "adhere to the beaten paths" by continuing their use.
We believe it would be the safer course to pursue because the
offense is the "unlawful practice of medicine,* so denominated by
both Articles 739 and 742, supra; while Article 741 was evidently
inserted by the Legislature to clarify, explain and enlarge upon
the commonly accepted meaning of the term in compliance with the
spirit and intent of Article 8, Penal Code, supra.
In any event, we express disapproval of the proposed change you
submit for two reasons: (1) We know of no legal right of any board
or commission to grant authority or right to "treat or offer to
treat" an ,individual "for a disease or disorder", but the right
to practice medicine is a general one; and (2) "as issued to him
by the State of Texas" is too general, since the Texas State Board
of Medical Examiners is the only instrumentality ofthe state with
the right to license practitioners.
                                         Yours very truly
                                   ATTORNEY GENERAL OF TEXAS
APPROVED AUG. 22, 1940
GROVER SELLERS
FIRST ASSISTANT
ATTORNEY GENERAL                    BY    Benjamin 'Woodall
                                                 Assistant
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