                       F, AA~~~~~~    GENERAL
                             OF TEXAS
                           AUSTIN.     Txzxas          78711




                                   April    25, 1974



The Honorable     Carl C. Hardin, Jr:                      Opinion   No.   H- 283
Executive   Secretary
Texas State Board of Dental Examiners                      Re:     Construction   of Senate
Capital National    Bank Building                          Bill 222, 63rd Legislature,
Austin,   Texas 78701                                      Regular   Session,   1973

Dear   Mr.   Hardin:

        You have requested      our opinion as to the effect of certain amend-
ments to the Dental Practice         Act made by the 63rd Legislature           and now
codified   as Articles    4551d(l) and 4551f(6), V. T. C.S.        In your request you
advise that Texas dentists        commonly     patronize   dental laboratories      and
dental technicians     situated outside the state.       Prescriptions      for dental
restorations    needed by these dentists’ patients are sent to out-of-state
laboratories   for fabrication      by the dental techhicians      employed.there.
Most of the dental work done by these foreign            laboratories     is returned
through the mails.       You ask whether      the amendments        to the Dental Prac-
tice Act made by the 63rd Legislature           now prohibit    out-of-state     dental
laboratories    and dental technicians      from filling   a prescription      for dental
work submitted      by a Texas dentist for one of his patients.

       Article 4551d(l) empowers         the Texas State Board of Dental Examiners
to adopt rules and regulations        pertaining  to dental laboratories   and dental
technicians.   Article    45511(6)(a)   requires   dental laboratories   and dental tech-
nicians to register    with the Board as follows:

                     “(6)(a) It shall be the duty of the owner,  owners,
              and manager     of each dental laboratory  in this State to
              annually apply to and register    each dental laboratory    in
              this State with which he has any connection     or interest
              with the Texas     State Board of Dental Examiners     on or
              before March 1 of each calendar      year and to pay in con-




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The Honorable       Carl   C. Hardin,    Jr.,      page   2 (H-283)




              nection with such application        a fee of not less than
              $25 nor more than $200 as determined             by the Board
              according      to the needs of the Board to the Dental
              Registration      Fund, and such application       shall set
              forth such facts as the Board may require.               It shall
              also be the duty of each dental laboratory           technician
              registered      pursuant to this Act and as provided          by
              the Texas State Board of Dental Examiners               in its rules
              and regulations      to annually apply to and to register
              with the Texas State Board of Dental Examiners                 on or
              before March 1 of each calendar          year,   and to pay in
              connection      with such application    a fee of not less than
              $10 nor more than $25 as determined            by the Board
              according      to the needs of said Board to the Dental
              Registration      Fund, and such application       shall set forth
               such facts as the Board may require;          further,     a list of
              all other employees       of a dental laboratory      who are not
               required    to register  hereunder     shall be furnished       quar-
               terly to the Texas State Board of Dental Examiners                and
              to the Dental Laboratory        Advisory    Board as provided        in
              the rules of the Board. ”

       Subsection     (c) of Article    455lf(6)     provides:

                      “(c) From and after the effective    date of this Act,
              it shall be unlawful for anyone other than a dental labora-
              tory or’ dental technician   duly registered    hereunder,    to
              fill any prescription   for a dental prosthetic    appliance   or
              the repair thereof,   to be delivered    by a licensed   dentist
              in this State to a dental patient. ”

       An interpretation    of Subsection    (c) that prohibited     out-of-state    dental
laboratories   or technicians    from filling    prescriptions    for Texas dentists
would clearly   be suspect as imposing       an undue burden on interstate          commerce.
We need not reach that question       because we interpret       that subsection      to pro-
vide no more than that, before any laboratory            or technician    - regardless      of
where it or he is located     - can fill a prescription      submitted    by a Texas dentist




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The Honorable       Carl   C. Hardin,      Jr.,   page   3   (H-283)




for one of his patients,       it must first be duly registered          in accordance       with
the provisions    of Article      4551f(6) (a).   While Article     4551f(6) (a) requires       all
 Texas dental laboratories         and technicians      to register    with the Board,       it
does not preclude     out-of-state       laboratories     or technicians     from also regis-
tering under its provisions         if they wish to service        Texas dentists,      Thus
under Article    455lf(6)    of the Dental Practice        Act an out-of-state       dental
laboratory    or technician      is not precluded     from filling     prescriptions     for
 Texas dentists    so long as it or he has registered            in accordance      with the
provisions    of subsection(a).

        We incidentally    note that is has long been settled that the Legislature
may regulate     the practice     of dentistry   and related   skills in this manner
under its police powers.         Semler     v. Dental Examiners,      294 U.S. 608(1935)
and Carp v. Texas State Board of Examiners               in Optometry,     401 S. W. 2d
639 (Tex. Civ. App.,      Dallas,     1966), rev’d on other grounds,       412 S. W. 2d 307
 (Tex.  1967).   In our opinion any burden imposed           upon interstate   commerce
by our interpretation      of Article    455lf(6) is neither undue nor clearly      exces-
sive in relation    to the local health benefits      to be derived   from these provi-
sions.    See Huron Portland        Cement Co. v. City of Detroit,        362 U.S. 440
 (1960) and Dixie Dairy Company v. City of Chicago,              355 F. Supp. 1351 (N. D.
Ill. 1973).

                                            SUMMARY

                        Article    4551f(6) (c), V. T. C. S. , does not prohibit
                out-of-state      dental laboratories    or technicians   from
                filling prescriptions       for Texas dentists   so long as they
                have registered       with the Texas State Board of Dental
                Examiners       in accordance    with the provisions    of Article
                455lf’(6) (a).

                                              Very   truly   yours,




                                             JOHN L. HILL
                                             Attorney General          of Texas




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The Honorable   Carl   C. Hardin,    Jr.,    page 4   W-284)




DAVID M. KENDALL,         Chairman
Opinion Committee




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