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Dr.    H.    G. Towle,            President
Texas       State      Board         of Examiners              in Optometry
Snyder,          Texas


Dear    Sir:


                      Opinion        No.      O-1588
                    Re:      Does        the Board         of Optometry                have      authority          to limit
                             the amount            or percentage                 that could           be paid       to a jewel-
                             ry    store        by an optometrist,                  (and     related         questions)
                              under        Articles      4552-4566,                inclusive,          Vernon’s        Civil
                             Statutes,          1925, as amended.


            We     are     pleased          to reply      to your          letter      of October            17, 1939, wherein
you    say:


                      “The     State       Board       of Optometry                would       like    to have       a con-
            struction         of H.B.         410, passed           by the Forty-sixth                   Legislature,
            in regard          to Subsections              (b),     (f),    (g),    (h) and      (i)    of Section        8,
            Article        3462.         We     are    especially           interested           in these        subsec-
            tions      by reason            of the fact        that a few            optometrists             are    working
            in jewelry            stores        and are       entering           into contracts              whereby          a
            certain       percentage             of their         fees     are      split    with      the owner         of the
            jewelry          store      in lieu       of rent.


                      “In view          of the Subsections                 as    set   forth     above,        and     also
            Section    16 of H.B.               410, we would              like     to have       your       opinion      as
            to 4; * **


                      1. “Whether           or not the board                would        have     authority          to limit
            the amount             or    percentage           that could            be paid      to the jewelry               store
            by the optometrist,                   and


                      2. “If we         could     do so,      as to whether                 or not.the         Board      could
            adopt      a rule        by which          the percentage                allowed          from     the optome-
            trist’s       practice         would       in no event              exceed      the usual         and     custom-
            ary     rental        for    the same        or    similar             space     in the adjacent             property,
            or    in the      same         locality.
Dr.     H.    G.      Towle,        President,            Page         2, O-1588




                       3.    “Also,        under        Section            16 of H.      B.    410, could           the board
             adopt         rules     and     regulations               covering          practice          by optometrists
             in jewelry             stores        whereby             the optometrist               must      pay      his     own
             bills,     advertising               and     all    his       equipment          and      merchandise.


                      4.     “Under          Section        16, could             the board         require          that a sep-
             arate         contract        for     rent     by required,                 and a separate               one for
             handling          accounts,           and     that all          material          and     equipment             be
             billed         to the    optometrist               and        paid    by the optometrist.”


                      In our        opinion        the board               would     not have          authority         to limit           the
amount         or     percentage             that could              be paid       by the optometrist                   to the jewelry
store.


                      Article        4556,        Vernon’s             Civil       Statutes,        1925, as amended,                      pro-
vides,       in part:


                       “The        board      shall       have        power        to make          such     rules      and        regu-
             lations         not inconsistent                  with     this      law    as    may      be necessary                for
             the * * * regulation                     of the practice                of optometry              * *. *”


                      Thus,        the board            could         make        such    regulations              that’might            be
necessary             for     the regulation               of the practice                of optometry,               but such            regu-
lations,       as provided              by the Legislature,                        must       not be “inconsistent                      with
this     law.”


                      We      now     call       attention           to Article          4566,      Vernon’s           Civil       Statutes,
as     amended,             which     reads:


                      “Provided            that     it shall          not be construed                 as    a violation            of
             this Act         forany         optometrist                to lease         space       from         an establish-
             ment       on a percentage                   or    gross        receipts          basis        or to sell,           trans-
             fer      or assign        accounts            receivable.”


                      Since        the Legislature                   has    provided          that     such        leasing,        as     is
mentioned             above,         is not a violation                    of the Optometry                 Act,     in our        opinion
any     regulation            tending        to limit           or    fix    the amount             or percentage                 that could
be paid        by the,optometrist                     to the jewelry                 store     would         be     improper             because
it would           be “inconsistent                with        this    law”,       and     contrary          to the expressed                     in-
tent     of the Legislature.
Dr.     H.     T.    Towle,        President,           Page       3, O-1588




                      Due     to the fact           that we      have      answered            your     first     question        in the
negative,           and     since       your     second         question        depended         on the first,           your     second
question            must     be answered               likewise.


                      In our       opinion       your      third      an,d fourth        questions            must    both      be ans-
wered        in the negative.


                      By     virtue       of the Fourteenth                Amendment             to the United             States     Con-
stitution           and Section           19 of the Bill           of Rights          of our    State     Constitution,             a per-
son     is deemed             to have       a constitutional               right      to contract         with     reference          to law-
ful matters,              which       includes         the use        of his     property.


                      See     9 TEX.        JUR.,        8 90, p. 522;
                      16 C.J.S.,          fi 575,      p. 1167;
                      TAYLOR            v. LEONARD                 (Tex.      Civ.     App.)     281 S.W.         596.


The     right        to make        contracts           is declared            to be both       a liberty         and a p.roperty
right     and to be within                 the protection             of the guaranties                against       the taking        of
property            without       due     process        of law.         An     enactment          which        impairs       this    right
is held        to be invalid.


                      9 TEX.        JUR.,        § 90, p. 523.
                      16 C.J.S.,          5 575,       p. 1167;
                     HALL          v. HIX,       (Tex.     Civ.       App.)      297 S.W.        491.


                      “The     right       of an optometrist,                  duly    licensed,         to conduct         his
             business         or    practice           optometry,          is a property              right     protected
             by the Constitution.                   DENT         v. W.        VA.,     129 U.S.        114, 123,. 124, 9
             Supt.     Ct.    231, 32 L.          Ed.     823;        DOUGLAS            v. NOBLE,              261 U.S.
             165, 43 Sup.           Ct.    303,     67 L.       Ed.    590.”


                     HARRIS           v. STATE           BOARD           OF     OPTOMETRICAL                      EXAMINERS,
             Sup.     Ct.    of Penn.          1926, 136 Atl.            237,


and,     therefore,           any     regulation          providing           that an optometrist                 must      “pay      his
own     bills,       advertising           and all       his    equipment             and merchandise”                or    providing
“that    a separates           contract          for     rent    be required,            and a separate              one for         handl-
ing accounts,               and that       all   material          and     equipment           be billed         to the optometrist
and     paid     by the optometrist”                    would       be invalid         as contravening               the above         men-
tioned       provisions            of the United           States        and    Texas      Constitution.
Dr.    H.    T.     Towle,         President,           Page       4, O-1588



                     We     are     aware          of the fact         that    this      right     to practice           optometry                is
not an inalienable                 right,        but is subject           to a proper              exercise         ,of the police
power.           Our   statutes           relating        to the practice                of optometry             were        enacted         by
the Legislature                 under       this    power;         the purpose             of said        statutes        and        the in-
tent   of the Legislature                   was      to protect          the public             health.


                     33 TEX.             JUR.,     5 4, p. 294,           e 5, p. 295,            5 7, p. 296.
                     HILLIARD              v. STATE,             7 Tex.        Crim.       App.,        69;
                     BAKER          v. STATE,              91 Tex.       Crim.         Rep.       521, 240 S.W.
                             924,        22 A.L.R.         1163;
                     STATE          v. GOLDMAN,                  44 TEX.           104,


and the statutes                 having      this    aim        are     to be construed                 in harmony            with      such
purpose          and policy.              This     is well       expressed            in the case             of GOLDING               v.
SCHUBACH               OPTICAL              CO.,     Sup.       Ct.     of Utah,         1937, 70 Pac.            (2d)     871, where
the court          says     on page         874:


                     ‘The        state     has     spoken        on the subject               of optometry              and
            optometrists,                not for     the purPose               of conferring              any    special
            privileges            upon     optometrists,               nor     to put any          special        restric-
            tions      upon them,            but to preserve                 and     protect       the public           against
            quacks         and     charlatans,            who,        however         incompetent               they    might
            be, would           prey      upon      the desire           and necessity              of the people               to
            protect        their       eyesight.          Chapter         11 of Title            79, R.S.        Utah     1933
            (the     statute       referring            to optometry)              was     enacted         by the Legis-
            lature        because         that body         felt      that the protection                 of eye        sight
            was      of public           concern,         and    one not qualified                should         not be per-
            mitted        to examine             eyes     and diagnose               and    prescribe            treatment,
            or     types     of glasses,            to cure        the defects,            or    preserve          the failing
            sight.        The      act    must      therefore           be construed              in the light           of the
            purposes         of its enactment;                   that    is,    as    a measure               to protect        the
            health     and eyesight                of the people,              and when          this     purpose         is ac-
            complished,             it is not within               the province            or power             of the court
            to extend         it beyond            such    purposes;            or    to read       into        it something
            not designed            to protect            the public           interest         and health,            but to
            grant      monopolies,               regulate        private        business           or     relationships,
            grant      special         privileges,           or curtail          the normal              human         rights
            and     liberties.”


                     The    Board          of Optometry               could     make        such        regulations           that would
not be inconsistent                 with     the law,           but under          the above            cited     authorities,              any
such      regulation         adopted         must         be for       the purpose              of protecting            the public
health.
Dr.    H.    T.     Towle,      President,               Page         5, O-1588




                     In the case            of HARRIS              v. STATE           BOARD          OF     OPTOMETRICAL
EXAMINERS,                  supra,     the court              said      on page       239:


                     “Therefore,             the manner,                 scope,      and extent          of the prac-
            tice     are    the subject               of legislative           inquiry         and   control           but the
            regulations             must     be reasonable.                    The     Legislature,           under           the
            police      power,        does        not posse~ss             the power           to enact       rules       which
            have      no substantial                  relation         to the end to be obtained,.                     It cannot
            unreasonably              prevent            or limit        the practitioner              from       acquiring
            the business             for    which         he was         licensed.            Legislature          do not have
            the power,          under        the guise            of police          regulation,         to arbitrarily
            invade         the personal               right      and liberty         of the individual.                * * *


                     ‘The     manner             or    mode       of exercising               a lawful      occupation
            may      be regulated            only         in the       interest       of public        health       or’ to
            secure         safety     to the citizens.                   The      Legislature            cannot        adopt,
            as     regulations,            the ethics            of the profession               which      may        limit
            the practice             to be secured                or     the method           of procuring             it.”


                    Thus,      any     regulation              passed       by the Legislature,                   or     by an admisis-
trative      board,         must      be for          the purpose           of protecting            the public           health;          the regu-
lations      must      be reasonably                   related         to the end desired                to be attained                  (the   protec-
tion   of the public           health).           Any         rules      which       are    not calculated              to attain           this    end
are    invalid,       particularly               when         they abrogate            any     of the inherent                rights        guaran-
teed    under        the constitution.


                    See     16 C.J.S.,           5 178, p. 548, § 188, p. 556, § 195, p. 562;
                    9 TEX.          JUR.,        8 78, p. 506;
                    STONE           v. KENDALL                   (Tex.     Civ.      App.),      268 S.W.         759.


                    In our     opinion,           such        regulations            as    you   mention        in your             letter,        cannot
be said       to be regulations                  designed            to protect           the public      health.             In the case           of
STATE         v. BORAH,              76 Pac.           (2d)    757 Sup.        Ct.     of Ark.        1938, the court                    said   on p.
759:


                    “In determining,                    therefore,         whether          or not a regulation                     of
            the practice            o,f medicine              in any      of its branches              is a reasonable
            one,     and thus        within           the power          of the Legislature                 to enact,          the
            test    must      always         be whether                or not it is reasonably                  necessary
            and appropriate                for    the protection               of the public             health.”
                                                                                                              --       .-




Dr.     H.   T.    Towle,      President,          Page   6, O-1588




                    It is our        opinion     that the regulations        which      are      mentioned          in your
letter,      are    not reasonably              related   to the purpose       for    which       our   law        on optom-
etry      was     passed.       They     are     not necessary        and appropriate            for    the protection
of the public         health.         Such     regulations     would    be a denial           of the freedom           of con-
tract     and,     in this,     would        contravene      the Fourteenth          Amendment           of the United
States       Constitution          and   Section      19 of Article     8 of the Texas            Constitution.              Under
the authorities             cited,     and     the reasons     herein     stated,     the answer         to each        of
your      questions         must      be answered         in the negative.


                                                                  Yours      very     truly


                                                                  ATTORNEYGENERALOFTEXAS


                                                                 BY     J&?-uhkw, 7-&4
                                                                             Walter       R. Koch
                                                                                    Ass.istant



APPROVED              NOV      29, 1939




ATTORNEY              GENERAL            OF      TEXAS



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