Hon. M. H. Crabb, Secretary          Opinion NO.   ~-1192
Texas State Board of Medical
  Examiners                          Re:   Whether the piercing
1612 Summit Avenue, Suite 303              of ears by a lay person
Fort Worth, Texas 76102                    or organization for
                                           monetary or other con-
                                           sideration constitutes
                                           the "practice of medi-
                                           cine" within the meaning
                                           of Article 4510, Vernon's
Dear Dr. Crabb:                            Civil Statutes?

          Your recent letter requesting the opinion of this
office concerning the referenced matter states as follows:

           "The Texas State Board of Medical Examiners
     in Executive Session on Saturday, July 22, 1972,
     passed a Resolution requesting an Opinion as to
     the legality of a lay-organization or a lay-person
     not licensed to practice the Healing Arts can
     legally pierce ears where a charge is made for the
     service, or where the service is provided as a
     consideration for the purchase of the earrings,
     constitutes the practice of medicine as defined
     in Article 4510, Revised Civil Statutes of Texas."

           Article 4510, Vernon's Civil Statutes, provides as
follows:

           "Any person shall be regarded as practicing
     medicine within the meaning of this law:

          "(1) Who shall publicly profess to be a phy-
     sician or surgeon and shall diagnose, treat, or
     offer to treat, any disease or disorder, mental

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Dr. M. H. Crabb, page 2,         (M-1192)



     or physical, or any physical deformity or injury,
     by any system or method, or to effect cures
     thereof: (2) or who shall diagnose, treat or
     offer to treat any disease or disorder, mental
     or physical or any physical deformity or injuxy
     by any system or method and to effect cures
     thereof and charge therefor, directly or indirectly,
     money or other compensation. . . ."

          The legal question presented by your request is one
of first impression in this State.

          We take notice of the fact that the reason   persons,
primarily females, desire to~have their ears pierced   is so
they will be able to wear certain styles of earrings   which,
absent such piercing, could not be attached to their   ear lobes.

          Article 4510, supra, speaks in terms of an unlicensed
layman's treating a physical or mental "disease, disorder,
deformity, or injury". We fail to see how the piercing of ears
can possibly constitute treatment of a "disease, disorder,
deformity, or injury" within the meaning of that Article.

           We believe the rationale applicable to our holding
is best expressed in the analogous case of People v. Lehrman,
296 N.Y.S. 580 (N.Y.App.Div. 1937). There, the defendant was
indicted for unlawfully practicing medicine.   In her regular
course of business, she operated a beauty parlor and removed
hair from females' faces by means of the electrolysis process.
In overturning her conviction, the court held that:   "Practices
such as this have always been held to be matters of personal
taste and adornment and not connected with the practice of
medicine."   296 N.Y.S. at 581.

          For other holdings to the same effect, see Encel v.
Gerstenfeld, 171 N.Y.S. 1084 (N.Y. App.Div. 1918); People v.
Maqqi, 33 N.E.2d 925 (Ill.App.Div. 1941), aff'd 39 N.E.2d 317
(Ill.SUP. 1942); and 56 A.L.R.2d 904 (1957).




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.




    Dr. M. H. Crabb, page 3,          (M-1192)



              In view of the foregoing authorities, you are advised
    that the piercing of ears by a lay person or organization for
    monetary or other consideration does not constitute the "prac-
    tice of medicine."

          You are further advised that any medical treatment
of the ear lobe, should the same be required as the result of
the initial piercing of the lobe, would constitute the "prac-
tice of medicine". We are not advised that such medical treat-
ment is ordinarily required or to be reasonably expected.as
the result of this practice.

                          SUMMARY
                          _------

              The piercing of ears by a lay person or organ-
         ization for monetary or other consideration does
         not constitute the "practice of medicine", within
         the meaning of Article 4510, Vernon's Civil Statutes.




Prepared by Austin C. Bray, Jr.
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Jim Swearingen
Bill Flanary
Bob Gauss
Scott Garrison



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Dr. M. H. Crabb, page 4,     (M-1192)



SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOL?! WHITE
First Assistant




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