          ~~~EA~TORNEYGENERAL
                        OFTEXAS



                         November 5, 1959

Dr. Ira E. Woods, President
State Board of Examiners in Optometry
Bolm Building
Austin, Texas
                                Opinion No. WW-722
                                  Re:   Validity of rules
                                        proposed to be adopted
                                        by the State Board of
Dear Dr. Woods:                         Examiners in Optometry
        You have requested our opinion on the validity of
rules proposed to be adopted by the Texas State Board of'
Examiners in Optometry. These rules provide as follows:
            "In order to protect the public in the
       practice of optometry, better enable members
       of the public to fix professional responsl-
       bility, and further safeguard the doctor-
       patient relationship, the following rule is
       hereby adopted by the Texas State Board of
       Examiners in 'Optometryon the        day of
                        1959, to becomeectlve     on
       the       day Af              t 1959.
        "Section 1.   No optometrist shall:
             a.    Divide, share, split, or allocate,
                   either directly or Indirectly, any
                   fee for optometric services or mate-
                   rials with any lay person, firm or
                   corporation, provided that this rule
                   shall not be Interpreted to prevent
                   an optometrist from paying an employ-
                   ee in the regular course of employment,
                  ,and provided further that it shall not
                   be construed as a violation of this
                   rule for any optometrist to lease
                   space from an establishment on a
                   percentage of gross receipts basis
                   or to sell, transfer or assign ac-
                   counts receivable.
.   .    _




        Dr. Ira E. Woods, page 2 (Ww-722)


                    b
                    -*   Divide, share, split or allocate
                         either directly or Indirectly, any
                         fee for optometric services or mate-
                         rials with another optometrist or
                         with a physician except upon a divi-
                         sion of service or responsibility and
                         then only after the patient paying the
                         fee has full knowledge thereof, pro-
                         vided that this rule shall not be lnter-
                         preted to prevent partnerships for the
                         practice of optometry.
                    C.
                    -    Practice or continue, after the elaps-
                         ing of a reasonable time not to exceed
                         one (1) year after the effective date
                         of this rule, to practice optometry
                         under, or use in connection wi.thhis
                         practice oi optometry, any assumed name,
                         corporate 'name,trade name, or any name
                         other than the name under which he is
                         licensed to practice optometry in Texas;
                         provided, however, that optometrists
                         practicing as partners may practice under
                         the full or last names of the partners.
                         Optometrists who are employed by other
                         optometrists shall practice in their own
                         names, but may practice in an office
                         listed under the name of the individual
                         optometrist or partnership of optometrists
                         by whom they are employed. In event of
                         the death or retirement of a partner, the
                         surviving partner or partners practicing
                         optometry in a partnership name may, with
                         the written permission of the retiring
                         partner or the deceased optometrist's
                         widow or other legal representative, as
                         the case may be, continue to practice
                         with the name of the deceased partner in
                         the partnership name for a period not to
                         exceed one (1) year from the date of his
                         death, or during the period of admlnistra-
                         tion of a deceased partner's estate as
                         provided by Article 4563, as amended,
                         Revised Civil'Statutes of Texas, which-
                         ever period shall be the longer.
Dr. Ira E. Woods, Page 3 (WJ-722)


            d.   Use, cause or allow to be used after
                 the elapsing of a reasonable time not
                 to exceed one (1) year after the effect-
                 ive date of this rule, his name or
                 professional identification, as author-
                 ized by Article 4590e, as amended, Re-
                 vised Civil Statutes of Texas, on or
                 about the door, window, wall,directory,
                 or any sign or listing whatsoever, of
                 anyofflce, location or place where
                 optometry is practiced, unless said op-
                 tometrist is actually present and practic-
                 ing optometry therein during the hours
                 such office, location or place of practice
                 is open to the public for the practice of
                 optometry.

            E*   Practice or continue, after the elapsing
                 of a reasonable time not to exceed one
                 (1) year after the effective date of this
                 rule, to practice optometry In any office,
                 location or place of practice where any
                 name, names or professional identification
                 on or about the door, window, wall, direct-
                 ory, or any sign or listing whatsoever, or
                 in any manner used in connection therewith,
                 shall indicate or tend to indicate that such
                 office, location or place of practice Is
                 owned, operated, supervised, staffed, di-
                 rected or attended by any person not actu-
                 ally present and practicing optometry
                 therein during the hours such office,
                 location or place of practice Is open to
                 the public for the practice of optometry.

            C*   The requirement of subparagraphs !Jand e
                 above that an optometrist be 'actually
                 present' In an office, location or place
                 of practice holding his name out to the
                 public shall be deemed satisfied if the
                 optometrist Is, as to such office, locatj.on
                 or place of practice, either:
Dr. Ira E. Woods, page 4 (WV-722)


                  (1) physically present therein
                      more than half the total num-
                      ber of hours such office, loca-
                      tion, or place of practice is
                      open to the public for the
                      practice of optometry during
                      each calendar month for at least
                      nine months in each calendar
                      year; or
                  (2) physically present in such
                      office, location, or place of
                      practice for at least one-half
                      of the time such person conducts,
                      directs, or supervises any prac-
                      tice of optometry.
                  Provided that this rule shall not be
                  interpreted as requiring the physical
                  presence of a person who is ill, in-
                  jured, oreotherwise incapacitated
                  temporarily.
                  The requirement of subparagraphs d and
                  e above that an optometrist be 'practic-
                  &g optometry' at an office, location,
                  or place of practice holding his name
                  out to the public shall be deemed sates-
                  fled if the optometrist regularly makes
                  personal examination at such office, lo-
                  cation, or place of practice of the eyes
                  of some of the persons prescribed for
                  therein or regularly supervises or directs
                  in person at such office, location or
                  place of practice such examinations.
            "Section 2. The willful or repeated failure or
       refusal of an optometrist to comply with any of the
       provisions of Section 1 above shall be considered'by
       the Texas State Board of Examiners in Optometry to
       constitute prima facie evidence that such optometrist
       Is guilty of violation of Chapter 10, Title 71. as
       amended,.of the Revised Civil-Statutes of Texas, and
       shall be sufficient ground for the filing of charaes
                                                       ~I~
       to cancel, revoke or-suspend his license: The charges
       shall state the specific instance or instances in which
       it is alleged that the rule was not complied with.
Dr. Ira E. Woods, page 5 (WW-722)


        Alternatively, or in addition to the above,   it
        shall be the duty of the Board to institute   and
        prosecute an action in a court of competent   juris-
        diction to restrain or enjoin the violation   of
        any of the preceding rules.
             "Section 3. If any section, subsection,
        paragraph, subparagraph, sentence, clause or
        part of the above provisions shall, for any
        reason, be held invalid, such decision shall
        not affect the remaining portions of the above
        provisions, and it is hereby declared to be
        the intention of the Texas State Board of Exam-
        iners in Optometry to have promulgated and
        adopted each section, subsection, paragraph,
        subparagraph, sentence, clause, or part of the
        above provisions Irrespective of the fact that
        any other section, subsection, paragraph, sub-
        paragraph, sentence, clause, or part of the
        above provisions may be declared invalid, that
        is, it isthe Intention of the said Board that
        each of the above provisions and portions there-
        of are severable.
             "Section 4. All rules,,regulations, and
        administrative Interpretations heretofore~adopted
        by the Board are hereby.repealed and rescinded
        insofar as such rules or interpretations, or any
        of them, or any provision thereof, is, or are
        inconsistent herewith."
        It Is our opinion that the PtiODOSed rules are valid
underthe principles of law announced in Kee v. Baber,
Tex.~     303 S.W.2d 376 .(1957),and the authorities cim
thereK'
        A study of the proposed rules submitted to this office
reveals that their purpose is to prevent the "corporate prac-
tice of optometry" an,dto ~prevent the practice of optometry
"under an assumed nsme, corporate name or,trade name." It is
now settled that a~corporation,.buslness enterprise, or un-
licensed individual cannot practice optometry ~throughlicensed
employees. Kee v. Baber, supra. Likewise, we are unable to
find any provisionwhich   authorizes the practice of optometry
under any assumed name or trade name. The assumed name stat-
ute "was not designed to confer rights, but rather to impose
Dr. Ira E. Woods, page 6 (WW-722)


obligations." McCarley v. Welch, 170 S.W.2d 332, (Tex.Civ.
ADD. 1943). The nractice of ontometrv is not a trade or
merchandising business, but rather a profession to be regu-
lated as such. If the public is actually dealing with a
separate entity, the arrangement Is prohibited under the cor-
porate practice rule doctrine. The use of an assumed name or
trade name hides the Identity of the optometrist with whom the
patient Is actually dealing, and to this extent, destroys the
optometrist-patient relationship. The optometrist has misrepre-
sented to the public the true facts by the adoption of a name
other than the name under which he is licensed. Such misrepre-
sentation is prohibited by the provisions of Article 4563, Re-
vised Civil Statutes of Texas, 1925, as amended. Furthermore,
Article 4590e, Vernon's Civil Statutes, specifically provides
the method of identification of Individuals licensed to pract-
ice optometry in this State, and such identification does not
include the use of any assumed name, corporate name, trade
name, or any name other than the name under which an optome-
trist is licensed to practice optometry In Texas.
        The proposed rules do not prevent licensed optometrists
from being employed by other licensed optometrist, nordo the
rules prevent the forming of partnerships of optometrists.
        In view of the foregoing, It is our opinion that the
proposed rules are not inconsistent with the statutory provi-
sions regulating the practice of optometry and are, therefore,
valid, Kee v. Baber, supra.
                           SUMMARY
            The proposed rules of the Optometry Board
            seeking to prevent  the "corporate practice
            of optometry" and the practice of ootome-
            try under an assumed name, corporate name,
            trade name, or ‘any name. other than ~the
            name under which an optometrist is licensed
            to practice optometry are valid since such
            rules and regulations are not inconsistent
            with the statutory provisions regulating
            the practice of optometry.
                               Yours very truly,
                               WILL WILSON
                               ~~~zlp~


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                                    Assistant
