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                                         .Awe-            11. TEXAS

        WILL       WILSON
     A-l-l-0-X       GENERAL




               Honorable Bill Hollowell
               Chairman, State Affairs Committee
               House of Representatives
               Austin, Texas
                                           Opinion No. W-1045
                                                        Re:   Constitutionality of House
                                                              Bill 828 of the 57th Legls-
                                                              lature, relating to licensing
                                                              of clinical laboratories and
               Dear Mr. Hollowell:                            clinical laboratory directors.
                         You have requested an opinion on the constltutional-
               ity of House Bill 828 of the 57th Legislature which provides
               for a licensing of clinical laboratories and clinical labora-
               tory directors through the Texas State Health Department.
                         A clinical laboratory and clinical laboratory dlrec-
               tor are defined in Section.2 of the Act aa~follone:~

                              " 0)) 'Clinical Laboratory' means
                         any place, establishment or institution
                         organized and operated for the practical
                         application of one or more of the funda-
                         mental sciences by the use of specialized
                         apparatus, equipment and methods for the
                         purpose of obtaining scientific data which
                         may be used by a licensed physlclan as an
                         aid in ascertaining the presence, progress
                         and/or source of disease In human beings,
                         or the state of health of an individual;
                         provided, however, x-ray laboratories shall
                         not be included in this definition.

                                 "CC) 'Clinical Laboratory Director'
                            means any person licensed under this chapter
                            to engage fn the direction of a clinical
                            laboratory."
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        Honorable Bill Hollowell, page 2 (WW-1045)


              Other sections of the Act make It unlawful to oper-
    ate a clinlcal,laboratory or act as a director of such unless
    duly licensed by the licensing agency, the State,Health Depart-
    ment, and give to the Health Department certain authority in
    connection with the appllcatlons for and Issuance of the ll-
    censea and the establishment of rules and regulations necessary
    for the proper administration of the provisions of the Act.
                  House Bill 828 contains but one subject which is
        expressed in its title and the body of the Bill conforms to the
        caption and Is, therefore, in compliance with the provisions of
        Section 35 of Article III of the Constitution of Texas.
                 Section   31 of Article XVI of the Constitution of
        Texas provides:
                      "The Legislature may pass laws pre-
                 scribing the qualifications of practitioners
                 of medicine In this State, and to punish
                 persons for malpraatlce, but no preference
                 shall ever be given by law to any schools of
                 medicine."
                  In view of the provisions of Section 31 of Article
        XVI above quoted, the Legislature Is not authorlied to allow
        Individuals to practice medicine without requiring such ind~i-.-
        viduals to meet the reaulrements for license to nractlce medi-
        cine. Wilson v. State-Board of Naturopathic Examiners, 298
        S.W.2d 94b (Clv.App. 1957 , error re ., n.r.e., aer . en.,
        U.S. 870, reh.den., 355 U.S. 920); Schllchtlng v. Texas St%
        Board of Medical Examiners, 158 Tex. 279, 310 S.W.2d 557 (1958).
                  In view of the foregoing, the constitutionality of
        House Bill 828 Is dependent on whether Its provisions would
        authorize an individual licensed thereunder, to perform acts
        which constitute the practice of medicine as defined by Article
        4510, Vernon's Civil Statutes and Article 741, Vernon's Penal
        Code.
                  In conetrL%ng the pr0vlsiOas,of ths Medical Practice
        A0O~~~~f~~V?t%f4
                    held'in F.W.B.'RoCkett, M.D. v. State Board of
        Medical Examiners, 287 S.W.2d 190 (Civ.App. 195b, errorref.,
        n.r.e.):
                       I,
                        . . . ~By the pleadings of appellant,
                  his testimony, and the stipulations of the
                  parties, It was conclusively established
Honorable Bill Hollowell, page 3 (WW-1045)

         that: Appellant was.em loyed by Thomas
         Clinic for a salary of 500 per month
         and he received no fees; the Clinic was
         owned by Ralph C. Thomas, who was not a
         medical doctor and no medical doctor owned
         any interest in the clinic; appellant per-
         formed medical services for the clinic and
         the fees for such services were collected
         by the clinic. Such conduct on the part
         of appellant was In effect 'permitting,
         or allowing, another to use his license
         or certificate to practice medicine in
         this State, for the purpose of treating,
         or offering to treat, sick, Injured, or
         afflicted human beings', which conduct is
         prohibited by the provisions of Section 12
         of Art. 4505, Vernon's Ann.Civ.Stats., and
         Is made a ground for the forfeiture of a
         license to practice medicine by the pro-
         visions of Art. 4506, Vernon's Ann.Clv.Stats.
         See Section 5, Art. 4505."
          See also Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376
(1957); Texas State Board of Examiners In Optometry v. Carp,
-Tex.--, 343 S W 26 242 (lgbl);  and Attorney Qeneral's Opln-
Ion No. ~~-278 il957).
          While the definitions in Section 2 do not clearly
specify or limit all acts which might or might not be performed
by a clinical laboratory,~It Is noted that.Sectlon 15 ~of House
~111 828 specifically provides:
              "Nothing in this Act or the licensing
         hereunder shall be construed as authorizing
         or permitting any person to practice medl-
         alne or to furnish the services of a physician
         for the practice of medicine, and nothing in
         this Act shall repeal or In any manner affect
         any provision of the code relating to the praa-
         tice of medicine, and nothing In this Act
         shall affect any clinical laboratory or lab-
         oratories operated by the State of Texas, the
         Federal Government, or any subdivision thereof,
         or a physician licensed in the arts of healing.
         All laboratory work done by clinical labora-
         tories licensed hereunder shall be done only
         upon request of a physician licensed in the
         healing arts by the State of Texas, or a phy-
         sician licensed in the state in which he
         practices, and all reports of the findings
         made in the tests conducted by the laboratory
         shall be reported only to the person requesting
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        Honorable Bill Hollowell, page.4 (WW-1045)


                     said test or.to the person or persons
                     designated by the person making such
                     request."
                  In view of the provisions of Section 15, an Individual
        licensed in accordance with the provisions of House Bill 828
        is not permitted to perform any act which would conatltute the
        practice of medicine in this State. On the contrary, such
        individuals perform chemical analyses and tests conducted by
        the laboratory for the use and benefit of lndlvlduals licensed
        to practice medicine in this State. Therefore, It Is our opfn-
        ion that the provisions of House Bill 828 do not violate the
        provisions of Section 31,of Article XVI of the Constitution of
        Texas.
                  We do not find any provision in House Bill 828 which
        violates any other provision of the Constitution of Texas and
        you are, therefore, advised that its provisions are aonstltu-
        tlonal and valld.

                                   SUMMARY
                         House Bill 828 of the 57th Legis-
                         lature, relating to licensing of
                         clinical .laboratdrieszdoes not.        "
                         authorize the performance of acts
                 .       which constitute the practice of
                         medicine and is;therefore, not In
                         violation of,Sectlon 31 of Article
                         XVI of the Constitution of Texas
                         and Its provisions are conatltu-
                         tlonal and valid.
                                             Yours vefy truly,
                                             WILL WILSON
                                             Attorney General of Texas



        JR:afg
        APPROVED:
        OPINION COMMITTFX
        W. V. Geppert, Chairman
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            Honorable Bill Hollowell, page 5 (WW-1045)


            Leon Pesek
            Jack Price
            Ray Loft123
            Llnward Shivers
            REVIEWED FOR THE ATTORNiY GENERAL
            BY: Morgan Nesbltt
