                         The Attorney                  General of Texas
                                           September         24,    1980

MARK WHITE
Attorney General

                   Honorable John J. Kavanagh, M.D.                  Opinion No.    MW-24 8
                   Commissioner
                   Texas Department   of Mental                      Re: Means by which the Depart-
                     Health & Mental Retardation                     ment of Mental Health and Mental
                   P. 0. Box 12668, Capitol Station                  Retardation     can obtain consent for
                   Austin, Texas   78711                             dental    treatment    of patients  or
                                                                     residents

                   Dear Mr. Kavanagh:

                           Your question   concerns    article     3174b-2, V.T.C.S.,   which   provides,   in
                   pertinent   part:

                                     The Board of Texas State Hospitals and Special
                                Schools. . . shall provide         or perform      recognized
                                medical treatment      or services to persons admitted or
                                committed     to its care.      Where the consent of any
                                person or guardian       is considered     necessary,   and is
                                requested,   and such person or guardian shall fail to
                                immediately      reply    thereto,    the   performance       or
                                provision   for the treatment         or services     shall be
                                ordered by the superintendent          upon the advice and
                                consent of three (3) medical doctors, at least one of
                                whom must principally          be engaged     in the private
                                practice of medicine.       Where there is no guardian or
                                responsible   relative to whom request can be made,
                                treatment    end operation      shall be performed      on the
                                advice and consent of three (3) physicians licensed by
                                the State Board of Medical Examiners.

                   Acts 1955, 54th Leg., ch. 54, §l, at 86. The Board of Texas State Hospitals
                   and Special Schools was abolished       in 1965 and replaced       by the Texas
                   Department     of Mental Health and Mental Retardation.      Acts 1965, 59th Leg.,
                    ch. 67, SSl, 2, at 165.      You ask whether    article    3174b-2 authorizes     a
                   superintendent    of a Department   of Mental Health end Mental Retardation
                   facility   to order dental treatment    and services     for persons committed
                   thereto upon the advice and consent of three dentists.

                          In instances where      consent to treatment         or services is considered
                   necessary but no guardian      or responsible relative     of the person committed    to




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Honorable    John J. Kavanagh      - Page Two         (MW-248)




the facility exists, article 3174b-2 provides that treatment        shall be performed   only
upon the advice and consent of three physicians “licensed by the State Board of
Medical Examiners?’        Dentists are not licensed     by the State Board of Medical
Examiners,    article 4504a, V.T.C.S., but instead are licensed by the State Board of
Dental Examiners.      Article 4543, et.,      V.T.C.S.     Accordingly,    we conclude that
dentists   may not provide the necessary     consent to treatment        when no guardian or
responsible relative of the person committed    to the facility exists.

        When the consent of the person committed                to the facility or his guardian has
been requested,      but no immediate        response is forthcoming,        article 3174&2 provides
that treatment      shall be ordered only with the consent of three “medical doctors, at
least one of whom must principally be engaged in the private practice of medicine.”
The question is whether the legislature,           by specifying “medical doctor” in this instance
and “physician licensed by the State Board of Medical Examiners” elsewhere,                    intended
to distinguish between the two. In other words, may a dentist, although not licensed by
the Board of Medical Examiners,              nevertheless      qualify as a “medical doctor” and
thereby be eligible to provide consent to treatment               or services in this instance?       We
think not.      Although a plausible argument            can be made that the use of different
terminology     indicates   that “medical doctor” should be interpreted             more broadly than
“physician licensed by the State Board of Medical Examiners,” we do not think a court
would bold that the term is broad enough to include dentists, at least for purposes of
article    3174b-2.     Physicians      end dentists   sre governed       by different    agencies   and
regulated     by different     statutes,   and we think this evidences            a clear intention    to
distinguish    between them.         Moreover, we can see no reason why dentists should be
eligible to provide consent in this instance when they clearly may not provide consent
when IX) guardian or responsible relative exists.              Thus, we conclude that dentists are
not “medical doctors” within the meaning of article 3174b-2, and that they may not
consent to dental treatment         under the circumstances       described above.

        This does not mean that article 3174b-2 renders superintendents                 powerless    to
provide necessary        dental treatment    to patients and residents of their facilities        when
consent to treatment          has not or cannot be obtained.         To construe article 3174&2 in
such a manner es to prevent treatment               from being administered        because there is,
effectively,     no one to provide consent would be, in our judgment,            to reach an unduly
harsh result.       Article 3174b-2 directs the Department            of Mental Health end Mental
Retardation       to “provide or perform       recognized     medical treatment       or services    to
persons      admitted     or committed     to its care,” and we think medical              treatment
necessarily     embraces dental care. See, 3,          Little v. Little, 576 S.W. 2d 493 (Tex. Civ.
App. - San Antonio 1979, no writr               When dental services        are deemed necessary,
therefore,     it is our opinion that the superintendent         may provide such care with the
consent of three physicians licensed by the State Board of Medical Examiners, so long
as the other provisions of article 3174b-2 are met, even though the services themselves
would be performed by dentists.

                                           SUMMARY

                 Article 3174b-2, V.T.C.S., prohibits dentists from consenting
              to dental treatment  of persons under the care of a Department




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        Honorable    John J. Kavanagh   - Page Three     (NW-248)




                     of Mental Health and Mental Retardation       facility. Dentists
                     may provide dental treatment    or services,  however, provided
                     consent is obtained from three physicians licensed by the State
                     Board of Medical Examiners end all other conditions of article
                     3174b-2 are satisfied.




                                                       MARK          WHITE
                                                       Attorney     General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY 111
        Executive Assistant Attorney    General

        Prepared    by Jon Bible
        Assistant   Attorney General

        APPROVED:
        OPINION COMMlTTEE

        Susan Garrison, Acting   Chairman
        Jon Bible
        Rick Gilpin
        Barbara Marquardt




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