   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN      CORNYN




                                                    May 23,200l



Ms. Lois Ewald                                               Opinion No. JC-038 1
Executive Director
Texas Optometry Board                                       Re: Whether an “optometric glaucoma specialist”
333 Guadalupe Street, Suite 2-420                           may use that designation as his sole professional
Austin, Texas 78701-3942                                    title (RQ-0329-JC)


Dear Ms. Ewald:

         You ask whether optometric glaucoma specialists, a new class of licensees of the Texas
Optometry Board (the “Board”) created by the Seventy-sixth Legislature in House Bill 105 1, may
use the phrase “optometric glaucoma specialist” as an exclusive professional designation.    We
conclude, in light of section 104.003(f) of the Occupations Code, that they may not use that
designation exclusively.

        House Bill 1051 amended article 4552-l .03 of the Revised Civil Statutes, the Texas
Optometry Act, to permit certified therapeutic optometrists “to treat certain diseases and conditions
with specific classes of pharmaceuticals and [the bill] sets forth conditions under and protocol for
which a therapeutic optometrist may treat glaucoma.” HOUSE COMM. ON PUBLIC HEALTH, BILL
ANALYSIS, Tex. H.B. 1051, 76th Leg., R.S. (1999). It amends article 4552-1.03 by adding, inter
alia, subsection (r), which provides in relevant part that “A therapeutic optometrist certified under
this subsection shall be known as an optometric glaucoma specialist.“’

       Section 104.003(f) of the Occupations                 Code requires       that all licensees      of the Texas
Optometry Board designate themselves as:

                                 (1) optometrist;



           ‘In a nonsubstantive  revision, article 4552- 1.03 of the Revised Civil Statutes was repealed and recodified in
the Occupations Code. In the same session, subsection (r) was added to article 4552-1.03 by the Seventy-sixth
Legislature.    See Act of May 13, 1999,76th Leg., R.S., ch. 388, 5 6(a), 1999 Tex. Gen. Laws 1431,2440, repealing
article 4552-l -03; see also Act of May 20,1999,76th     Leg., R-S., ch. 733,s 2,1999 Tex. Gen. Laws 3342,3344, adding
subsection (r). Section 3 11.03 l(c) of the Government Code provides, in part, that the repeal of a statute by a code does
not affect an amendment of the statute by the same legislature which enacted the code and that the amendment is
preserved and given effect as part of the code provision. TEX.GOV’TCODE ANN. $3 11.03 1(c) (Vernon 1998). For text
of subsection (r), see note following section 35 1.160 of the Occupations Code.
Ms. Lois Ewald     - Page 2                         (JC-038 1)




                              (2) doctor, optometrist:

                              (3) doctor of optometry;     or

                              (4) O.D.

TEX.   Oct. CODE ANN. 9 104.003(f) (Vernon 2001).

          A brief submitted by the Board suggests that subsection (r) and section 104.003(f) are in
conflict, and that therefore this office must either harmonize them by construing subsection (r) as
implicitly adding another designation to the list in section 104.003(f), or conclude, if we find the
statutes irreconcilable, that subsection (r) controls as both more specific and later in time than section
 104.003(f).2 In our view, however, following the argument of Attorney General Opinion JM-1279,
there is no conflict between the two statutes. A licensee of the Optometry Board can without
difficulty conform his or her behavior to the mandate of both statutes. Such a licensee accordingly
remains bound by section 104.003(f), and cannot use “optometric glaucoma specialist” exclusively
as a professional designation.

         In Attorney General Opinion JM- 1279, the question presented was whether by rule the Board
of Chiropractic Examiners might permit chiropractors to use the title “chiropractic physician.” In
determining that such a rule was permissible so long as the phrase was employed in addition to one
of the terms or phrases required by the statutory predecessor of section 104.003 of the Occupations
Code, this office opined:

                 We do not construe article 4590e, [Revised Civil Statutes], to set
                 forth an exclusive list of titles that those professionals regulated by
                 the statute may employ. Rather, we construe the statute to set forth,
                 in effect, minimum        requirements      with which the regulated
                 professionals must comply.         In other words, we construe [it] to
                 require the use by a regulated professional of one of the designations
                 set forth in the section, but it is silent with regard to whether such a
                 licensee may employ any additional designation.

Tex. Att’y Gen. Op. No. JM-1279 (1990) at 4-5.

         Similarly, nothing in the language of subsection (r) requires an optometric glaucoma
specialist to be known only, solely, or exclusively as an “optometric glaucoma specialist.” The
statute requires that such a practitioner “shall be known as an optometric glaucoma specialist,” but,
in the words of Attorney General Opinion JM- 1279, “is silent with regard to whether such a licensee
may employ any additional designation.” Id. at 5.


         ‘Brief from Chris Kloeris, Legal Counsel, Texas Optometry Board, to Ms. Susan D. Gusky, Chair, Opinion
Committee, Office of the Attorney General, at l-2 (Jan. 9,200l) (on file with Opinion Committee).
Ms. Lois Ewald   - Page 3                       (JC-0381)




        Accordingly, nothing in law or logic prevents a licensee from obeying both of these
independent statutory mandates, and there is no conflict for this office to harmonize. That being the
case, an optometric glaucoma specialist may not violate the directive of section 104.003(f) of the
Occupations Code by exclusively so styling him- or herself as such, but must in addition use one of
the four designations that statute requires.
Ms. Lois Ewald   - Page 4                    (JC-0381)




                                    SUMMARY

                       An optometric glaucoma specialist may not use the phrase
              “optometric glaucoma specialist” exclusively as a professional
              designation.

                                           Yo    s very truly



                                         4 (
                                           JOHN
                                                 OL-y-

                                                    CORNYN
                                           Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
