Bon.~B. Carl Rdlder, Secretary~
Texas State Board of Dental Examiners
Nixon Buildlng~
Corpus Christi, Texas
Dear Sir:               OplnLon No. O-2058
                        Re: (a) Whether or not bperation of
                             chain dental offices under facts
                             set forth Is in violation of the
                             laws of this State.
                             (b) Whether 6r not the dentist in
                             question is violating laws regulat-
                             ing the practice of dentistry.
       Xe have for reply your letter of March 7, 1940, stippl&
mented by y-ourletter of April 2, 1940;reque.+.tlngthe opinion
of this department on the above stated questions.
       The facts underlying your opinion request are restated
as follows:
        The dentist in question l"esidingin Los Angeles, Carl-
fornia, and maintaining an office there holds ti"licenseetititl-
 ing him to practice dentstry in the state of'.Texa.%.Hitiad-
dress given In registering with the Texas-State Board of Delitiil
Examiners is an office address at Houston, Texas. Two offIces
are maintained under the name of this dentist in Texas - the
one In Houston and one located in Dallas. These Texas offices
are actually operated by a former wife of this dentist-and his
daughter. We shall hereafter refer to the dentfst in question
,as Dr. X.
       Using the medus operandi of the Dallas office as an ex-'~
ample, we find that the daughter of Dr. X is in charge. She is
not a licensed dentist, but employs licensed dentists to make
an~examlnatlon of patients and do the actual dental work. Thfs
licensed dentist examines patients and informs her (the daughter)
of his findings, after which she tells the patients what she
thinks should be done, the price of the work and makes arrange-
ments for payment. The licensed dentist then does the work as
directed.
       As to the outward appearance of the offlce, the name   Of
                                                              ?.




Hon. B. Carl Holder, Secretary, page 2          0-2058



Dr. X Is prominently displayed on the outside of the building.
On one of the doors leading to the office are the following
names:
         DOCTOR X
         Dr, A
         Dr. B
         Dr. X
       The actual dental~work performed In this office is done
by another doctor, Dr, Y, employed by the daughter of Dr. X.
Dr. A and Dr. B are no longerconnected with the office, having
left a short time ago. .Dr. X, of course, In in California, and
is very seldom, If ever, In either of his Texas offices.  The
exact amount of time spent in the Texas offices and ~whether-on
these occasions any actual dental practice is done by Dr. X, Is
not known. Moreover,  the exact facts as to the operation of
the Houston office are not given, yet we shall assume that the
plan of-operatron 1s similar to that of the Dallas office.
         On the basis of these facts you ask the following ques-
tions:
       (a) Are the maintenance of chain dental offices (more
than two) prohibited by the laws of this state, and, if so, are
chain dental offices being so maintained under the facts set
forth?

                                    . . of any of the laws in
       (b) Is Drp-X acting in violation
                               ^_
Texas regulating the practice OS oenlstrg?
       The power of the Legislature to regulate the practice of
dentistry and kindred professions and to Impose reasonable re-
strlctions upon persons following this calling ls.well'estab-
llshea by the courts of last resort in this State, as well as
the Supreme Court of the United.States. Pistole v. State, 69
Texas Crfm. Rep. 127, 150 S.W. 618; Sherman.et al v. State,Board
of Dental Examiners et al (C.C.A.~1938), 116 S.W. (2d) 843
writ refused; Semlar v.'Oregon State Board, 148 Ore. 50,, 34
Pac. 311; Id. 294 U.S. 608, 55 Sup, Ct. 570, 97 L. Rd. 1086.
The power is Inherent in the State under Its police power to
protect and safeguard the Ilfe, health, morals, and general wel-
fare of its Inhabitants; "and the vocation Itself being subject
to.regulation, so are all of its incidents."
       The answer to the questions propounded in your letter
involves an interpretation of ch. 7 of Title 12 .of the Penal
Hon. B. Carl Holder, Secretary, page 3           0-2058



code of this State and particularly H.B. No. 36, ch. 501, Acts
of 1937, 45th Leg., p. 3046. Section 1 of this Act amends Art.
752 of the Penal Code to read as follows:
      "Article 752. It shall be unlawful for any
   person or persons to practice dentistry in this
   State under the name of a Corporation, company,
   association, or trade name; or under any name ex-
   cept his own proper name, which shall be the name
   used in his license as issued by the State Board
   of Dental Examiners. It shall be unlawful for any
   person or persons to operate, manage, or be em-
   ployed in any room, rooms, office, or offices where
   dental service is rendered or contracted for under
   the name of a,corporatlon, company, association,
   or trade name, or in any other name than that of
   the legally qualified dentist or dentists actually
   engaged in the practice of dentistry In such room,
   rooms, office or offices; provided, however, this
   shall~not prevent two or more legally qualifl~ed
   dentists from practicing dentistry 'Inthe same
   offices as a firm, partnership, or as associates
   in their own names-as stated in licenses 'Issued
   to them. Provided, however, that any dentist
   practicing under his own license may be~employed
   by any person, firm, or partnership pract,icFng
   dentistry under licenses issued-~tothem. Bach-
   aay of violation of this Article shall constitute
   9 separate offense."
        Section 6 of House Bill 36 (Article 752~) reads   as   fol-
lows:
      "This Act shall not be Intended to prohLblt
   any duly authorized, licensed and registered
   dentist 'from.malntainingone additional office in
   any town or city other than the town of hLs resi-
   dence .'I
       Section 4 of House Bill 36 (Article 752c, Vernon's An-
notated Penal Code) reads as follows:
       "The State Board of Dental Examiners shall
    be, and it shall be their duty, and they are
    hereby authorized to revoke, cancel or suspend
    any license or licenses that may have been ls-
    sued by such Board,' if~ln the opinion of a
    majority of such Board, any person or persons
    to whom a license has been issued by said Board
    to practice dentistry in this State, shall have,
                                                        . -




Hon. B. Carl Bolder, Secretary, page 4         0-2058



    after the issuance of such license, violated any
    of the provisions of the Statutes of the State
    of Texas relating to the practice of dentistry
    in this State, or any of the provisions of Chap-
    ter 7, Title 12 of the Penal Code of the State
    of Texas, or any amendments that may hereafter
    be made thereto * l * *'
       Article 754 of the'Pena1 Code makes the violation of
       the pr~ovlslonsof chapter 7 of Tltle 12 of the Penal
an'y~'of
Code a misdemeanor and reads as follows:
       "Any person who shall violate any provi-
    sion of this Chapter shall be fined not less

    from one to SIX months'or both. Bach day of
    such violation shall be a separate offense."
    -~.Section 6 of Article 752c, Vernon's Annotated Perial'Code,
supra, is the only section of the statutes.touchlngupon.the
'questionof maintaFning more than one office. -Butwe .must
direct ~your attention to the fact that said Sectlon 6.does.not
in terms prohibit anything, nor does Rouse BXll 36, Ctiapter~~501,
Acts~of 1937, 45th Legislature, page 1346, provFde a pena'lty
for the ~'violatlonof,section 6.  In this Sectioti~thelegisla-
ture simply provided a guide for and a limFtati.onupon the .
oonstructloiiof other sections of chapter 501, Acts of 1937,
85th Legislature.
       As forcefully stated by Chief Justlce~Smith in Sherman
v;"State Board of-Dental Examiners (C.C.A. 1938) 116 S.W. (2d)
843, writ refused,

      "Section 6 directlv attacked, does not
   within Its ow; vrovlslons restrict licensed
   dentists in the conduct of their vocation.
   The provision is nermisslve, rather than re-
   strictive, and certainly does not by Its own
   terms come under the ban of either of the
   Constitutional guaranties Invoked by plaintiff."
    (Underscoring ours)
        For the reasons set forth and under the authorlty'of Sher-
man v* State Board of Dental Examiners, supra, we hold, and you
are respectfully advised, that while other provisions of chapter
7~ of Title 12 of the Penal Code of this State (for example, Art.
752, as amended) might subject those operating, maintaining or
employed in multiple offices operated under the name of one
dentist to prosecution for a misdemeanor, there are no provi-
Hon. B. Carl Holder, Secretary, page 5           0-2058



si'onsof our Penal Code In terms prohibiting the maintenance of
chain d6nttil~offlces;and we cannot as a matter of law condemn
the practices set forth on that score.

       Your second question Is whether or not Dr. OX is actllig
in violation of any of the laws of Texas regulating the practice
of dentistry under the facts set forth In your letter.L,In this
corinectioni#e call your attentlbn flrst.to.Article 752a, Ver-
non’s Annotated Penal Code, which reads, in part, as follows:

       "It shall be urilawfulfor any person + +~*
    to fraudulently employ any person or persons-to
    obtain or solicit patronage * * *"
       Next, tiecall~your'atteiitionto Article 752b, Vernon's
Annotated Penal Code, which reads, In part as follows:
       "It shall be unlawful for any persdh *'* *'~'
    to engage in or b&guilty of any~unprofessional
    conduct in the practice of d'entliitry,
                                          directly
    or lndlrectly. Any 'unprofes'slonalconduct' "as
    used herein, me&ui%and includes any one or more
    of the following acts, to-wit:

       (a) employing 'Cappers' or-Steerers' to
    solicit and or obtain business; * * *

      ('cl employing directly or indirectly or
   Permltting'any unlicensed person to perform
   dental servlces'upon any pers0n.W any room or
   office under his or her control; * * *
            employing any person or persons to ob;
    taip)contract for , sell or solicit patronage,
    zr*m$ng   use of free publicity press agents;

       ,It may be noted that In each instance under the articles
above quoted the prohibition is against emnloslng someone or as
in AFtlcle 752b (c) permitting an unlicensed person to perform
dental ~servlcesin a room or office under the control of the
dentist.
       Of course, Dr. X's daughter, under the facts, may be
found to be "performing dental services" without a license wlth-
in the ineanlngof subdlvislon (C) of Art. 75213,Vernon's Annota-
ted Penal Code, for Article 754a provides that,
       "Any person shall be regarded,as practicing
    dentistry within the meaning of this Chapter:
Hon. B. Carl Holder, Secretary, page 6         O-2058


       *+***

       3.  Any one who owns, maintains or operates
    any office or place of business where :heem-
    ploys or engages, under any kind of contract
    whatsoever, any other person or persons to
    practice dentistry as above defined, shall be
    deemed to be practicing himself and shall hlm-
    self be requLred tombe duly licensed to prac-
    tice dentlstry'as hereinabove deflned, and
    shall be subject to all of the other provisions
    of this Chapter, even though the person or per-
    sons so employed or engaged by him shall be
    duly licensed to practice dentistry as hereln-
    above defined."
       However, it has not been established as a matter of
fact whether Dr. X actually employs his daughterin the Dallas
office orhls ex-wife in the Houston office, 'orwhether they
themselves own and operate.those offices; simply ustng his
name as a stimulant for trade. Moreover, ~lthas not b-eenes-
tablished whether or not these offices are actually under his
control. Consequently-as to these Articles, while It may
develop that Dr. X is acting In'vloIation thereof, theanswer
wlll~~ultimately~dependupon a determinationof thenunderlying
facts - a determination ascertainable only by a judge or jury.
      .We-call your attention.also to Sectlon 1 of H. B. 36,
Acts 1937, ch. 501, 45th Leg., ProvldFng,
        "It shall be unlawful for any person to
    operate; manage * * * any room, rooms, office
    or offices where-dental service Is rendered
    or contracted for under * * * a trade name,
    or' in any mothername than that of the legally
    qualifled~dentlst or dentists actually engaged
    Fn the practice of dentistry in such room,
    rooms, office, or offices; * * *"
       In order for It to be established that Dr: X is acting
in violation of this provision of the Penal Code, It must be
determined first that he Is operating or managing the office
in Qu~estion,and second, that dental services are being render-
ed and contracted for under a trade name or a name other than
that of the legally qualified dentist actually engaged in the
practice of dentistry there. The determination of whether or
not this is happening Is also a determination which only a
judge or jury can make.
       We have, therefore, answered your first question in the
Hon. B. Carl Holder, Secretary, page 7         o-2058



negative and your second by calling your attention to pertinent
provisions of the Penal Code which Dr. X may be found guilty
of violating under the facts as they may develop. -Please note
that we have confined our opinion strictly to the questions
asked and have not expressed our views u@on whether or not
Dr. X's daughter or ex-wife or~~thelicensed dentists employed
by them may be violating the law.
                              Yours very truly
                           ATTORNEYGENERAL OF TEXAS

                              By s/Walter R. Koch
                                   Walter.~R.Koch
                                   Assistant
                              By s/James D. Smullen
                                   James D. Smullen
JDS:JM:wc

APPROVED APR I%, 1940
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS

Approved Opinion Commlttee By s/BWB Chairman
