Untitled Texas Attorney General Opinion ( 1995 )

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DAN MORALES
ATTORNEY
GENERAL March 21.1995
Bruce A. Levy, M.D., J.D. Opinion No. DM-336
Executive Director
Texas State Board of Medical Examiners Re: Whether the Texas State Board of
P.O. Box 149134 Acupuncture Examiners may promulgate a
Austin, Texas 78714-9134 rule authorizing acupuncturists to hold
themselves out as “doctor,” “Oriental
Medical Doctor.” or ‘O.M.D.” and related
questions (RQ-748)
DearDr.Levy:
You ask whether the Texas State Board of Acupuncture Examiners (the “board”)
may promulgate a rule authorizing acupuncturists to hold themselves out as “doctor,”
“Oriental Medical Doctor,” or “0.M.D.“’ Conversely, you ask whether the board may, by
rule, limit acupuncturists’ use of such designations. Fiiy, you ask if regardless of
whether the board promulgates rules approving or limiting the titles an acupuncturist may
use, an acupuncturist may denominate himself or herself as a “doctor,” “Oriental Medical
Doctor,” or “O.M.D.”
Your questions tirst require that we examine subchapter F of the Medical Practice
Act, V.T.C.S. art. 4495b. The legislature added subchapter F to the Medical Practice Act
in 1993, see Act of May 30, 1993, 73d Leg., ch. 862, 8 37, 1993 Tex. Sess. Law Serv.
3377,3403-06, to provide “an orderly system of regulating the practice of acupuncture.“2
V.T.C.S. art. 449Sb, 8 6.01(2). Subchapter F creates the board, see id. 5 6.04(a), and
provides it with certain powers and duties, see id. 5 6.05. Specifically, “[slubject to the
advice and approval of the” Texas State Board of Medical Examiners, the board is
required to, among other things, “establish qualiications for an acupuncturist to practice
‘We nndemand “O.M.D.”to be an abbreviationfor the tam “OrientalMedicalDoctor.”
aForth poqmss of sobchaptu F, “acupmchue”meats:
(A) the insertion of an acupraaun noodle and the application of
mo``ontospecificareasoftbchumanbodyaraprimarymodcofthcm~to
tnat and mitigates humancondition;and
(B) the administmtion of thamd or elcctricsl tttatmcnts or the
rcconunendstionof dietaryguidelines, energyflow exercise,or dietaryor h&al
sopplcmcntsin conjunctionwith the treatmentdescribedby Paragraph(A) of this
auhdksion.
V.T.C.S. art.4495b. 5 6.02(l).
Bruce A. Levy, M.D., J.D. - Page 2 (DM-336)
in this state,” uestablish minimum educational and training requirements necessary for the
acupuncture board to recommend that the medical board issue a license to practice
acupuncture,” and “recommend additional rules as are necessary for the administration and
enforcement of this subchapter.” Id. 5 6.05(a)(l), (2), (9). The statute explicitly with-
holds from the board the power to make rules independently. See id. 4 6.05(b).
Subchapter F &rther prohibits any individual from practicing acupuncture in the
state unless the individual has obtained a license from the Texas State Board of Medical
Examiners.3 Id. 8 6.06. Under s&ion 6.1 l(a)(7), the Texas State Board of Medical
Examiners may deny an application for a license or, a&r notice and hearing, suspend,
probate, or mroke a lice&e if the applicant or licensee holds himself or herself out “as a
physician or surgeon or any combination or derivative of [these] terms” unless the Texas
State Board of Medical Examiners has licensed the individual as a physician’ or surgeon.
An administrative agency may promulgate rules when a statute expressly
authorizes it to do so or when implied authority is necessary to accomplish the purpose of
the statute. Attorney General Opiion JM-1279 (1990) at 1 (citing Gerti v. Oat C&f&v.
&Loan Ass’n, 432 S.W.2d 702 (Tex. 1968); GuljLund Co. v. Atlantic Refining Co., 13 1
S.W.Zd 73 (Tex. 1939)). An agency may not, however, adopt rules that are unreasonable
or that exceed the powers delegated to the agency. Id. (citing Gerti, 432 S.W.2d 702;
Raihad Comtn’n v. Sterling Oil & Refining Co., 218 S.W.Zd 415 (Tex. 1949)).
Moreover, an agency may not adopt rules that are contrary to law, even though the matter
is within the agency’s general regulatory field. See Stale v. Jackson, 376 S.W.2d 341,
344-45 (Tex. 1964). Although article 4495b, subchapter F expressly precludes the board
from promulgating rules, we believe its power to recommend rules is limited in accordance
with these principles.
Article 4495b, section 6.05(g) provides the board with broad authority to
recommend to the Texas State Board of Medical Examiners such rules “as are necessary
for the administration and enforcement of’ subchapter F. We believe this authority is
broad enough to permit the board to recommend to the Texas State Board of Medical
Examiners rules authorizing acupuncturists to use certain titles. Bur cfl Letter Opinion
94-14 (1994) at 2 (cautioning that Polygraph Examiners Act, V.T.C.S. article 4413(29cc),
“does not appear to permit licensed polygraph examiners to refer to themselves as
‘licensed psychophysiologists”‘). Conversely, we believe the board may recommend a rule
‘Under subchapter F, tbc board does not issw lianrcs. Rathcr,thohcantmkcs
mmwdationson completedapplicationsfor a licenselo practiceacuplnaurr tothcTcxasStateBard
ii%cdical Examha, which may isw such Ii-. Id. 65 6.05(a)(6), 6.10(a).
‘Seaion 6.020 ddinos ‘physician” as “a licensee of the Texas State Board of Medical
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Bruce A. Levy, M.D., J.D. - Page 3 (DM-336)
limiting acupuncturists’ use of such titles.5 C$ Attorney General Opinion JM-1279 (1990)
at 3 (concludiig that V.T.C.S. article 4512b, section 4(d) authorizes Texas Board of
Chiropractic Examiners to use title “chiropractic physician”). Of course, the board may
not recommend a rule authorizing an acupuncturist to use the title “physician” or
“surgeon” or a combination or derivative of those terms. See V.T.C.S. art. 4495b,
5 6.1 l(a)(7). Furthermore, the board may not recommend a rule that is contrary to other
law. Liiewise, regardless of whether the board promulgates rules approving or limiting
the titles an acupuncturist may use, an acupuncturist may not select a designation that
contravenes article 4459b, section 6.1 l(a)(7) or any other law. You ask that we
particulsrJy consider the impact of V.T.C.S. article 4512~ section 4(b)(9) and the Healing
Art Identification Act, V.T.C.S. article 4590e.
Enacted in 1993, V.T.C.S. article 4512~ creates the Health Professions Council for
the purpose of coordiiing the administrative and regulatory efforts of various medical
boards in the state, inch&g the Texas Optometry Board, the State Board of Veterinary
Medical Examiners, and the Texas State Board of Medical Examiners.6 V.T.C.S. art.
4512~ 5 l(a), (b); see Act of May 26, 1993, 73d Leg., ch. 669, art. 1, 1993 Tex. Sess.
Law Serv. 2485, 2485-88. Article 4512p, section 4(a) declares unlawful and subject to
action by the appropriate health hcensing agency as a ground for revocation or denial of a
license “[a]dvertising that is false, misleading, or deceptive or that is not readily subject to
veriftcation.” Among the acts subsection (b) of that section lists as constituting false.,
misleading, or deceptive advertising or advertising that is not readily subject to verification
is Wvertising that . . advertises or represents in the use of a professional name a title or
professional identification that is expressly or commonly reserved to or used by another
profession or professional.” Id. 8 4(b)(9).
‘We understand,for example, that the boardrecentlyhas pronmlgateda mle adoptingthe title
“LicensedAcopunctmist”or “L.Ac.”
‘%u attorneyqnesenting UKTexas AcuponcbueAssociationcammenu in his brief that article
4S12p, V.T.C.S., fails to defii the term“healthprofessions”and suggestswhat,therefore,acupunchvists
are not within Ihe scope of article4512~. We disagree. The He& ProfessionsCoon& is composedof
rqmsenta~ of each of 14 differe-ntbodies the Texas Board of ChiropracticExamioea; the State
Board~DcntalExaminas;tbcTrrasOptomctryBoard;theStatcBoardofPharmacy;thcTexasState
BoardofPod&yE-; the StateBoardof Veknary MedicalE-; the Texas StateBoardof
IHedicalExamiws; theBoardofNor6eExsmino~; the Texas StateBoardof Examinersof Psychologists;
the Boardof VocationalNorse Examioers;the entity that tqulates the pmetiee of physical thempy;the
entitythat regulateathe pmcticeof occupationaltheraw, the health licensing division of the Depamnent
of Public Health, aad the governor‘I of&. V.T.C.S. an. 4512~; p l(b). la OUT opinion, article4512~
V.T.C.S., applis to all individualslicensedand regulatedby the first 13 of the above-lisledagencies. See
id. $5 3(a) (rapirhg Health Professions carncil to csWi.41 training programfor ?he membersof the
hcards and eommis.sions”listed), 4(a) (authoting “appropriateh&h licensing agency” to sanction
individoalswho engage in @se, misleading,or deceptiveadverdsing). The Boardof Medicine licenses
and K~UWS acupmcturists. See V.T.C.S. art.4495b. $0 6.0X9), .06. Con?eqoenIly,aarpuncturislsare
within the aeopeofarlicle 4512~.
p. 1781
Bruce A. Levy. M.D., J.D. - Page 4 (DM-336)
The Healing Art Identification Act, V.T.C.S. art. 4590e, provides certain titles that
an individual licensed to practice the healiig art7 must use. V.T.C.S. art. 4590e, 39 3-4.
Healing art identifications
Sec. 3. Every person licensed to practice the healing art
heretofore or hereat& by either the Texas State Board of Medical
Examiners, the State Board of Dental Examiners, the Texas Board of
Chiropractic Examiners, the Texas State Board of Examiners in
Optometry, the State Board of Chiropody Examiners and the State
Board of Naturopathic Examiners shah in the professional use of his
name on any sign, pamphlet, stationery, letterhead, signature, or on
any other such means of professional identification, written or
printed, designate in the manner set forth in this Act the system of the
healing art which he is by his license permitted to practice. The
following are the legally required identitications, one of which must
be used by practitioners of the healing art:
(1) If licensed by the Texas State Board of Medical Examiners
on the basis of the degree Doctor of Medicine: physician and/or
surgeon, M.D.; doctor, M.D.; doctor ofmedicine, M.D.
. . .
Other persons using title “doctor”
Sec. 4. Any person not otherwise covered by the provisions of
this Act, and not given herein a means of identification shag, in using
the title “doctor” as a trade or professional asset, or on any sign,
pamphlet, stationery, letterhead, signature, or any other manner of
professional identification, designate under what authority such title
is used, or what college or honorary degree gave rise to its use, in the
same manner as practitioners of the healing arts are required under
the Act to identify themselves.
An individual who fails to comply with the manner of identification specified in the
Healing Art Identification Act is guilty of a misdemeanor and subject to punishment. Id.
§ 6.
We understand you implicitly to ask whether, by calling oneself “doctor,”
“Chiental Medical Doctor,” or “O.M.D.,” an acupuncturist is subject to civil penalty under
article 4512~ section 6. In our opinion, we must analyze the use of the title “doctor’
7Anicle 459Oe, section2 de&es “the healing art” to include-any system,nvatment, eperatioa
diagncsis,prescriptionor practicefor the ascacainment,cure, relief, palliation, adjustmentor correction
of any human disease,ailment, deformity,injury or unhealth or abncrraalphysicalor mental condition.”
We assumeform of this opinionthat sn acupunaurin is a practitionerof the healing an.
p. 1782
Bruce A Levy, M.D., J.D. - Page 5 (DM-336)
separately gem the use of the titles “Oriental Medical Doctor” and “O.M.D.” because the
Healing Art Identitication Act explicitly discusses a healing art practitioner’s use of the
title “doctor,” while no statute similarly discusses the other two proposed titles. In regard
to the use of the title “doctor,” you suggest an inconsistency between article 4512~ and
the Healing Art Identitication Act. Pumuant to the. Healing Art Identification Act, an
individual licensed to practice the healing art whom the Healing Ait Identitication Act
does not give a specitic title may use the title “doctor” if the individual designates “under
what authority such title is used, or what college or honorary degree gave rise to its
use.. . .* On the other hand, you indicate that an acupuncturkt’s use of the title
“doctor” might be perceived as false, misleading, or deceptive advertising under article
4512p, section 4(b)(9) and thus subject to civil penalty under article 4512p, section 6.
Comcidentally, one of the witnems who testified before the Senate Committee on
Health and Human Services about the bii that, now enacted, is codified as article 4512~.
V.T.C.S., spoke about a similar inconsistency involving what is now article 4512~. se&on
4(b)(9). Hearings on S.B. 674 Before. the Senate Comm. on Health & Human Servs., 73d
Leg. (Apr. 30,1993) (tape available from !3enate Staff Saviccs) (testimony of Des Taylor,
camseI for Texas Chimpm&c Assodation). The witness rekred to Attorney General
Opinion JM-1279, in which this office consttued section 3 of the Dealing Art
IddfiCatiOllACttOp&lllitIiCUlSeCS of the Texas Board of Chiropractic Eraminers to use
thetitkuchiroprsdicp``“solollgasthe``alsoepgloyadoneof~etams
listed in the Healing Art Identification Act Id.; see .ako Attorney General Opiion
m-1279 (1990) at 6. The witness suggested that a &mpractor who uses the tetm
“cfriropracticphysician”~bearbjedtoproseartion~falsqmisleading,ord~
whdsing under the proposed section 4(b)(9) of article 4512p.s Hearings on S.B. 674
BeforetlteSenateComm.onHealth&HumanSavs.,supra. Thekgiskumdidnot
substaativeh, amend the proposed section 4(b)(9) subsequent to the witness’s testimony.
Wedonotbelim,howeva,thatapractitionaofthehealingartwhousesthetitlc
“dodorinaccordancewiththsHeelingArtIdentificationActmaybeguiltyoffalse,
m&ding, or deceptive adverbsing under article 4512~. section 4. Established rules of
statutory construction constrain us to construe statutes harmoniously ifit is possible. See
Postell v. Skzte, 693 S.W.2d 462,464 (Tex. Grim. App. 1985) (quoting Gzuser v. Scaie.
%Venutethatthed&ic&cemtofTravisCumtyrweatlydcdanditwahdamletheTexasBmnl
otchimpwctic~promulgatcd,~eTaasBoard~chiropraaic~19TarRcg.~33.
o&pted 19 Tex F&g.4951(1994) (lobe cdi6ed as 22 TALC.0 80.2(a)(s), (6)), on the gmd ibat, as a
msnu of lsw, the Bad of chiroprectic Exemhu~ m its authority in passing the rule.
Clliropocric Sbc ‘y Y. Texas Bd. of Chimpmdic Ewniturs, No. 94-08315 (D&t. Ct. of Travis County
2OOthh1dicialDistofTexas,Dec 13,1994). ThemleaulhobdalicmseofthcBoardofchiroprsctc
P u,usetbetitlcschimprado,dodordchimpractihD.C,doaor.D.C,chimpracticpbysidaa.
oranyrkMtiveofthefustfourtitlc.s. TexasBcdofchiroprpd~Examinm. 19Tex.Rcg.2603.
adoped 19 Tcx Reg. 4951(1994).
P. 1783
Bruce A Levy, M.D.. J.D. - Page 6 (DM-336)
624 S.W.2d 669 (Tex. App.-Beaumont 1981, no writ)); 2B NORMANJ. SINGER,
STAIUTESANDSTATUT~RY~ONSIRUCTTON``~.``, at229-30(5thed.1992).
We believe we can construe article 4512~ section 4(b)(9) harmoniously with
section 4 of the Healing Art Identitication Act. Article 4512p, section 4(b)(9) does not
proscribe the use of a tide that the Healing Art Identitication Act explicitly authorims a
pmctitioner to use. gather, we construe article 4512~ section 4(b)(9) as simihu to article
4561.10(19). V.T.C.S., which per&ins to applicants for and individuals who hold a
Iicense to tit and diqense hearing instruments. Article 4566-1.10(19) authorizes the State
Committee of Exsminers in the Fitting and Dispensing of Hearing Instruments to deny or
revoke such a license ifthe applicant or Iicensee has used the terms
“doctor,” “audiologist,” “clinic,” %iinical audiologist,” “state
hosed,” “state certitied,” “licensed hearing instrument dispenser,”
“board certified hearing instrument specialist,” “hearing instrument
sped&t,” “ostilied hearing aid audiologist” or any other term,
abbreviation, or symbol [so as to] falsely givefl the impression that:
(A) a service isbeing provided by a person who is licensed or
has been awarded a degree or tide; or
(B)thepersonptwidingasenkhasbeenrecommendedbya
H ww or kath providerI;
Accordingly, we interpret article 4512~. section 4(b)(9) to prohii an individual
from&ningtohim-orherseIfwithatitleindicathtgIicensure whentleilldiadbnot
in fact licensed. For example, under articIe 4512p, section 4(b)(9), an individusd may not
nfa to him- or herself as an “MD.,” see MoceZnch v. Wvsong, 680 F.2d 1062 (5th Cii.
1982);apasoa~tlicensedbytheStateBoardofDartalExaminasynotsdvatisc
him-orhaselfasadentist;MdaaathletictrainanotlicensedbytheStateBoardof
Podiatry Examiners may not advertise him- or hersdf as a podiatrist. Siiy, article
4512p,rtction4(bX9)~toaaimlividualwhoto~orhasdfwitha~e
thatsuggeststheindividualhasbeenawardedadegreeortitlethatheorshedoesnot,in
fhct$ have.‘0
Section 4(b)(9) also expressly forbids the use of a tide or professional
identification “that is expressly or commonly reserwd to or used by another profession.”
(Emphasis added.) Section 4 of the Healing Art Identi6cation Act expresdy resewes to
any practitioner ,of the healing art use of the tide “doctor,” so long as the practitioner
designatestheauthoritybywhichheorsheusesthetitleorthe~Uegeorhonorarydegree
thatgaverisetouseofthetitle. Weconcludethatanacupuncturistmayusethstitle
p. 1784
Bruce A. Levy, M.D., J.D. - Page 7 (ou-336)
“doctor,” so long as the acupuncturist uses the title in accordance with section 4 of the
Healing Art Identification Act. We do not believe, however, that the board may
recommend to the Texas State Board of Medical Examiners a rule regarding an
acupuncturist’s use of the tide “doctor” under the Healing Art Identitication Act; such a
rule would not be “necessary for the administration and enforcement of’ subchapter F of
the Medical Practice Act. See V.T.C.S. art. 4495b, 5 6,05(a)(9).
We next consider whether the board may recommend to the Texas State Board of
Medical Fixminers a rule wncerning the use of the titles “Oriental Medical Doctor” and
“O.M.D.” In conjunction with this issue, we consider whether an acupuncturist may,
regardless of whether the board promulgates rules approving or limiting the titles an
acupunchuist may use, refer to him- or herself as an “Oriental Medical Doctor” or
“O.M.D.” You suggest that the use of these titles might mislead or tend to deceive the
public because of the terms’ similadty to the titles “medical doctor” and “M.D.,” which
licensees of the Texas Board of Medical Examiners use pursuant to section 3(l) of the
Healing Art Identitkation Act. You believe that the use of these terms might, therefore,
violate section 4(b)(9) of article 4512~ V.T.C.S.
As we have indicated, see supra page 4, article 4512~ section 4(b)(9) prohibits
only the use of a professional title that is “expressly or wmmonly reserved to or used by”
members of another profession. We are unaware of any other profession whose members
are expressly or. commonly entitled to use the tides ‘Qiental Medical Doctor” or
“O.M.D.” We think it more likely that an acupuncturist who uses the titles “Oriental
Medical Doctor” or “O.M.D.” violates subsection (b)(S) of article 45 12~. section 4, which
prohibits the use. of advertising that “causes wnfiuion or misunderstsndiig as to the
credentials, education, or licensure of a health care professional.” However, whether the
use of such titles is, in fact, a violation of article 4512~ section 4 is a question involving
the determination of fact issues and therefore is not amenable to the opinion process.
E.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at
3; O-2911 (1940) at 2. Of course, we tind nothing that prohibits the board from
recommending to the Texas Board of Medical Examiners a rule limiting acupuncturists’
use of the titles “Oriental Medical Doctor” and “O.M.D.”
SUMMARY
Subchapter F of the Medical Practice Act, V.T.C.S. art. 4495b,
authorizes the Texas State Board of Acupuncture Examiners to
recommend to the Texas State Board of Medical Examiners rules
authorizing acupuncturists to use certain titles. Conversely. the
board may recommend a rule limiting acupuncturists’ use of such
titles. Of course, pursuant to section 6.1 l(a)(7) of the Medical
Practice Act, the Texas State Board of Acupuncture Examiners may
not recommend to the Texas State Board of Medical Examiners a
rule authorizing an acupuncturist to use the title “physician” or
“surgeon” or a wmbiition or derivative of those terms, nor may the
p. 1785
Bruce A. Levy, M.D., J.D. - Page 8 (DM-336)
board recommend a rule that is contrary to other law. Likewise, if,
regardless of whether the board promulgates rules approving or
limiting the titles an acupuncturist may use, an acupuncturist may not
select a designation that contravenes article 4459b, section 6.1 l(a)(7)
or any other law.
A healing art practitioner’s proper use of the title “doctor” under
section 4 of the Healing Art Identitication Act, V.T.C.S. article
459Oe, does not constitute a violation of V.T.C.S. article 4512p,
section 4. An acupuncturist may use the title “doctor” in accordance
with section 4 of the Healing Art Identitication Act. However, the
board may not recommend to the Texas State Board of Medical
Examiners a rule regarding an acupuncturist’s use of the title
“doctor.”
Whether an acupuncturist’s use of the titles “‘Oriental
Medical Doctor” and “O.M.D.” would mislead or tend to deceive the
public so as to violate article 4512p, section 4, for example, section
4(b)(5), is a question involving the determination of fact issues. The
board may, of course., recommend to the Texas Board of Medical
Bxaminers a rule limiting acupuncturists’ use of the titles “Oriental
Medical Doctor” and “O.M.D.”
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fi Ass&ant Attorney General
SARAH J. SHIRLBY
Chair, Opiion Committee
Prepard by Kmberly K. Oltrogge
Assistant Attorney General
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