Untitled Texas Attorney General Opinion ( 1989 )

Clinton DeWolfe, O.D. Opinion No. JM-1081
Chairman
Texas Optometry Board Re: Whether the Texas Optometry
P. 0. Box 988 Act prohibits an optician from
Blanco, Texas 78606 giving another free pair of
spectacles, eyeglasses or contact
lenses to a person who purchases
a first pair (RQ-1667)
Dear Dr. DeWolfe:
You inform us that opticians and national laboratories
have recently offered a free pair of eyeglasses or contact
lenses to purchasers of a first pair of glasses or contact
lenses. You ask whether these "buy-one, get-one-free" sales
violate section 5.06 of the Texas Optometry Act and a board
rule based on that section. Section 5.06 provides as
follows:
It shall be unlawful for any person in
this state to give, or cause to be given,
deliver, or cause to be delivered, in any
manner whatsoever, any spectacles or eye-
glasses, separate or together, as a prize
or premium, or as an inducement to sell
any book, paper, magazine or any work of
literature or art, or anv item of merchandise
whatsoever. (Emphasis added.)
V.T.C.S. art. 4552-5.06. A person who violates any provi-
sion of the Texas Optometry Act is guilty of a misdemeanor
punishable by a fine, confinement in the county jail, or
both. V.T.C.S. art. 4552-5.19.
An Optometry Board rule provides that "no person in
this state shall give . . . any contact lenses as a prize or
premium, or as an inducement to sell any book, paper,
magazine, or any work of literature or art, or any item of
merchandise whatsoever." 22 T.A.C. 5 273.3. The rule does
not state that it is unlawful to give contact lenses as a
premium to sell an item of merchandise.
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Dr. Clinton DeWolfe - Page 2 (JM-1081)
You ask whether section 5.06 and board rule 273.3
prohibit giving a second pair of spectacles, eyeglasses, or
contact lenses to a person who purchases a first pair. If
we conclude that this practice is prohibited, you ask
whether it would also prohibit a gift of free frames or free
lenses as an inducement to sell eyeglasses, and a sale of
eyeglasses, frames, or lenses for one cent or another
insignificant amount.
Article 4552-1.02, V.T.C.S., provides in part:
The 'practice of optometry' is defined to
be the employment of objective or subjective
means . . . for the purpose of ascertaining
and measuring the powers of vision of the
human eye, and fitting lenses or prisms to
correct or remedy any defect or abnormal
condition of vision. . . T
V.T.C.S. art. 4552-1.02(l).
A "dispensing optician" or *'opthalmic dispenser" is
defined as Ita person not licensed as an optometrist or
physician who sells or delivers to the consumer fabricated
and finished spectacle lenses, frames, contact lenses, or
other opthalmic devices prescribed by an optometrist or
physician." V.T.C.S. art. 4552-1.02(5). See V.T.C.S. art.
4552-1.02(3)(A) (ophthalmic dispenser is not prohibited from
making facial measurements to dispense or adapt ophthalmic
prescriptions or lenses, products and accessories). 4E
also Williamson v. Lee Ontical of Oklahoma, 348 U.S.
486 (1955) (an optician iS qualified to grind lenses, fili
prescriptions, and fit frames).
A l%wo-for-onel~ sale of eyeglasses by a dispensing
optician may merely be a pricing policy which gives a volume
discount. We will not, however, deal with your question in
terms of pricing policies that may be adopted by persons
who sell prescription glasses. Instead, we will consider
whether a pair of spectacles, eyeglasses, or contact lenses
is an "item of merchandise" within section 5.06 of the act.
Article 4552 does not define the term "merchandise,"
but it uses this word in other provisions. When the same
word is used more than once in a statute, it will be given
the same meaning, unless a different intent is indicated.
Brown v. Darden, 50 S.W.2d 261 (Tex. 1932).
Article 4552-5.17, V.T.C.S., provides in part:
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Dr. Clinton DeWolfe - Page 3 (JM-1081)
Nothing in this Act shall be construed to
apply to persons who sell ready-to-wear
spectacles and eyeglasses as merchandise at
retail . . . . (Emphasis added.)
V.T.C.S. art. 4552-5.17. The definition of the "practice of
optometry" includes a similar provision on selling ready-to-
wear spectacles or eyeglasses as merchandise. V.T.C.S. art.
4552-1.02(l).
These provisions apply to the sale of mass-produced
items like non-prescription sunglasses and eyeglasses that
are essentially magnifying glasses in a frame. These items
are not custom-made to correct the wearer's defects in
vision and no special order is necessary to buy them.1
t'Merchandisel'has been broadly defined as "all goods
which merchants usually buy and sell, whether at wholesale
or retail; wares and commodities such as are ordinarily the
objects of trade and commerce." Black's Law Dictionary 890
(5th ed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex.
Ct. App. 1891). A "merchantl' is a "person who purchases
goods at wholesale for resale at retail.'! Black's Law
Dictionary, sunra.
"Merchandise" has also been defined more narrowly to
exclude an item which was specially prepared or modified
according to the purchaser's specifications. A Missouri
court has held that a contract to prepare and set up a
monument in a cemetery was a contract for labor and not a
contract for "goods, wares, and merchandise" within the
state's statute of frauds. Carrollton Monument Co. v.
Gearv, 240 S.W. 506 (MO. Ct. App. 1922).
1. A prior version of section 5.06 describes in some
detail the sale of eyeglasses as merchandise. A 1925 bill
amending the statute regulating optometrists provided that
"[plersons who sell spectacles and eye-glasses as merchan-
dise" meant "merchants who do not practice optometry, or
offer to practice optometry, but who sell spectacles or
eye-glasses as merchandise, after they have been selected by
their customers alone without the aid from the merchant
. . . other than the particular and complete and. ready-to-
wear spectacles or eye-glasses selected by the customer in
person from trays- or other containers. . . .'I Acts. 1925,
39th Leg., ch. 31, 5 13-c, at 151.
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Dr. Clinton DeWolfe - Page 4 (JM-1081)
Texas courts have also recognized this distinction in
defining "merchandise*' under the Bulk Sales Law, which
applies to the sale in bulk of a stock of merchandise, or
merchandise and fixtures pertaining to conducting said
business otherwise than in the ordinary course of trade.2
Hobart MFG. Co. v. Jovce & Mitchell, 4 S.W.2d 185, 187 (Tex.
Civ. App. - Fort Worth 1928, no writ). In Axtell Co. v.
Word
-, 29 S.W.2d 421 (Tax. Civ. App. - Austin 1930, no writ),
the court stated that Texas courts have construed the Bulk
Sales Act as not applying to "stock on hand used as
incidental to or in connection with labor or mechanical
skill." The court further stated as follows:
The words, 'stock of merchandise,* as used in
the statute have been uniformly construed by
our courts to be used in the common and
ordinary acceptation of those terms, and to
mean the goods, wares, or chattels which a
merchant holds for sale at retail for profit,
and which are constantly going out of the
store . . . and being replaced by other goods
without any appreciable change of character
by the labor or mechanical skill of purchaser
[i.e., of the person who purchased the goods
for resale].
29 S.W.Zd 421.
Thus ltmerchandisellin some statutes does not include
items which must be changed and adapted to the customer's
individual requirements. We believe that the Texas
Optometry Act uses "merchandise" in this sense. In section
5.17, "ready-to-wear spectacles and eyeglasses" sold "as
merchandise at retail" are mass-produced goods not adapted
to the customer's vision. This language does not include
eyeglasses and spectacles that may only be sold on a
prescription. The same definition of "merchandise" also
applies to the prohibition in article 4552-5.06, V.T.C.S.,
against giving away eyeglasses as an inducement to sell a
2. The Bulk Sales Act has been repealed and replaced
by the Uniform Commercial Code -- Bulk Transfers, Bus. &
Corn. Code ch. 6. We have cited cases which construe the
Bulk Sales Law to illustrate a possible definition of
"merchandise." We express no opinion on whether the frames
and lenses which a dispensing optician adapts in accordance
with written prescriptions would be "merchandise" within the
Bulk Transfers provisions.
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Dr. Clinton DeWolfe - Page 5 (JM-1081)
book, paper, magazine, work of literature or art, "or any
item of merchandise." Article 4552-5.06 does not prohibit
a dispensing optician or ophthalmic dispenser from giving
away a second pair of prescription eyeglasses as a means of
motivating people to have him fill the prescription for the
first pair.
Two other provisions of the Texas Optometry Act show
that a "mercantile establishment" does not include the
business premises of a dispensing optician. Article
4552-5.14 regulates the business practices of an Optometrist
"who leases space from and practices optometry on the
premises of, a mercantile establishment.1' V.T.C.S. art.
4552-5.14(a). See senerally Attorney General Opinion O-1588
(1939) (practice by optometrists in jewelry stores). It
requires the leased space to be separated from space used by
other occupants of the premises and prohibits operation of
the optometrist's practice as a department of the mercantile
establishment. V.T.C.S. art. 4552-5.14(d)-(g).
Article 4552-5.15, V.T.C.S., governs the business rela-
tionships of optometrists with dispensing opticians. It
permits a dispensing optician to lease space to an
-.
optometrist. It also provides for complete separation
between the premises of an optometrist and a dispensing
optician if both occupy space in the same building. See
Attorney General Opinion MW-292 (1981).
Both provisions deal with the leasing of premises and
with separating an optometrist's business from other types
of business conducted in the same building. The leqisla-
ture's adoption of separate provisions to govern the
optometrist's relationship to "mercantile establishments"
and to "dispensing opticians" indicates that a dispensing
optician does not operate a tUmercantile establishment."
These provisions carry out and support the distinction
between "merchandise" and prescription glasses and contact
lenses which we have found in article 4552-5.06, V.T.C.S.
Moreover, this situation appears to be an appropriate
case for applying the maxim of ejusdem qeneris. Where
general words follow specific words in a statutory enumera-
tion, the general words are construed to embrace only
objects similar in nature to those objects enumerated by
the preceding specific words. Emolovees' Casualtv Co. v.
Stewart Abstract Co., 17 S.W.2d 781 (Tex. Comm'n App. 1929).
The first version of article 4552-5.06 was adopted in
1925. Acts 1925, 39th Leg., ch. 31, at 149. We are unaware
of any history evidencing the legislature's intent in
adopting this provision, although its language suggests that
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Dr. Clinton DeWolfe - Page 6 (JM-1081)
it was directed at a practice of giving away eyeglasses with
the purchase of reading material. It is however reasonable
to assume that the legislature adopted this provision to
protect members of the public from receiving eyeglasses with
lenses that would not correct their defects in vision. The
provision of two pairs of prescription glasses for the price
of one does not violate this policy.
Since we have concluded that "buy-one, get-one-free"
sales do not violate article 4552-5.06, V.T.C.S., we need
not answer your other questions, which are contingent on a
contrary determination.
SUMMARY
The Texas Optometry Act does not prohibit
a dispensing optician or an ophthalmic dis-
penser from giving a second free pair of
prescription spectacles, eyeglasses, or con-
tact lenses to a person who purchases a first
pair. Article 4552-5.06, V.T.C.S., which
prohibits any person from giving spectacles
or eyeglasses as an inducement to sell "any
book, paper, magazine, or any work of litera-
ture or art, or any item of merchandise,"
does not prohibit "buy-one, get-one-free"
sales of prescription glasses by dispensing
opticians or ophthalmic dispensers.
JIM MATTOX
Attorney General of Texas
WARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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