Untitled Texas Attorney General Opinion ( 1953 )

I -
June 29, 1953
Hon:Austin F. Anderson Opinion No. S-60
Criminal District Attorney
.SanAntonio, Texas Be: Constitutionalityof
&Ftlcle 4590a V.C.S.
relating to the prac-
Dear Hri Anderson: tice of naturopathy.
Your letter presents the following question to
this off@6 for consideration:
1) "Is Article 4590d V.C.S., uncon-
stijztlonalas being an atiempt by the Leg-
islature to give preferenceto a particular
school of medicine in vio$ation of Texas
ConstitutionArticle XVI li31 In that it en-
ables such school to diagnose and treat human
ills without equal standardsof education and
qualifications?"
2) "If the first question is answered
in the negative, then does Article 45908
V.C.S. conflict irreconcilablywith and &y im-
plication repeal, Article 4510 V.C.S., in that
the definition of naturopathyis in fact en-
comDassed by the definition of the practice of
mediclne?n
Section 31 of Article XVI of the Constitution
of Texas reads as follows:
"The Legislature may pass laws prescrib-
ing the qualificationsof practitionersof
medicine in this State, and to punish persons
for mal-practice but no preference shall ever
be given by law co any schools of mediclne.m
Article 739, V.P.C., reads in part as follows:
"It shall be unlawful for any one to prac-
tice medicine, in any of its branches, upon
human beings wlthin the llmits of this State
who has not registered in the District Clerk's
office of every County in which he may reside,
l .
" .
Hon. Austin F. Anderson, page 2 (s-60)
The case of Dowdell v. McBride, 92 Tex. 239i 47
S.W. 524 (1898) discusses the applicationof the consti-
tutional provision in this language:
"The first portion of the constitutional
provision above quoted confers upon the legls-
lature general power to pass laws (1) pre-
scribing the qualificationsof practitioners
and (2) to punish persons for malpractice.
Continuing the same sentence, the latter part
of the provision subtractsfrom such otherwise
general power, the word 'but' being used in
the sense of 'except,'bv ProhibitinEt the leg.-
jSlatUre in such laws from inserting anY DrQ-
vision makim a distinctionin such auallflo+
tlons or Dunlshment on account of the *school
of medicl~* to which any of such 'practitlon-
ers' or 'persons'may happen to belong. The
first portion dealing solely with lqualifica-
tions of practitioners aa lpunishment,laa
there being nothing in the context to Indicate
that the latter portion was intended to em7
brace any wider range of subjects,we must give
it the effect, indicatedby Its situation and
close connectionwith what precedes, of being
merely a limitationupon the previous general
power of prescribing *qualificationsof practi-
tioners' ana lpunishments.l. . .I1 (Emphasis
Supplied)
Pursuant to this constitutionalprovision, the
Legislature enacted the Medical Practice Act (Chapter 123,
Acts 30th Leg., 1907). What is now Article 741 of the
Penal Code was a part of that legislation (Section13) and
reads as follows:
'*Anyperson shall be regarded as practic-
ing medicine within the meaning of this Chap-
ter: (1) who shall publicly profess to be a phy-
sician or surgeon and who shall diagnose, treat,
or offer to treat any disease or disorder
mental or physlcd, or any physical deformjty
or injury, by any system or method, or to ef-
fect cures thereof; (2) who shall diagnose,
treat, or offer to treat, any disease or aisor-
aer, mental or physical, or any physical deform-
ity or Injury by auy system or method or to
effect cures thereof and charge thereIor, direct-
ly or lndirec$ly,money or other compensation;
Hon. Austin F. Anderson, page 3. (s-60)
addition of the proviso clause, and the
1953 amendment.addingthe word tldiagnose".
Art. 45l0, V.C.S. is identical.)
This particular provision of the Medical Prac-
tice Act has been before the courts of this State on
several occasions. Shortly after its enactment, its con-
stitutionalitywas consideredbecause of the contention
that its enactment contravenedthe Due Process Clause of
the Fourteenth Amendment to the United States'Constitu-
tion. Justice Holmes settled that question for all time
upon reasoningwhich is unimpeachable--theimportance of
publichealth and the preservationthereof gives the State
a dominant interest which may be exercised as police power)
theGe is no inherent individualright to practice medicine.
C ins v. S Q 223 U.S. 288 (1911) affirmingEx Part
Co11 s 12l%W1 501 (Tex.Crim.1909f;Johnson v. State:
e 7 S.W. 1057 (Tex.Crim.1925).
Thus by the definition of what constitutesthe
practice of mebicine two classes of practitionersamenable
to the law are cleariy defined. One class consists of
those who publicly profess to be physicians and claim to
~effect cures, wNle the other class consists of those who
treat or offer to.treat any disease or to effect cures ana
charge for such services. It is very clear that the method
or school of medicine followed by a practitionerof e t er
class is wholly immaterial.
(Tex.Crlm.1916);pewman v. Sm ',",i
?$&k
1910).
The Medical Practice Act does not purport to regu-
late how any person shall treat a disease or disorder, but :.
~. merely requires that a person demonstratethat he is well
grounded In certain studies before he may practice medicine.
&ewis v. State, 155 S.W. 523 (TexXrim. 1913).
If the person possesses the statutory qualifica-
tions and is awarded a certificateto practice medicine, he
is free to adopt any system of medical practice he desires.
The fact that the Medical Practice Act requires a broader
- .
gg~a Hon. Austin F. Anderson, page 4 (S-60)
education
_ than normally
-.required of some particularschool
can not be urged as a dlscriminatlonagainst Sucn scnool
of medicine. Irrespectiveof the school of medicine or
system of practice followed by the practitionerof medicine
in any of these systems the general welfare of the people
demands that the practitionerbe able to readiiy detect the
presence of disease. Johnson v. State, suDsa. As stated
by Justice Holmes in the Collins case, sunra:
" He like others, must begin by
a aia&oX. It IS no answer to say that in
many instances the diagnosis is easy,--that
zc!y knows it when he has a cold or a tooth-
For a general practice of science is
need&i. An osteopath undertakesto be some-
thing more than a nurse or a masseur, and the
differencerestsprecisely in a claim to great-
'es science,which the state requires him to
Drove. The same considerationsthat justify
*&includinghim justify
grades from the law. ;:%:?: :::y%~y 218
~;S’6~3 179-180,5'+L.Ed. 987, 990, 30%
. l
a
The very purpose of the Act Is to prevent incom-
petent persons from holding themselvesout as possessing
the qualificationsto treat the public. Thus, the courts
have uniformly held that the mode or method used in treat-
ing the public is Immaterial;the person prescribingthe
treatment must have the qualificationsset out in the Meti-
cal Practice Act. The laying on of hands and prayer consti-
tutes the practice of medicine. Singh v. State, 146 S.W.
891 (Tex.Crim.1912). A person practicing chiropracticand
naturopathywas held to be practicingmedicine. Bawkins v.
&$&q, 125 S.W.2d 580 (Tex.Crim.1939). Other cases ln-
volvlng chiropractorsare:
II;I;~f~d``su;r~ Ehrke v. Sta??w~9;``~
e State, 235 S.W. 576 (Tex.Crlm.1921).
see the case 0: picodeme v. Bailey
Civ.App. 1951, error ref. n.r.e.) the oniy*casementlo&I
the non-preferenceclause of the Constitution subsequentto
the 1947 Chiropracticamendment to the Medical Practice Act.
As to optometry prior to the Optometry Act, see Baker v*
State, 240 S.W. 924 (Tex.Crlm.l922), and after the passage
~of that Act see Ex Parte Halsted, .suora. As to osteopaths,
ox Paste Colllng and Collins . State both -0 As to
masseurs, &&worth v. State v136 S.Wl 788 (TexXrim.
illiIlE[ S at 5 434 @(TjCrim. 1912);H~roo``~?)'
&ate, 1;; StW.q& ?T%!&im. .
Hon. Austin F. Anderson, page 5 (s-60)
It must first be determinedwhether a naturopath,
licensed under the provisions of the NaturopathicAct, Ar-
ticle 459Od, V.C.S., is engaged In the practice of medicine.
zh;spract$ce of naturopathy is defined in that Act as fol-
:
9or the purpose of this Act, naturo-
pathy and natureopathy shall be construed
as synonymousterms, and the practice of
naturopathy'ornatureopathy is hereby ae-
fined as that philosophy ana system of the
healing art embracingprevention.diaa-
is, an e men aisma
& byd$eake kf'ietgal p$&e;pepJF-
a~ir,light heat, cold, water
tlon with ihe use of such su&kauces nu-
tritional as are naturally found in a&d re-
quired by the body, excluding drugs Sur-
gery, X-ray, and radium therapy, anclthe
use of X-ray equipment.
"Nothing in this Act shall be con-
strued to be authority for any naturopath,
licensed hereunder to practice medicine
as defined bv the iaws gulatina the D aq-
ti e of medi in in thizeState Surgeryr
De&try OEteEpathy Chiropr&tic Ch&.s-
tian Scieice, or any &her treatment'or
system of treatment authorizedfor by law,
nor shall the provisionsof this Act in any
way or manner apply to or affect the prac-
tice of Medicine,Surgery, Osteopathy,
Christian Science or any other treatment
or system of trea4ment authorized and pro-
vided for by law for the prevention of
human ills." (Emphasis supplied).
Thus, the positive feature provides that naturo-
pathy is the philosophy and system of the healing art em-
bracing the prevention. diagnosis and treatment of humaq
11s by certain means; and by the negative part is not to
+r e construed as giving the naturopath the right to practice
medicine.
I~tappears that the paragraphsof the Naturopa-
t?cCdefinition conflict with each other. Article 741,
by defining the practice of medicine further con-
f&is*hhe problem for a naturopath licensed &tar this Act
$$22
Hon. Austin F. Anderson,page 6 (s-60)
may treat human ills but (by the same section) if he treats
these ills, he violates the law.
It may be contended that this constructionis too
restrictive,but the intent of the Legislaturewas to set
naturopathy aside as an independentfield of endeavor separ-
ate and distince from the practice of medicine, and that
auy provisionsof the Act leading to a contrary conclusion
must be rejected. Thus, in prohibitingthe naturopath from
practicing medicine, the intentionof the Legislaturewas
to permit the naturopath to act only In the realms of his
particularendeavor without the use of drugs, surgery, etc.,
usually imputed to a practitionerof medicine. This, in
essence, was the contentionIn the Balsted,case;sunra.
Thus the question occurs as to whether the Legislaturehas
the authority to make such a distinction.
Before discussingthat point, however, it should
be noted that the cases previouslycited deflnltelydeter-
mine that the Medical PracticeAct of 1907 as amended
makes no distinctionbetween schools of meiicine or meth-
ods of treatment/but merely requires that a praoticioner,
pass an examinationproving his qualifications.~Ashby v.
fara of Medical Examiners,142 S.W.2d, 371 (Tex.C&v.App.-
4C error ref.) It is also clear that the constitutional
pro&Ion does no: prohibit a legislativedefinition of what
d;rr2d what does not constitutethe practice of medicine.
B * . State,mj J&m. suura.
It is clear that In order to practice naturopathy
a person must treat ~diseasesor disorders and attemnt to ef-
fect a cure. This is the practice of medicine. A&. 741;
V.P.C. The question recurs on the power of the Legislature
to set aside the practice of naturopathyas a separate heal-
ing art.
the Halsted case, supra, a writ of habeas cor-
DUSwas sought to obtain the discharge from custodv of W.B.
&&&ted who-had beenarrested upon charges of practicing
chiropracticwithout a license. Other activitieswere en-
gaged in by the defendantfin1%iolation81 of the statute.
The court discussed the povisions of the ChiropracticAct in
the light of the constitutionalprovision and upon the ques-
tion of being definite and certain. If the provisionswere
certain, it would be In violation of the constitutionalpro-
vision. If the law was uncertain, it would fall of Its own
weight. One of these conclusionswas stated in the follow-
ing language:
. -
Hon. Austin F. Anderson, page 7 (s-60)
"Thus the legislaturehas carved out
of the field of the healing art a single
system for treating diseases and disorders,
and.has given it special tkeatment,.llm%t-
ing the use thereof to those only who qual-
ifyunder the terms of this Act. That such
legislationviolates the non-preference
clause of Art. 1.6,Section 31, of our State
Constitution definitelyappears."
The Halsted,case m, distinguishesthe prac-
tice~of ~chiropraoticfrom Jhe practice of dentistry and
optometry under the non-preferenceclause of the'constitu-
tion (Art. XVI Section 31) as being the treatment of the
whole human boay rather than a segment. Art. 741, V.P.C.
Su3usa distinction~cannotbe made in the case of naturo-
. The Halsted case is squarely in point and the fol-
lowing language used in that case substantiatesthe posl-
tion taken here:
n Assuming, then that~underthe
Act beioie'us,,the Legislaturehas set up,
recognized,and defined chiropracticas a
system, means,~and method for the treatment
of diseases and disorders of the human body,
and that practitionersthereof are authorized
to treat by chiropractic,patients for dis-
eases and disorders it is evident that the
Legislaturehas preierred such science and
such practitionersover all others engaged in
doing the same thing that is, in treating
the human body for diseases and disorders be-
cause the chiropractoris not required to have
the same educationalqualificationsnor is he
required, as a condition precedent to his
right to treat patients, to pass a satis-
factory examinationupon the same subjects
that are required of all others similarly sit-
uated."
The principles announced in that case, when ap-
plied to the question presented, conclusivelydemonstrate
that the qualificationand educationalrequirements imposed
by the NaturopathicAct are not identical nor even substan-
tially the same as those of the Medical Practice Act. Con-
trast Article 4 9Od, Sections 3 8, and 9, V.C.S. with
Articles 4500 ? 501 and 4503 f.C.S. Nor does the Naturo-
pathic Act reieal OS modify the Medical Practice Act. Arti-
cle 459Od, Section 5, V.C.S.
Hon. Austin F. Anderson, page 8 (S-60)
The Basic Science Law, Chapter 95 Acts of the
5lst Legislature 1949, Article 459Oc,V.CA, does not
disturb the coneiusions herein expressed,for that law
merely provides that before a person is permitted to take
an examinationfor a license to practice the healing art,
he must present to the State Board of Examiners in Basic
Sciences a certificateof proficiencyin certain enumer-
ated studies. Article 45905 V.C.S. (Sections1 ana 3).
These provisionshave beenconstrued as additional re-
quirements to those imposed by the Acts requiring the ex-
amination by the different schools of medicine. stroua
136 s.w.2d 1025 (Ark.Sup.1940 ap .aism. 311
%!%$ (1940);Attly Gen. Op. V-988 (19507.
The Basic Science Law d0e.s not purport to set
up standards for the practice of medicine. Section ,l of
that Act reads as follows:
"go nerson shall be uermitted to take
an examinationfor a license to practice
the healing art or any branch thereof, or
i be granted any such license unless he has
presented to the Board or olficer empowered
to,;;.suesuch a license as the applicant
, a certificateof proficiencyin ana-
tomy, physiology,chemistry,bacteriology,
pathology, and hygiene and public health,
hereinafterreferred to as the basic sci-
ences, issued by the State Board of Examl-
ners in the Basic Sciences.n (Emphasis
supplied)
The emergency clause contains an added reason
for this construction. It reads in part as follows:
Wet. 26. The importanceto the public
of the provisionsof this Act and the neces-
sitv for further safeauardinpthe g nting
cn
of 1 ce ses 0 trhtheal
~+&g contained in this Act, . . .'I (Emphasis
suPPl+d)
Neither can it be contended that the Healing Arts
IdentificationAct, chapter 154, Acts 52nd Legislature,1951,
Article 45900; V&S., in auy manner affects the problem
presented here. That Act merely requires that a person who
is licensed to practice the healing art identify the system
he follows by the placing of proper identificationafter his
-. c
Hon. Austin F. Anderson, page 9 (s-60)
name under certain circumstances. The'captionclearly
shows this to be the.only..purposeof .theAct.and Sec-
tion 2 then specificallyprovides that'the.'aefSnition
of "healing arts.18
is only for the purpose of that Act.
The three very able briefs submitted for.con-
sideration,advancethe ~positionthat the galsted case
is not determinativeof the question presented. E'or.
the reasons stated above, that position can not be sus-
_ .taine& ~'T'
It is a fundamentalconcept of our jurispru-
den& that the.actions of the Legislatureare,entitled
to every--considerationreasonablyupholding their'con-,
stitutionality. Indulging every presumptionpossible.
still leaves us with the inescapableconclusionthat
the Legislature has preferred one school of medicine..
over another by the lessening of the qualificationsand
standards of education required of a naturopath. Thus,
no~matter how worthy this classificationmight be and
no matter what beneficial resultswould be attained if
the Act were upheld, the Constitutionis controlling
and this legislationdoes not conform.
The NaturopathicAct violates the provisions
of Art. XVI, Sec. 31 of the Constitutionof Texas since
it gives a preference to one segment of the healing arts.
To rule otherwisewould require a holding that the Act
is uncertain and indefinite in defining the practice of
naturopathyand thus unconstitutional.
Tour first question is'answeredaffirmatively
thereby rendering an answer to your second question uu-
necessary.
The NaturopathicAct, Article 45!&
V.C.S. violates the provisionsof Art.
XVI P 31 of the Constitutionof Texas in
tha4 it gives a preference to one segment
of the healing arts. To rule otherwise
would require a holding that the Act is
Hon. Austin F. Anderson, page 10 (s-601
$#
uncertainand indefiniteand thus unconsti- i
tutional. Ex Par e H alstec& 182 S.w.2a479
(Tex.Crim.1944).t
APPFlovED: Pours very thly,
Phillip Robinson JOHN B$N SEQ'PEBD
AppellateDivision Attorney General
C. K. Richards
Reviewer
BY
Robert S. Trotti Elbert M. Morrow
First Assistant Assistant
John Ben Shepperd
Attorney General
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