Untitled Texas Attorney General Opinion ( 1975 )

OF TEXAS
AUSTIN. TRZXAS 78711
April 17, 1975
The Honorable Cecil M. Pruett Opinion No. H- 584
County Attorney
Hutchinson County Re: Constitutionality of
630 North Deahl article 4590e, section 3,
Borger, Texas 79007 v. T. c. s.
Dear Mr. Pruett:
You have requested our opinion regarding the constitutionality of
article 4590e. section 3. V. T. C.S., and the interpretation of that statute
by the Texas State Board of Medical Examiners. The statute reads, in
pertinent part:
Sec. 3. Every person licensed to practice the
healing art. . . by . . . the Texas State Board of
Medical Examiners . . . shall 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 identifications, 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 of medicine; M.D.
(2) If licensed by the Texas State Board of Medical
Examiners on the basis of the degree Doctor of
Osteopathy: physician and/ or surgeon, D. 0. ;
Osteopathic physician and/or surgeon; doctor, D. 0. ;
doctor of osteopathy; osteopath; D. 0.
. . .
p. 2605
The Honorable Cecil M. Pruett, page 2 (H-584)
The Board interprets this statute to prohibit the use of the designation
I’M. D.” by a person whose medical license is based upon the degree of
Doctor of Osteopathy. You ask whether such prohibition violates the equal
protection clauses of article 1. section 3 of the Texas Constitution and the
Fourteenth Amendment to the United States Constitution.
“Osteopathy” has long been recognized as within “the practice of medi-
cine” in Texas . Attorney General Opinion O-1298 (1939). We have previously
held, however, that the Board of Medical Examiners is neither authorized
nor required to issue a license as a “doctor of medicine” to a practitioner
who received his education at an osteopathic school, and whose M. D. degree
was awarded merely by making application for it under the laws of California.
Attorney General Opinion C-48 (1963). “The degree M. D. connotes an edu-
cation obtained at a medical school and a D. 0. degree likewise contemplates
a degree obtained and based upon study at an osteopathic school.” la., at 220.
That opinion reflected a correct interpretation of the statute, but it did
not reach the question of constitutionality. A three-judge federal court in
Georgia, however, recently considered, in Oliver V. Morton, 361 F. Supp.
1262 (N. D. Ga. 1973), the constitutionality of a Georgia statute similar to
article 4590e. The court upheld the statute’s facial validity and stated that
it is reasonable for a state to impose separate classifications for M. D.‘s
and D. 0. ‘8 and consequently to prohibit the use of the designation of M. D.
by a person whose medical license is based on ,tbe degree of Doctor of
Osteopathy. However, the court also held that the Composite State Board
of Medical Examiners violated the equal protection clause of the United States
Constitution in its application of the Georgia statute.
The Georgia State Board had been licensing as M.D. ‘s foreign-trained
practitioners who had not been awarded a degree which was the equivalent
of the M. D. degree, and simultaneously had been refusing to license as
M. D. ‘s pradtitioners with a D. 0. degree. The court held that the state could
not “differentiate between two qualified physicians who have not earned an M. D.
degree and allow one to parade under an unearned:M. D. degree while refusing
to allow the other to do SO.” g., at 1269.
In our opinion, section 3 of article 4590e. similar to the Georgia statute,
is constitutional on its face. Of course, this statute, like any other statute
is subject to discriminatory and constitutionally proscribed application. We
have no facts before us to indicate that the Texas State Board of Medical
Examiners is applying the statute in such discriminatory manner.
p. 2606
The Honorable Cecil M. Pruett, page 3 (H- 584)
SUMMARY
Section 3 of article 4590e. which authorizes the
Texas State Board of Medical Examiners to prohibit
the use of the designation of “M. D. ” by a person
whose medical license is based upon the degree of
Doctor of Osteopathy is, on its face, constitutional.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 2607