Untitled Texas Attorney General Opinion ( 1961 )

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.Awe- 11. TEXAS
WILL WILSON
A-l-l-0-X GENERAL
Honorable Bill Hollowell
Chairman, State Affairs Committee
House of Representatives
Austin, Texas
Opinion No. W-1045
Re: Constitutionality of House
Bill 828 of the 57th Legls-
lature, relating to licensing
of clinical laboratories and
Dear Mr. Hollowell: clinical laboratory directors.
You have requested an opinion on the constltutional-
ity of House Bill 828 of the 57th Legislature which provides
for a licensing of clinical laboratories and clinical labora-
tory directors through the Texas State Health Department.
A clinical laboratory and clinical laboratory dlrec-
tor are defined in Section.2 of the Act aa~follone:~
" 0)) 'Clinical Laboratory' means
any place, establishment or institution
organized and operated for the practical
application of one or more of the funda-
mental sciences by the use of specialized
apparatus, equipment and methods for the
purpose of obtaining scientific data which
may be used by a licensed physlclan as an
aid in ascertaining the presence, progress
and/or source of disease In human beings,
or the state of health of an individual;
provided, however, x-ray laboratories shall
not be included in this definition.
"CC) 'Clinical Laboratory Director'
means any person licensed under this chapter
to engage fn the direction of a clinical
laboratory."
. .
Honorable Bill Hollowell, page 2 (WW-1045)
Other sections of the Act make It unlawful to oper-
ate a clinlcal,laboratory or act as a director of such unless
duly licensed by the licensing agency, the State,Health Depart-
ment, and give to the Health Department certain authority in
connection with the appllcatlons for and Issuance of the ll-
censea and the establishment of rules and regulations necessary
for the proper administration of the provisions of the Act.
House Bill 828 contains but one subject which is
expressed in its title and the body of the Bill conforms to the
caption and Is, therefore, in compliance with the provisions of
Section 35 of Article III of the Constitution of Texas.
Section 31 of Article XVI of the Constitution of
Texas provides:
"The Legislature may pass laws pre-
scribing the qualifications of practitioners
of medicine In this State, and to punish
persons for malpraatlce, but no preference
shall ever be given by law to any schools of
medicine."
In view of the provisions of Section 31 of Article
XVI above quoted, the Legislature Is not authorlied to allow
Individuals to practice medicine without requiring such ind~i-.-
viduals to meet the reaulrements for license to nractlce medi-
cine. Wilson v. State-Board of Naturopathic Examiners, 298
S.W.2d 94b (Clv.App. 1957 , error re ., n.r.e., aer . en.,
U.S. 870, reh.den., 355 U.S. 920); Schllchtlng v. Texas St%
Board of Medical Examiners, 158 Tex. 279, 310 S.W.2d 557 (1958).
In view of the foregoing, the constitutionality of
House Bill 828 Is dependent on whether Its provisions would
authorize an individual licensed thereunder, to perform acts
which constitute the practice of medicine as defined by Article
4510, Vernon's Civil Statutes and Article 741, Vernon's Penal
Code.
In conetrL%ng the pr0vlsiOas,of ths Medical Practice
A0O````f``V?t%f4
held'in F.W.B.'RoCkett, M.D. v. State Board of
Medical Examiners, 287 S.W.2d 190 (Civ.App. 195b, errorref.,
n.r.e.):
I,
. . . ~By the pleadings of appellant,
his testimony, and the stipulations of the
parties, It was conclusively established
Honorable Bill Hollowell, page 3 (WW-1045)
that: Appellant was.em loyed by Thomas
Clinic for a salary of 500 per month
and he received no fees; the Clinic was
owned by Ralph C. Thomas, who was not a
medical doctor and no medical doctor owned
any interest in the clinic; appellant per-
formed medical services for the clinic and
the fees for such services were collected
by the clinic. Such conduct on the part
of appellant was In effect 'permitting,
or allowing, another to use his license
or certificate to practice medicine in
this State, for the purpose of treating,
or offering to treat, sick, Injured, or
afflicted human beings', which conduct is
prohibited by the provisions of Section 12
of Art. 4505, Vernon's Ann.Civ.Stats., and
Is made a ground for the forfeiture of a
license to practice medicine by the pro-
visions of Art. 4506, Vernon's Ann.Clv.Stats.
See Section 5, Art. 4505."
See also Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376
(1957); Texas State Board of Examiners In Optometry v. Carp,
-Tex.--, 343 S W 26 242 (lgbl); and Attorney Qeneral's Opln-
Ion No. ``-278 il957).
While the definitions in Section 2 do not clearly
specify or limit all acts which might or might not be performed
by a clinical laboratory,~It Is noted that.Sectlon 15 ~of House
~111 828 specifically provides:
"Nothing in this Act or the licensing
hereunder shall be construed as authorizing
or permitting any person to practice medl-
alne or to furnish the services of a physician
for the practice of medicine, and nothing in
this Act shall repeal or In any manner affect
any provision of the code relating to the praa-
tice of medicine, and nothing In this Act
shall affect any clinical laboratory or lab-
oratories operated by the State of Texas, the
Federal Government, or any subdivision thereof,
or a physician licensed in the arts of healing.
All laboratory work done by clinical labora-
tories licensed hereunder shall be done only
upon request of a physician licensed in the
healing arts by the State of Texas, or a phy-
sician licensed in the state in which he
practices, and all reports of the findings
made in the tests conducted by the laboratory
shall be reported only to the person requesting
. ”
Honorable Bill Hollowell, page.4 (WW-1045)
said test or.to the person or persons
designated by the person making such
request."
In view of the provisions of Section 15, an Individual
licensed in accordance with the provisions of House Bill 828
is not permitted to perform any act which would conatltute the
practice of medicine in this State. On the contrary, such
individuals perform chemical analyses and tests conducted by
the laboratory for the use and benefit of lndlvlduals licensed
to practice medicine in this State. Therefore, It Is our opfn-
ion that the provisions of House Bill 828 do not violate the
provisions of Section 31,of Article XVI of the Constitution of
Texas.
We do not find any provision in House Bill 828 which
violates any other provision of the Constitution of Texas and
you are, therefore, advised that its provisions are aonstltu-
tlonal and valld.
SUMMARY
House Bill 828 of the 57th Legis-
lature, relating to licensing of
clinical .laboratdrieszdoes not. "
authorize the performance of acts
. which constitute the practice of
medicine and is;therefore, not In
violation of,Sectlon 31 of Article
XVI of the Constitution of Texas
and Its provisions are conatltu-
tlonal and valid.
Yours vefy truly,
WILL WILSON
Attorney General of Texas
JR:afg
APPROVED:
OPINION COMMITTFX
W. V. Geppert, Chairman
. . .
Honorable Bill Hollowell, page 5 (WW-1045)
Leon Pesek
Jack Price
Ray Loft123
Llnward Shivers
REVIEWED FOR THE ATTORNiY GENERAL
BY: Morgan Nesbltt