Untitled Texas Attorney General Opinion ( 1960 )

THE ATTORNEY GENERAL
OF -XAS
AUSTIN 1% TEXAS
WVILI. WILSON
ATFORNEY GENERAL
July 25, 1960
Mr. Carl C. Hardin, Jr.
Executive Secretary
Texas State Board of Dental
?Zxaminers
Austin, Texas
Opinion No. w-893
Re: Does the Texas State Board
of Dental Examiners have
the authority to prohibit
Dentists from advertising
In telephone directories by
ads similar to the follow-
ing : "False Teeth & Repairs
Dear Mr. Hardin: - One Day Service."
Your request for an opinion reads in part as
follows:
"We have had several requests to
stop the directory advertising of sev-
eral dentists in metropolitan areas.
These ads are similar to the attached.
"!Ihlsdepartment will appreciate
your advising whether the attached is
in violation and can be stopped by
Board action."
The advertisement referred to in your request
consists of a listing in the "yellow" section of a tele-
phone directory in which the dentist has among other
things put his name in boldface type in a border along
with other Information, as follows:
"False Teeth & Repairs - One Day Service"
Article 752b of Vernon's Penal Code reads in part
as follows:
"Article 752b. Unprofessional conduct
-_
Mr. Carl C. Hardin, Jr., Page 2 (w-893)
"It shall be unlawful for any
person, firm, or corporation to
engage in or be guilty of any un-
professional conduct in the prac-
tice of dentistry, directly or
indirectly. Any 'unprofessional
conduct,' as used herein, means
and includes any one or more of
the following acts, to wit:
14
. . .
"(0) Advertising by means of a
display advertisement, display signs
or glaring light signs, electric or
neon signs, or such signs containing
as a part thereof the representation
of a tooth, teeth, bridgework, plates
of teeth or any portion of the human
head, or using specimens of such in
display, directing the attention of
the public to any such person or per-
sons engaged in the practice of
dentistry; (Emphasis added)
Article 752~ of Vernon's Penal Code provides for
the enforcement of Article 752b and reads in part as
follows:
"Article 752~. Licenses, Refusing,
Revoking, Cancelling, and Suspending of
"Section 4. The State Board of Ben-
tal Examiners shall, and It shall be
their duty, and they are hereby authorized
to revoke, cancel or suspend any license
or licenses that may have been issued by
such Board, if in the opinion of a major-
ity of such Board, any person or persons
to whom a license has been issued by said
Board to practice dentistry in this State,
shall have, after the issuance of such
license, violated any of the provisions
of the Statutes of the State of Texas re-
lating to the practice of dentistry in
Mr. Carl C: Hardin, Jr., Page 3 (~-893)
this State,~or any of the provisions
of Chapter 7, Title 12 of the Penal
Code of the,State of Texas, or any
amendments that may hereafter be made
thereto. All revocations, cancella-
tions or suspensions of licenses by
the Texas State Board of Dental Ex-
aminers shall be made as hereinafter
provided.
P,riorto 1947 Section (o), of Article 752b did
not Include the first phrase (i.e., advertising by
means of a display advertisement). This phrase was
added to Section (0) by an amendment in 1947 follow-
ing the case of State Board of Dental Examiners v.
Blckham, 203 S.W.2d 363 (no writ history), In which
the Court held that newspaper ads were not included
in the term "large display signs." On this point the
Court.said:
"Courts cannot extend subdivision
(o), which forbids advertising by means
of 'large display signs,' to newspaper
advertisements, The statute limiting
'large display' to 'signs,' excludes
'display ads.' 'Signs' are not 'ads.'
,It is unfortunate that the Texas Legls-
lature limited such acts of advertising
to 'signs,' instead of providing, as is
the law of Missouri, Oregon, Wisconsin,
and other States to include unlawful ad-
vertising by means of ‘large display,'
either by 'signs,' or 'ads,' without
limitation as to where such advertisement
shall be placed."
"Display Advertising" as defined by Webster's
New International Dictionary is advertising intended
to attract by its combination of copy, border, white
space, illustration, etc. Webster further defines
display in reference to printing as making conspicuous
by large or prominent type or by varying the length of
lines.
In view of the foregoing, It is our opinion that
the advertisment referred to in your request is a vio-
lation of Subdivision (0) of Article 752b, Vernon's
--- .
Mr. Carl C. Hardin, Jr., Page 4 @W-893)
Penal Code. You are further advised that by virtue of
Article 752c, Vernon's Penal Code, the State Board of
Dental Examiners Is authorized to revoke, cancel or sus-
pend the license of any dentist found guilty of violating
Article 752b, Vernon's Penal Code.
SUMMARY
Advertising in the "yellow" pages
of a telephone directory by means
of a display advertisement is a
violation of Article 752b, Vernon's
Penal Code. The State Board of Den-
tal Examiners is authorized by Artl-
cle 752~ to revoke, cancel or suspend
the license of any dentist found guil-
ty of violating Article 752b, Vernon's
Penal Code,
Yours very truly,
WILL WILSON
Attorney General of Texas
Robert A. Rowland
Assistant
RAR:mm
APPROVED:
OPINION COMMITTEE
Houghton Brownlee, Jr.
Robert T. Lewis
Thomas Burrus
Bob Eric Shannon
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore