Untitled Texas Attorney General Opinion ( 1950 )

AW?WTIN ~.TJZXAS
PRICE DANIEL
ATTT”RNEYGENERAL
Apall 14; 1950
Hon. Ft. T. veber, D.D.8. Optaiom lo. Tr~1049,
Sawrerta~-Treasurer
Texas State Board of .RetT&J exe@~&ion of den-
Bentel Examiners tiats em$oyed by the
Austin, Texas Veterens Admlniatra-
t:on or ttw II.S. Pub-
11e Eeeltb Service
ircimTexas licewe and
registretlonraquire-
mer sir: mats.
Your request for an opinion reads in part a8
rollOVB:
“Sire World Was 1% the Veterans ‘Admih-
istratlon of the United Stat& has employed a
number of Texas licensees on a full time basis
to perform dental aervteesuponex-members of
the Armed Foroes under the W-Veterans program.
These Texas dentlata praotlce in Federal Vet-
erans hospitals in the State of Texas and in
other states and In officea rented or leased
.by the VetWBn8 Admfnlatretionin various Tex-
a8 8reas. Eo fees are charged the ex-servlae
member and the Texas licensee receives a f-x-
ed salary from the Veterans AdmLniatratLon.
“The United States Public Health Service
hes employed Texas licensees,on full time be-
eis the same as the Veterans AdmI.niatration
and that agency Is oonsldered by this depart-
ment as oooupylng a simllar~positionto the
Veterans Administrationin so far as the oper-
etlon of the Texas laws is concerned.”
On the basis of the ,abovefaota, you have pre-
Haf*Q for our determtnatlonthe following three qUWtiOUB:
“1* The full time VetereU! AdmlniBtr8-
t&on and United states Public Eealth Service
Texas lloens.eddent ats &&aim exemption un-
‘day the . . . &stu : 8 (Ark.3550a, &C .S. ).
Bon. R. T. Weber, D.D.3., page 2 (V-1045)
Are such licensees entitled to snnual regis-
tration fee exemption?
"2. Are full time Veterans Adminiatra-
tion and United States Public Health Servlm
dentists not licensed to practice dentistry
in Texas but who perform dental services up-
on ex-members of the Armed Forces and/or
their dependents in Veterans Administration
hospitals under the exalusive control and
jurisdictionof the Federal Government in
violation of the o - . statutes prohibiting
the practice of dentistry by persons not ll-
tensed so to do?
“3. Are full time Veterans AdmInistra-
tion and United States Public Health Service
dentists not licensed to practice dentistry
in Texas who perform dental services upon
ex-members of the Armed Forces end/or therr
dependents in offices, clinics, or other
establishmentsunder lease by the Veterans
Administrationexempt from the provisions
of the Texas Statutes prohibitingthe prac-
tioe of dentistry without first having been
licensed in this State?"
The above questtons will bs discussed and an-
swered in the order stated.
Artfcle 4550a, V.C.S., provides.in'part:
Provided, however, that the re-
quirem&'governing the payment of annual
registrationfees and penalties for late
registrationshall not apply to lioenseea
who sre on active duty with the armed forces
of the United States of America, and are not
engaged In private or civilian practice."
Article 4548, V.C.S., is as follows:
"Ro person shall practice or offer,or
attempt to practice dentistry or dental sur-
gery in this State, without first havFng
obtained a license from the State Board of
Dental Examiners, as provided for In this
lav, provided that physicians and surgeons
may, in the regular practice of theFr pro-
fession, extract teeth or make application
Ron. B. T. Weber, D.D.S., page 3 (V-1045)
for the relief of pain. nothing herein ap-
plies to any person legally engaged in the
practioe of dentistry in Texas et the time
of the pass,ageof this law."
38 lJ.S.C.As,Set .15, Is as follows:
"The medical service in the Veterans'
Administration,as at present constituted,
is abolished and in its stead there is suth-
orlzed and established in the Veterans' Ad-
ministration a Department of MedicFne and
Surgery under a Chief Medical birector. The
functions of the Department of Medicine and
Surgery shall be those necessary for a aom-
plete mediaal and hospital service to be
prescribed by the AdminLstratorof Veterena'
Affairs (referredto in sections 15-l% of
this title as the Administrator)pursuant to
said sections, other statutory authority and
regulationsestablishedpursuant to law, for
the medical aare and trea,tmentof veterans.
Jan. 3, 1946 c. 658, 8 1, 59 Stat. 6~5.~
38 U3.C.A., Sec. 158 provides that the depart-
ment of medicine and surgery shall Include the followingt
Office of the Chief Medfcal Director, Medical Servtce,
Dental Service, Nursing Qervicep and Auxiliary Service.
38 u.a.c.A., Sec.15d provides:
"Any person to be eligible for appoint-
ment fn the Department of Mediciae and Sur-
gery must --
"(a) Be a aitieen of the Unlted States.
"(b) Xn the Medioal Service --
"Bold the degree of doctor of medicine
or of doctor of osteopathy from a college or
u&verslty approved by the Administrator,
have completed ,611 InternShip aatisfsotoryto
the Administrator,and be liceneed to prao-
tice medicine, surgery, or osteopathy in one
of the Qtates’or TeZ?ritorieB of the United
&totes or ;Zn the Distrlot of Columbia.
"(a) In the Dental Servioe --
Hon. B. 1. Weber, D.D.S., page 4 (V-1045)
"Hold the degree of doctor of dental sur-
gery from a college or university approved by
the Administrator,and be licensed to practioe
dentistry Fn one of the States or Territories
of the United States or in the DLstrictof Col-
umbia. . .'I
38 U.S.C.A., Sec. 706b is as follows:
"In the adminlstratlonof laws pertain-
ing to veterans, retired officers, and enlist-
ed men of the Army, Navy, Marine Corps, and
Coast Guard, who served honorably during a war
period as recognizedby the Veterans' Admlnis-
tration, shall be, and are entitled to hospi-
talization and domioiliary care in the same
manner and to the same extent as veterans of
any war are now or may hereafter be furnished
hospitalizationor domiciliary care by the
Veterans' Administrationand subject to those
provisions of pare raph VI (A) of Veterans Re-
gulation Numbered 8 (c), which provide for re-
duction of monetary benefits to veterans having
neither wife, child, nor dependent parent whhile
being furnished hospital treatment, institution-
-, 61 or domlc~llary aare. July 19, 1939, ch.331,
ltjf4,5389,t,a$.-
1070; Dea. 22, 191, c.612, 55
.
Veterans Regulation No. 7 a) promulgatedby Rx-
ecutive Order No. 6333 dated July 28 , 1933, (38 U.S.C.A.,
p.684) provides:
"The Administratorof Veterans' Affairs,
within the limits of Veterans' Administration
facilities, is authorized in his discretion to
furnish to honorably discharged veterans of
any war, including the Boxer rebellion and the
Philippine Fnsurreotl.on,and to men honorably
discharged from the United States Army, Navy,
Marine Corps, or Coast Guard for disabilities
incurred in line of duty, such medical, surgi-
aal, and dental services as may be found to be
reasonably necessary for diseases or injuries
incurred or aggravated in the line of duty;in
the active military or naval service. D .
This office has been reliably informed by the
Veterans Administrationthat it is not within or under
Non. B. T. Uebep, D-D.@., pew 3 (V-16@)
the jurisdicstfonof any of tbe aevercrldepa*menta that
o to make up the AxusedForaes of the United Stat(rs.On
La ocntPapJp it Is a sewrate federal agency. 'PhePub-
lie lteerlth
Semfoe La likewise a separate federal agency
u~&r&e``u````P``~on of the Federal Security Menc)'~.
*.*a# 00
&m.B&f , 83 t. aupp. na
"The Public Health Seroioe ia not 1.
part of the Armed Fordes of the United
states * Those consist of the Amy, la
the Mar&m Corps, end the Croastffugsd. Sk
Woe Oq !?a+,the Public 8erZth dewlob oa
be end la World War II wee temportwil~ta f *
sir0
into the Armed Foxwa."
It tbewfore follows that since the Vetsraar
AdPriaistratPon and United Stetea PubLio Efealth8efolco
@a?enot within the jurisdloticnof asy of the depart-
taentscomprising the Armed lkwaee of the United States
the Qantfsta in the employment of such agencies are no&
*on Sotlve duty with the Armed Boraea of the United
@Cater" witb;hin the meantadl,cf A rt+o,le05gOs, V.C.S.,
mlafing to the exemption from p#pnt of ~fat8e&w&
fmm P@quimd of lf.cenaedT,xrrrdetittists.
Peslifn$nw to yea rectindqueatlon, we Ball
stl;at)Blonat the nutsat +o tbe;fact bbet c$baptar7 of
TfAlC l+~ot'VernMas8 Pbncrl Code end Cbeptsr 9 of Title
7% OZ “WPUO~‘s CivLl 8t%tutea~regulatlngthe practice
O$'hWtrtrg am eoceMf#ea of the pcllce povepa of the
btrW End 8~
al velfere of
6@ $*.W.26601
In rwln v. Conn 225 H,C. 267, 34 $.#.2tt 402
(19b3),, +
the oo
"Immunftg of interfezsaceby local le*
with tbe instrumentelftfescreated for the
Boa. B. 1. Wehr, D.D.8.) page 6 (V-1045)
government of the Imted State8 Is a femi-
liar pmlciple.” 1
the court J&My v. United 8tetsr, 319 Ii.?.441 (1943)
“Sinoe the United 8trtes ir a govbm-
ment of delegated powers,,aoae of whiah may
be exercised throughout the aetlon by any
one state, it la necessary for uaif%mity
that the laws of the United States bs dom-
inant over those of any etete. 8uoh domi-
nanoy is required also to avoid a breakdovn
of administrationthough possible confliots
arising from inoonsiateptrequirements. The
,supremaayoraube bf the C.~netitutlcia~states
‘prino&ples
1,
. . .
“These inn ction fees epe latd direct-
ly u on the Unired States. They am money
exaceIons the payment of ‘whioh,’
if they are
enforoeable,would be requlmd before execut-
ing a function of government. 8wh a require-
ment is prohibited by the atipremaayclause. We
are not dealing as in Oreves,v. State of New
York, etc., suupTa,with a ta% upon the salery
of an employee, or as in State of Alabama v.
King & BoozerP,314 U.S. 1, 62 8.M. 43, 86 L.
Rd. 3. 140 A.L. R. 63.5.with a tax man the
pu.r&kes of a suppl&, or as in Peh D&k.es,
v. Milk Gontml Oomm. of Pennsylvania,
:??;.s. 261, 63 s.ct. 617, 87 L. Rd. +
316, 4 L. Hd. 579;
.276 (1899);Johnson
; State of Arizona v.
,FoveS v. Mitchell,
. . . .
Ron. B. T. Weber, D.D.S., page 7 (v-1045)
deoldedMarrPh1, 1943, with pr&ee oontrol
exemised over a contractorwith the Unit-
aamy on the buefness of the post office or
upon the privilege of aeaqling
Vnited States
bonds through federal offioiala. Admitted-
ly the state Puspeotion servioe is to pro-
tect consumers from fraud but In carrying
out sucshprotection, the federal fun&ion
must be left free.” (EmphasOsadded)
O-4764, dated
In AttorneyGeneral Opinion ,190.
Atigust 25, 1942, it is stated:
“In view of the authorltLesabove cit-
ed and with reoogniteon of their virtual
Identity to the situation whloh you have
sub&teed to this departmentp you are re-
spectfully advised that Articles 4548 and
45% of the Revised Civil Statutes of
Texas (19’25) and Article 747 of Vernon’s
Penal Code of Texas, prohibiting the prac-
tice of dentlstrg in Texas by unlicensed
ersons, am poPice regula%fons of the
!i
tate and as such cannot eonstftutionallg
be applied to unlfoensedpersons who are
prao%iofng dentistry under the order and
dfrectfon of %he eommandfng officer of an
alPen detention oamp established and maln-
teined by the United S%ateso”
By mason of the foregoing, ft is our oplnlon
that dentfsts employed full time by th,eVeterans Admin-
istration and Wni.%edStates Public Health Servioe per-
foW.ng services on ex-membera of the Armed Foroes are
not subject to the police power of %he State of Texar
pBQulx%hg deatfste to be licensed In Texas.
The same principles of law herein announoed
are applicable to those dentists employed full time by
the Veterans Administrationin performing dental ser-
vioes for ex-members of the Armed Forces and their de-
pendents fn offices, clfnfcs or other establishments
under lease by the Veterans AdministrationFnasmuch a8
they”are under the direct supervision of the Veterans
AdminfstratfonI) A federal agenoy Fs Immune from state
. . . .
Hou. R. T. Weber, D.D.S,, page 8 (v-1045)
Interfereme. united states v. owl&t, 15 F~.supp. 736
(D.c. PS. 1936), pi,ntists penfmiag dutb3s under the
supervision of'the Federal (iovernw~ tn eueh establlah-
ments are not subject to Che polioe power of a state.
Dentls~s Mployed 'Iti1'timeby the Vet-
eraa Administrationand th8 United States
Publio Health Service are not on aotive duty
with the Armed Forcen of the United States
within the meaning of Artiole 4550a, V.C.9.,
but dentists so employed by such federal agen-
,ciqs gre no# qubjeot tu Tjixata
1loessWg ,laws
(A&t%. 45484455OS, V.C.Si) Lueswwfh;#a~the
ectlvities of'federal aaeneles are not rub-
ject to the police pore% of the State. Walls
81 F. Supp. 210 (DISC. Co?
d States, 319 U.S. 441.
aone v. California, 283
naon v.,Msyyland,,254 U.
15 F. supp.
Yours Very truly,
PRIC& DANIEL
APPRO'JEDt AttornavyGeneral
J. C. Davis, Jr.
County Affairs Division
Charles D. Mathews ‘! Bi5
Executive Assistant Assiatent
RW!bh:ml:mw