Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORSEY GESERAL
OF TEXAS
December 28, 1990
Dr. James E. Franklin, D.C. Opinion No. JM-1279
President
Texas Hoard of Chiropractic Re: Whether .a chiropractor may
Examiners use the title %hiropractic
8716 MoPac Expressway physicianq' (RQ-2133)
North, Suite 301
Austin, Texas 70759
Dear Dr. Franklin:
Article 4512b,~ V.T.C.S., the Texas Chiropractic Act,
creates the Texas Board of Chiropractic Examiners and
governs the registration, examination, licensure, and
practice of chiropractors. Your letter requesting an
opinion states:
The Texas Board of Chiropractic Examiners
respectfully requests your opinion on the
Board's authority to adopt a rule authorizing
a chiropractor to use the title 'chiropractic
physician.'
We understand you to ask whether the board is authorized to
promulgate a rule permitting a chiropractor to use the title
"chiropractic physician" in addition to one of the
designations that chiropractors are required by article
4590e, V.T.C.S, to employ. We conclude that it does.
Administrative agencies may promulgate rules when
;zrss authority to do so is conferred by statute or when
implied authority is necessary to accomplish the
purpose of the statute. Gerst v. Oak Cliff Sav. & Loan
Ass'n, 432 S.W.2d 702 (Tex. 1968); Gulf Land Co. v.
Atlantic Refining C0. I 131 S.W.Zd 73 (Tex. 1939). Hence,
when a statute expressly authorizes an agency to regulate an
industry or profession, it impliedly authorizes the adoption
of regulations to accomplish that purpose. Railroad Comm'n
V. Shell Oil Co,, 161 S.W.2d 1022 (Tex. 1942): pallas Countv
&ail Bond Bd. v. Stein 771 S.W.Zd 577 (Tex. App. - Dallas
1989, writ denied). Whether promulgated on the basis of
express authority or implied authority, any rules adopted
p. 6859
Dr. James E. Franklin - Page 2 (JM-1279)
must be reasonable and not in excess of any powers dele-
gated. Ferst v. Oak Cliff Sav. 8 LQgn Ass'n, Suora;
218 S.W.2d
Texa te Bd. of Examiners in Ovtometrv v. Caru
412 S%.2d :USta(Tex. 1967), cert. denied 389 U.S. 5;
(1968), the Texas Supreme Court upheld a ruie, denominated
the Professional Responsibility Rule, adopted by the board
that, inter al&l regulated the trade names that optome-
trists could employ. The statute did not specifically
confer express authority on the board to regulate in this
area. The court construed the following statutory language
as impliedly conferring the requisite authority:
The Board shall have the power to make such
rules and regulations not inconsistent with
this law as may be necessary for the perfor-
mance of its -duties, the regulation of the
practice of optometry and the enforcement of
this Act.
Id. at 309.
In upholding the rule, the court declared:
We conclude that the court of civil ap-
peals erred in its holding that the Profes-
sional Responsibility Rule added new and
inconsistent provisions to the Optometry Act.
th
To e r e
rule's orovisions are in harmonv with the
aener 1 obiectives of the act and referable
to an: consistent with one or more of its
Spec'ific oroscriotions. We believe that the
.Leaislature. bv investina the Board with
broad -ma ' owers ' the enforce-
m ent 0 f thi's A c'
t and '(for1 the reoulation
of the D ratt ice Of ODtOmetrV.’ COntemD lated
that S owers to
correct the ev' 11s aenerallv classified in
article 4563. or some other orovision of the
potometrv Act. If these rule-making powers
did not authorize the Board to regulate evils
not encompassed in the specific wording of
the act, they would be nothing more than
meaningless excess. (Emphasis added.)
P- 6860
Dr. James E. Franklin - Page 3 (JM-1279)
L at 313; see also Jtee . Barn 303 S.W.Zd 376 (Tex.
1957) (holding that board vpossessed implied authority to
adopt rule that regulated certain advertising by optome-
trists).
Subsection (d) of section 4 of article 4512b, V.T.C.S.,
confers broad authority on the Texas Board of Chiropractic
Examiners to promulgate rules governing the practice of
chiropractic:
The Board shall adopt guidelines for edu-
cational preparation and acceptable practices
for all aspects of the practice of
chiropractic.
Under the authority of the above-cited cases, we construe
this section to confer on your board the implied authority
to promulgate the rule about which you ask.
It is suggested, however, that section 3 of article
4590e, V.T.C.S., the Healing Art Identification Act, pro-
hibits the use by a licensee of your board of any title or
designation not set forth specifically therein and thereby
precludes your board from adopting the rule about which you
inquire. Section 3 of article 4590e, V.T.C.S., provides:
Every person licensed to practice the
healing art heretofore or hereafter by either
the Texas State Board of Medical Examiners,
the State Board of Dental Examiners, the
Texas Board of Chiropractic Examiners, the
Texas State Board of Examiners in Optometry,
the State Board of Chiropody Examiners and
the State Board .of Naturopathic 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
the 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 heal&a art:
(1) If licensed by the Texas State Board
of Medical Examiners on the basis of the de-
gree Doctor of Medicine: ghvsician and/or
p. 6861
Dr. James E. Franklin - Page 4 (JM-1279)
surgeon, M.D.: doctor, M.D.: doctor of medi-
cine, M.D.:
(2) If licensed by the Texas State Board
of Medical Examiners on the basis of the de-
gree Doctor of Osteopathy: phvsicia and/or
surgeon, D.O.; Osteopathic phvsici: and/or
surgeon: doctor, D.O.; doctor of osteopathy:
osteopath: D.O.
(3) If licensed by the State Board of Den-
tal Examiners: dentist: doctor, D.D.S.;
doctor of dental surgery: D.D.S.; doctor of
dental medicine, D.M.D.
(4) If licensed bv the Texas Board of Chi.-
JrODraCtiC Examiners: ChirODraCtOr. . doctor,
' .
Q,C.: doctor of ChiroDractlc. D.C2
(5) If licensed by the Texas State Board
of Examiners in Optometry: optometrist;
doctor, optometrist; doctor of optometry:
O.D.
(6) If a practitioner of the healing art
is licensed by the State Board of Podiatry
Examiners, he shall use one of the following
identifications: chiropodist: doctor, D.S.C.;
Doctor of Surgical Chiropody: D.S.C.; podia-
trist; doctor, D.P.M.; Doctor of Podiatric
Medicine: D.P.M.;
(7) If licensed by the State Board of Rat-
uropathic Examiners: Rat r nathic Dhvslcl n
phvsician. N.D.; doctor 0: Naturopathy; N.E.:
doctor, N.D.
Violation of article 4590e, V.T.C.S., is a misdemeanor,
punishable by a fine upon conviction of the first two
violations and a fine or license revocation upon conviction
of a third. Id. §§ 5, 6.
We disagree that section 3 of article 4590e, V.T.C.S.,
prohibits the use by a licensee of your board of the title
"chiropractic physician" and thereby precludes your board
from promulgating a rule permitting the designation. We do
not construe article 4590e, V.T.C.S., to set forth an exclu-
sive list of titles that those professionals regulated by
the statute may employ. Rather, we construe the statute to
p. 6862
Dr. James E. Franklin - Page 5 (JM-1279)
set forth, in effect, minimum requirements with which the
regulated professionals must comply. In other words, we
construe section 3 to require the use by a regulated profes-
sional of one of the designations set forth in the section,
but it is silent with regard to whether such a licensee may
employ any additional designation. We construe section 3 in
this fashion for two reasons.
First, the language of section 3 simply will not su-
stain a reading that the specified designations comprise an
exclusive list. The relevant language of section 3 pro-
vides: "The following are the legally required identifi-
cations, one of which m st be used by practitioners of the
healing art . . . . Iqu (Emphasis added.) There is no
language in the act purporting to limit those designations
that a regulated professional may use to only those set
forth. So long as one of the specified designations is
used, no violation of section 4590e, V.T.C.S., will occur.
Second, we think that our construction comports with
the evident intention of the legislature when it enacted the
Texas Chiropractic Act and its apparent recognition that
persons engaged in the practice of chiropractic employ de-
signations other than those set forth in section 3 of
article 4590e. Section 1 of article 4512b, V.T.C.S.,
provides in pertinent part:
A person shall be regarded as practicing
chiropractic within the meaning of this Act
if the person:
. . . .
(3) holds himself out to the public as a
chiropractor or uses the term 8chiropractor,g
*chiropractic,' ‘p of chiropractic,*
'D.C.,' or
connection with his name. (Emph%s added.)
It is clear that the legislature meant to include within the
ambit of the act those persons who employ not only the term
%hiropractor," but also those persons who employ "any de-
rivative" of those specified terms.
Moreover, we conclude that the evident purpose of the
act would in no way be undermined if, in addition to the
list of designations from which a licensee is required to
choose, he is also permitted to employ the title "chiro-
practic physician." Section 3 of article 4590e, V.T.C.S.,
p. 6863
Dr. James E. Franklin - Page 6 (JM-1279)
i
authorizes each of the professionals regulated by the act to
employ the term "doctorI in a way that identifies the
healing art by which he is permitted by his license to
practice, and authorizes osteopaths and naturopaths to
employ the term "physiciann as well. The act already
permits a practitioner of chiropractic to employ the term
wdoctorO1if, in addition, he identifies that the healing art
for which he possesses a license is that of chiropractic.
The terms wdoctor" and "physician*' are functionally
synonymous: thus a chiropractor's employing the term would
not be misleading.1 See., M.i,Llina
v. State,a150e ",.W,
434 (Tex. Crim. App. 1912); Walters v. Bull-a M int n nc
Service. IX,, 291 S.W.2d 377 (Tex. Civ. App. - Dallas 1956,
no writ): Barfield v. State, 110 P.2d 316 (Okla. Grim. APP.
1941); mmas V. Carlton Hosierv Mills, 81 A.2d 365 (N.J.
1951); see also V.T.C.S. art. 4567b (practice of podiatry to
include, inter alig, a "podiatric physician"); Op. Okla.
Att'y Gen. No. 78-173 (1978)(holding that "physicianl' in-
cludes the term llchiropractortlfor purposes of a statute
licensing persons who practice the healing arts)! ;2 U.S.C.
5 1395x(r) (defining l'physician'lto include, an er alia,
"chiropractor" for purposes of federal public health and
welfare statutes).
We conclude that the Texas Board of Chiropractic Exam-
iners is authorized to promulgate a rule permitting its
licensees to employ the term @'chiropracticphysician," if
that phrase is employed in addition to,one of the terms or
phrases that the board's licensees are required to employ by
article 4590e, V.T.C.S.
1. We note that our construction of article 4590e,
V.T.C.S., in no way conflicts with Maceluch v. Wvsonq 680
F.2d 1062 (5th Cir. 1982). In that case the co&t of
appeals upheld the statute's requirement that an osteopath
had to employ the designation set forth in section 3 and
could not employ the term "M.D.l'instead. The court held,
inter lia that permitting an osteopath to employ the
identi:ying term "M.D." would mislead the public into
assuming that his degree was a degree as a "doctor of
medicine." We are here holding that a chiropractor is
required to employ one of the terms or phrases set forth in
section 3, but that he is not precluded by that statute from
employing an additional term or phrase if that term or
phrase does not serve to mislead the public.
p. 6864
Dr. James E. Franklin - Page 7 (JM-1279)
SUMMARY
The Texas Board of Chiropractic Examiners
is authorized to promulgate a rule permitting
its licensees to employ the term
%hiropractic physician," if the phrase is
employed in addition to one of the terms or
phrases that the board's licensees are
required to employ by article 4590e, V.T.C.S.
J!k
JIM MI+TTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
P. 6865