Untitled Texas Attorney General Opinion ( 1974 )

F, AA`````` GENERAL
OF TEXAS
AUSTIN. Txzxas 78711
April 25, 1974
The Honorable Carl C. Hardin, Jr: Opinion No. H- 283
Executive Secretary
Texas State Board of Dental Examiners Re: Construction of Senate
Capital National Bank Building Bill 222, 63rd Legislature,
Austin, Texas 78701 Regular Session, 1973
Dear Mr. Hardin:
You have requested our opinion as to the effect of certain amend-
ments to the Dental Practice Act made by the 63rd Legislature and now
codified as Articles 4551d(l) and 4551f(6), V. T. C.S. In your request you
advise that Texas dentists commonly patronize dental laboratories and
dental technicians situated outside the state. Prescriptions for dental
restorations needed by these dentists’ patients are sent to out-of-state
laboratories for fabrication by the dental techhicians employed.there.
Most of the dental work done by these foreign laboratories is returned
through the mails. You ask whether the amendments to the Dental Prac-
tice Act made by the 63rd Legislature now prohibit out-of-state dental
laboratories and dental technicians from filling a prescription for dental
work submitted by a Texas dentist for one of his patients.
Article 4551d(l) empowers the Texas State Board of Dental Examiners
to adopt rules and regulations pertaining to dental laboratories and dental
technicians. Article 45511(6)(a) requires dental laboratories and dental tech-
nicians to register with the Board as follows:
“(6)(a) It shall be the duty of the owner, owners,
and manager of each dental laboratory in this State to
annually apply to and register each dental laboratory in
this State with which he has any connection or interest
with the Texas State Board of Dental Examiners on or
before March 1 of each calendar year and to pay in con-
p. 1320
The Honorable Carl C. Hardin, Jr., page 2 (H-283)
nection with such application a fee of not less than
$25 nor more than $200 as determined by the Board
according to the needs of the Board to the Dental
Registration Fund, and such application shall set
forth such facts as the Board may require. It shall
also be the duty of each dental laboratory technician
registered pursuant to this Act and as provided by
the Texas State Board of Dental Examiners in its rules
and regulations to annually apply to and to register
with the Texas State Board of Dental Examiners on or
before March 1 of each calendar year, and to pay in
connection with such application a fee of not less than
$10 nor more than $25 as determined by the Board
according to the needs of said Board to the Dental
Registration Fund, and such application shall set forth
such facts as the Board may require; further, a list of
all other employees of a dental laboratory who are not
required to register hereunder shall be furnished quar-
terly to the Texas State Board of Dental Examiners and
to the Dental Laboratory Advisory Board as provided in
the rules of the Board. ”
Subsection (c) of Article 455lf(6) provides:
“(c) From and after the effective date of this Act,
it shall be unlawful for anyone other than a dental labora-
tory or’ dental technician duly registered hereunder, to
fill any prescription for a dental prosthetic appliance or
the repair thereof, to be delivered by a licensed dentist
in this State to a dental patient. ”
An interpretation of Subsection (c) that prohibited out-of-state dental
laboratories or technicians from filling prescriptions for Texas dentists
would clearly be suspect as imposing an undue burden on interstate commerce.
We need not reach that question because we interpret that subsection to pro-
vide no more than that, before any laboratory or technician - regardless of
where it or he is located - can fill a prescription submitted by a Texas dentist
p. 1321
The Honorable Carl C. Hardin, Jr., page 3 (H-283)
for one of his patients, it must first be duly registered in accordance with
the provisions of Article 4551f(6) (a). While Article 4551f(6) (a) requires all
Texas dental laboratories and technicians to register with the Board, it
does not preclude out-of-state laboratories or technicians from also regis-
tering under its provisions if they wish to service Texas dentists, Thus
under Article 455lf(6) of the Dental Practice Act an out-of-state dental
laboratory or technician is not precluded from filling prescriptions for
Texas dentists so long as it or he has registered in accordance with the
provisions of subsection(a).
We incidentally note that is has long been settled that the Legislature
may regulate the practice of dentistry and related skills in this manner
under its police powers. Semler v. Dental Examiners, 294 U.S. 608(1935)
and Carp v. Texas State Board of Examiners in Optometry, 401 S. W. 2d
639 (Tex. Civ. App., Dallas, 1966), rev’d on other grounds, 412 S. W. 2d 307(Tex. 1967). In our opinion any burden imposed upon interstate commerce
by our interpretation of Article 455lf(6) is neither undue nor clearly exces-
sive in relation to the local health benefits to be derived from these provi-
sions. See Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440(1960) and Dixie Dairy Company v. City of Chicago, 355 F. Supp. 1351 (N. D.
Ill. 1973).
SUMMARY
Article 4551f(6) (c), V. T. C. S. , does not prohibit
out-of-state dental laboratories or technicians from
filling prescriptions for Texas dentists so long as they
have registered with the Texas State Board of Dental
Examiners in accordance with the provisions of Article
455lf’(6) (a).
Very truly yours,
JOHN L. HILL
Attorney General of Texas
pn 1322
The Honorable Carl C. Hardin, Jr., page 4 W-284)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1323