Case Information
*1 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 C 0. 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 *2 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 te Bd. of Examiners in Ovtometrv v. C aru Texa 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 m ore of it s Spec' c ifi oroscriotions. We believe th at t he .Leaislature. bv investina the Board with broad -ma ' owers ' the enforce- m ent 0 f thi A t and '(for1 the reoulation 's c' of he D t rat ice t lated Of ODtOmetrV.’ COntemD
that owers to S co rect the ev' s r 11 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 *3 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 Examiners in Optometry, the State Board 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 *4 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 .- . doctor,
JrODraCtiC Examiners: ChirODraCtOr. ' . 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 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 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 *5 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 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. the language section 3 simply will not su- First,
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 uses the term 8chiropractor,g of chiropractic,* *chiropractic,' ‘p '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.,
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 wdoctorO1 if, 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 llchiropractortl for purposes a statute licensing persons who practice the healing arts)! ;2 U.S.C.
5 1395x(r) (defining l'physician'l to include, an er alia, "chiropractor" for purposes 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 @'chiropractic physician," 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 "M. D. " would mislead the public into identi:ying term 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 phrase if that term or phrase does not serve to mislead the public.
SUMMARY The Texas Board of Chiropractic Examiners is authorized to promulgate a rule permitting its licensees to employ term the %hiropractic physician," if the phrase is employed in addition to one the terms or phrases that the board's licensees are required to employ by article 4590e, V.T.C.S. J!k JIM Attorney General of Texas MI+TTOX 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