Case Information

*1 OFFICE OF THE Al-l-ORNEY GENERAL OF TEXAS AUSTIN

Honorable Carl C. tludla, Jr.,

Exeautive secrotery Tezae state Boerd or Derrkl Eeam1rYre

bet irr, mx8e

mar Sir:

l yove qrret lone y thie departwnt. Wo quote Jotw

lag eeverel lere dleplay a&e uhlch my l tteotlorr l e Attorwy r0r the <or m~tai mm8~8.

tar coaehtesclble brieritbg, it is my oplaloa 8de aPe la dinat vloletioa or

tint these dieplay Artlale 752b the Ibwl code, paragrcrphe (e) and (a), end the laet in uld article en amemdod. I arrived et thle dealeloa b7 tlrtue ai tba len&hy taoee, Ruet ve. Yleoouri Detrtal dleeueslon soard, 155 s. u. (2d) 80; winberry, et al. ve. *2 Honorable Carl C. liardla. Jr., - Page 2

Ballihaa, et al., 197 R. B. 552, Johnoon vo. Board 0r Dental Examiners, 134 Fed. (26) 9 and Hodern System et al, vs. state Board 0r Dental Ex- Dentists Inc., aminers 0r wis., 256 8. W. 922, and I would appreciate an opinion from you as to whether the enuloeed ads are in violation 0r the paragraphs 0r the article alted.

‘I em ‘also enoloolng a copy 0r a Brief prepsred for Dr. B. Carl Holder, President of the Texas State Board of Dental Bxamlnece, in connection vlth the last Artlclo 0r the Penal code, as amended; and, after an examlnatlon of thlo Brief, I would appre- ciate a separate written opinion on your conetructlon or the article oovered by my Brief.”

In our Oplnlon Ho: O-1992, we conetruedcArtlale 752b, Vernon’s Annotated Penal Code of Texee, and stated a8 rollowo;

“IWour letter you ask the rollowing questions: “@In other words under Article -supra, taken as a whole, may dentist, without enfrlnglng the criminal lava, advertise in ray menner and vith as much space as he desires, so long as he does not v$o+ate one of the specific 1s his advertising prohlbltlone in subsection through ‘t “, or

limited by the provleo, a mere statement of his nams, degree, office location, ete?’

“In answering this question we would first point out aa stated above that apparent intention of the Legle- lature ~0s to preserve a long standing customary right to the dentist and not to restrict him. Certainly since this la a criminal statute and must be strictly construed, it vould seem clear that the dentist could advertise any manner and with as much apace as he desires so loag as his advertising did not fall under the prohibited practices of the sxtlcle in question.

‘%fe therefore respectfully advise that Article 752b, Penal Code as amended, is valid and constitutional and the proviso. at the end of said article Is permiselve rather than restrictive. *

c

Honorable Carl C. Rardln. Jr., - Pegs 3

We believe that the foregoing answer0 your qwetlon “B” .

The last peragraph of Article mey not be made the basis for a criminal proseautlon slnce said paragraph prohibits no practice whatsoever, but merely lndlaates the type of edver- tlslng which a dentist may employ vlthout violating any of the It 1s our .oplnlon, therefore, that ths provlsloas the Act. advertisements submitted do not constitute violationa of the said paragraph.

We do not believe that a of the advertloemsnts sub- mitted by you violate subseetloa (‘0 of Article for 7

Opinion Ro. O-2743 ooncernlng that subsection, ue statedr “%orge display algnat mentioned in this sub- ::.* division, when considered la connection with other thQngs mentlooad eubdlrisloh, aust be am- etrwd as something other than newspaper adventlee- .I merits. *

In our oplnlon, each of the advertleenmnts oonetltutea a fact situation to be deternlwd by the jury as to whether or not the etatemsnts mad8 lo such advertisements are "of such character tending to mislead or deaelve the public” and thereby a violation of suboectlon (e) of Article 7521,.

We trust that thio satisfactorily answers your in- quiry.

Yours very truly ATTORNEY GERfGRAL OF TFZAS James II. Ware Ks sin?