What procedures can a Texas therapeutic optometrist perform after the 1999 change to the surgery definition?

Texas AG Opinion JC-0097: "Surgery" Definition and the Therapeutic Optometrist

Plain-English summary

Bruce Levy, Executive Director of the Texas State Board of Medical Examiners, asked the Attorney General to reconsider Attorney General Opinion DM-425 (1996), which had addressed whether a therapeutic optometrist could perform eleven procedures the Texas Department of Health had listed. The Texas Optometry Act forbids a therapeutic optometrist to perform surgery. When DM-425 issued, the Act did not define "surgery," so that opinion used the ordinary meaning of the word and concluded that a therapeutic optometrist could perform a listed procedure as long as it was not a "cutting operation," with the further conclusion that whether any procedure involved a cutting operation was a question of fact.

In 1999, the Seventy-sixth Legislature amended the Optometry Act to add a statutory definition of "surgery." The new definition covered any procedure using instruments (including lasers, scalpels, or needles) in which human tissue is cut, burned, vaporized, or otherwise altered by mechanical means, laser, or ionizing radiation, as well as procedures requiring closure by suturing, clamping, or another device, while excluding a noninvasive procedure to remove a superficial foreign body in the conjunctiva, eyelid, or corneal epithelium that has not perforated the Bowman's membrane.

The Attorney General concluded that, because a clear statutory definition now existed, the statutory definition controlled and there was no need to look to the ordinary meaning. To the extent DM-425 defined "surgery" by the term's ordinary meaning, it was superseded by statute. Whether any of the eleven listed procedures was "surgery" under the new statutory definition remained a question of fact.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did this opinion say which procedures a therapeutic optometrist could perform?
No. It concluded that the new statutory definition of "surgery" controlled and that whether any particular listed procedure met that definition was a question of fact.

What happened to the earlier opinion, DM-425?
To the extent DM-425 had defined "surgery" by the term's ordinary meaning, this opinion concluded it was superseded by the 1999 statutory definition.

What did the new statute say "surgery" means?
It defined surgery as a procedure using instruments (lasers, scalpels, needles, and the like) in which tissue is cut, burned, vaporized, or otherwise altered, plus procedures requiring closure by suturing or clamping, and it excluded a noninvasive removal of a superficial foreign body that has not perforated the Bowman's membrane.

Why did the statutory definition matter so much?
Because when a term is clearly defined by an applicable statute, the opinion explained, there is no need to resort to the ordinary meaning or any other definition.

Background and statutory framework

The Texas Optometry Act, codified at Texas Revised Civil Statutes article 4552-1.02, prohibited a therapeutic optometrist from performing surgery (article 4552-1.02(7)). Attorney General Opinion DM-425 had interpreted "surgery" by its ordinary meaning because the Act then lacked a definition. The 1999 amendment, enacted as H.B. 1051, added the definition of "surgery" at article 4552-1.02(11). Applying the rule that a clear statutory definition displaces resort to ordinary meaning, the Attorney General held the new definition controlling and treated DM-425's ordinary-meaning approach as superseded, leaving the application of the statutory definition to the listed procedures as a fact question.

Citations

Statutes:

• Tex. Rev. Civ. Stat. Ann. art. 4552-1.02(7)
• Tex. Rev. Civ. Stat. Ann. art. 4552-1.02(11)

Attorney General opinions referenced: DM-425 (1996).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0097
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0097.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

August 23, 1999

Bruce Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
P.O. Box 2018
Austin, Texas 78768-2018

Opinion No. JC-0097

Re: Whether a therapeutic optometrist may perform certain procedures; request for reconsideration of Attorney General Opinion DM-425 (1996) (RQ-0025)

Dear Dr. Levy:

You ask us to reconsider the conclusion reached by this office in Attorney General Opinion DM-425 (1996). In that opinion, the Texas Department of Health listed eleven procedures and asked whether the procedures could be performed by a therapeutic optometrist. As you know, the Texas Optometry Act forbids a therapeutic optometrist to perform surgery. See Act of May 20, 1999, 76th Leg., R.S., H.B. 1051, § 1 (to be codified at TEX. REV. CIV. STAT. ANN. art. 4552-1.02(7)). Since the term "surgery" was not defined by the Optometry Act at the time the opinion was issued, the opinion relied on the ordinary definition of surgery to conclude that a therapeutic optometrist could perform a listed procedure if the procedure was not a "cutting operation." The opinion concluded further that whether any of the procedures involved a cutting operation was a question of fact.

This year the Seventy-sixth Legislature amended the Texas Optometry Act to include a definition of "surgery:"

"Surgery" means any procedure using instruments, including, lasers, scalpels, or needles, in which human tissue is cut, burned, vaporized, or otherwise altered by any mechanical means, laser, or ionizing radiation. The term includes procedures using instruments that require closure by suturing, clamping, or another device. The term does not include a noninvasive procedure to remove a superficial foreign body in the conjunctiva, eyelid, or corneal epithelium that has not perforated the Bowman's membrane.

Act of May 20, 1999, 76th Leg., R.S., H.B. 1051, § 1 (to be codified at TEX. REV. CIV. STAT. ANN. art. 4552-1.02(11)).

When a term is clearly defined by an applicable statute, we need not look to the ordinary definition of the term or any other definition. Because the Optometry Act now defines "surgery," the statutory definition controls for purposes of determining what procedures constitute "surgery." Attorney General Opinion DM-425 is therefore superseded by statute to the extent it defines "surgery" according to the term's ordinary meaning. Whether any of the eleven procedures listed in the original opinion request is "surgery" under the statutory definition remains a question of fact.

SUMMARY

The Texas Optometry Act, Texas Revised Civil Statutes article 4552-1.02, forbids a therapeutic optometrist to perform surgery. As amended by the Seventy-sixth Legislature, the Act expressly defines "surgery." Attorney General Opinion DM-425 (1996) defined "surgery" under the Act according to the term's ordinary meaning. To the extent it defined "surgery" according to the term's ordinary meaning, Attorney General Opinion DM-425 is superseded by statute.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee