Can a Texas chiropractor call themselves a 'chiropractic physician'?

Texas AG Opinion JM-1279: Can a Texas Chiropractor Use the Title "Chiropractic Physician"?

Plain-English summary

The Texas Board of Chiropractic Examiners wanted to adopt a rule letting chiropractors call themselves "chiropractic physician," and asked the Attorney General whether it had the power to do that. The Attorney General said yes, with one condition: the chiropractor also has to use one of the designations the Healing Art Identification Act (article 4590e, V.T.C.S.) already requires, like "chiropractor" or "doctor of chiropractic, D.C." The new title can be used in addition to a required one, not instead of it.

The reasoning came in two parts. First, does the board have the authority to adopt the rule at all? Administrative agencies can make rules when a statute gives them express authority or when the authority is implied because it is necessary to carry out the statute's purpose. The Texas Chiropractic Act (article 4512b) gives the board broad power in section 4(d) to "adopt guidelines for educational preparation and acceptable practices for all aspects of the practice of chiropractic." The Attorney General read that broad grant to impliedly include the power to adopt a rule about the titles chiropractors may use, drawing on cases where Texas courts found similar implied authority, most directly Texas State Board of Examiners in Optometry v. Carp, where the Texas Supreme Court upheld an optometry board rule regulating the trade names optometrists could use even though no statute expressly authorized it.

Second, does another statute forbid the rule? Someone had argued that article 4590e, the Healing Art Identification Act, lists the exact titles each kind of licensed healer must use and therefore bars any title not on the list. The Attorney General disagreed. He read article 4590e to set minimum requirements, not an exclusive list. Its key language says the listed identifications are "the legally required identifications, one of which must be used." Nothing in the act says a professional may use only those titles. As long as a chiropractor uses one of the required designations, there is no violation, and the statute is silent about whether the licensee can add another designation on top.

Two more points supported that reading. The Chiropractic Act itself (article 4512b, section 1) sweeps in anyone who holds himself out using "chiropractor," "chiropractic," or "any derivative" of those terms, which shows the Legislature knew chiropractors use titles beyond the bare list. And practically, article 4590e already lets every regulated professional use "doctor" tied to their healing art, and lets osteopaths and naturopaths use "physician." Since "doctor" and "physician" are functionally synonymous, a chiropractor who already may call himself a "doctor" of chiropractic would not mislead anyone by using "chiropractic physician." The Attorney General cited dictionaries and cases treating the two words as equivalent, plus a podiatry statute that uses "podiatric physician" and an Oklahoma Attorney General opinion reading "physician" to include chiropractors.

The opinion was careful to distinguish a case where a court upheld the act's bar on an osteopath calling himself "M.D." (Maceluch v. Wysong): that use would have misled the public into thinking the osteopath held a medical degree. Here, by contrast, "chiropractic physician" keeps the word "chiropractic" front and center, so it does not create the same risk of confusion.

Currency note

This opinion was issued in 1990 and construes the Texas Chiropractic Act (former article 4512b) and the Healing Art Identification Act (former article 4590e), both since recodified into the Occupations Code and amended, along with changes to related boards and titles. Treat this page as historical context, not current legal advice. Anyone relying on a professional-title rule should check the current Occupations Code and board rules first.

Who this opinion affected (as of 1990)

The Texas Board of Chiropractic Examiners: The opinion confirmed the board had implied authority under article 4512b, section 4(d) to adopt a rule permitting the "chiropractic physician" title, subject to the required-designation condition.

Licensed chiropractors: The opinion opened the door for chiropractors to use "chiropractic physician" as an added title, provided they still used one of the article 4590e designations and did not drop the required one.

Other healing-art professionals and boards: By reading article 4590e as a floor rather than an exclusive ceiling, the opinion offered a template other boards could consider for additional non-misleading titles, while reaffirming the limits illustrated by the osteopath "M.D." case.

Common questions

Can the chiropractic board let chiropractors use "chiropractic physician"?
Yes. The opinion concluded the board has implied authority under its broad rulemaking power (article 4512b, section 4(d)) to adopt such a rule.

Does the chiropractor have to give up "chiropractor" or "D.C."?
No. The title "chiropractic physician" may be used only in addition to one of the designations required by article 4590e, not as a replacement for it.

Doesn't the Healing Art Identification Act list the only titles a chiropractor can use?
No. The opinion read article 4590e as setting minimum required identifications, not an exclusive list. Using one of the required designations avoids a violation, and the act is silent about adding another non-misleading title.

Isn't calling a chiropractor a "physician" misleading?
The opinion concluded it is not, because "doctor" and "physician" are functionally synonymous and the statute already lets a chiropractor use "doctor" tied to chiropractic. Keeping the word "chiropractic" in the title avoids the confusion that led a court to bar an osteopath from calling himself "M.D."

Background and statutory framework

The Texas Chiropractic Act, article 4512b, V.T.C.S., creates the Texas Board of Chiropractic Examiners and governs the registration, examination, licensure, and practice of chiropractors. The board asked whether it could adopt a rule authorizing a chiropractor to use the title "chiropractic physician." The Attorney General framed the question as whether the board could permit that title in addition to one of the designations required by article 4590e, V.T.C.S., and concluded it could.

On rulemaking authority, the opinion applied the settled rule that agencies may adopt rules under express authority or implied authority necessary to accomplish a statute's purpose (Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968); Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73 (Tex. 1939)), so a statute authorizing an agency to regulate a profession impliedly authorizes rules to accomplish that purpose (Railroad Comm'n v. Shell Oil Co., 161 S.W.2d 1022 (Tex. 1942); Dallas County Bail Bond Bd. v. Stein, 771 S.W.2d 577 (Tex. App. - Dallas 1989, writ denied)), provided the rules are reasonable and within the delegated powers. It relied especially on Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967), cert. denied, 389 U.S. 52 (1968), where the Texas Supreme Court upheld an optometry board rule regulating optometrists' trade names as within the board's implied authority to enforce the act and regulate the practice (id. at 309, 313), and Kee v. Baber, 303 S.W.2d 376 (Tex. 1957) (implied authority to regulate optometrist advertising). Section 4(d) of article 4512b directs the board to "adopt guidelines for educational preparation and acceptable practices for all aspects of the practice of chiropractic," which the opinion construed to confer the implied authority to adopt the requested rule.

On the objection that article 4590e (the Healing Art Identification Act) bars any title not listed, the opinion construed section 3 to require use of one of the listed designations (for chiropractors: "chiropractor; doctor, D.C.; doctor of chiropractic, D.C.") but not to make the list exclusive. Section 3 says the listed identifications are "the legally required identifications, one of which must be used," and contains no language limiting a professional to only those titles; a violation is a misdemeanor (article 4590e, §§ 5, 6). The opinion reinforced this by noting that article 4512b, section 1 defines the practice of chiropractic to include holding oneself out using "chiropractor," "chiropractic," or "any derivative" of those terms, showing legislative awareness that chiropractors use additional designations. It further reasoned that because "doctor" and "physician" are functionally synonymous, and article 4590e already lets a chiropractor use "doctor" tied to chiropractic (and lets osteopaths and naturopaths use "physician"), the added title "chiropractic physician" would not mislead the public (citing Milling v. State, 150 S.W. 434 (Tex. Crim. App. 1912); Walters v. Building Maintenance Service, Inc., 291 S.W.2d 377 (Tex. Civ. App. - Dallas 1956, no writ); Barfield v. State, 110 P.2d 316 (Okla. Crim. App. 1941); Thomas v. Carlton Hosiery Mills, 81 A.2d 365 (N.J. 1951); see also V.T.C.S. art. 4567b (podiatry includes a "podiatric physician"); Op. Okla. Att'y Gen. No. 78-173 (1978); 42 U.S.C. § 1395x(r) (defining "physician" to include a "chiropractor" for certain federal purposes)). A footnote distinguished Maceluch v. Wysong, 680 F.2d 1062 (5th Cir. 1982), which upheld barring an osteopath from using "M.D." because that would mislead the public into assuming a doctor-of-medicine degree; here the retained word "chiropractic" avoids that confusion.

Citations

Statutory authorities:

• V.T.C.S. art. 4512b (Texas Chiropractic Act); § 1 (definition of practicing chiropractic, including "any derivative" of the specified terms); § 4(d) (board to adopt guidelines for acceptable practices)
• V.T.C.S. art. 4590e (Healing Art Identification Act); § 3 (required identifications); §§ 5, 6 (penalties)
• V.T.C.S. art. 4567b (podiatry practice includes "podiatric physician")
• 42 U.S.C. § 1395x(r) (federal definition of "physician" including "chiropractor" for certain purposes)

Cases:

• Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968)
• Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73 (Tex. 1939)
• Railroad Comm'n v. Shell Oil Co., 161 S.W.2d 1022 (Tex. 1942)
• Dallas County Bail Bond Bd. v. Stein, 771 S.W.2d 577 (Tex. App. - Dallas 1989, writ denied)
• Texas State Bd. of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967), cert. denied, 389 U.S. 52 (1968)
• Kee v. Baber, 303 S.W.2d 376 (Tex. 1957)
• Maceluch v. Wysong, 680 F.2d 1062 (5th Cir. 1982)
• Milling v. State, 150 S.W. 434 (Tex. Crim. App. 1912)
• Walters v. Building Maintenance Service, Inc., 291 S.W.2d 377 (Tex. Civ. App. - Dallas 1956, no writ)
• Barfield v. State, 110 P.2d 316 (Okla. Crim. App. 1941)
• Thomas v. Carlton Hosiery Mills, 81 A.2d 365 (N.J. 1951)

Other authority referenced:

• Op. Okla. Att'y Gen. No. 78-173 (1978) ("physician" includes "chiropractor" under a healing-arts licensing statute)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1279
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1279.pdf

Original opinion text

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

December 28, 1990

Dr. James E. Franklin, D.C.
President
Texas Board of Chiropractic Examiners
8716 MoPac Expressway North, Suite 301
Austin, Texas 78759

Opinion No. JM-1279

Re: Whether a chiropractor may use the title "chiropractic physician" (RQ-2133)

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 express authority to do so is conferred by statute or when the 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 Co., 131 S.W.2d 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); Dallas County Bail Bond Bd. v. Stein, 771 S.W.2d 577 (Tex. App. - Dallas 1989, writ denied). Whether promulgated on the basis of express authority or implied authority, any rules adopted must be reasonable and not in excess of any powers delegated. Gerst v. Oak Cliff Sav. & Loan Ass'n, supra; [additional citation illegible in scan], 218 S.W.2d [page illegible].

In Texas State Bd. of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967), cert. denied, 389 U.S. 52 (1968), the Texas Supreme Court upheld a rule, denominated the Professional Responsibility Rule, adopted by the board that, inter alia, regulated the trade names that optometrists 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 performance 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 appeals erred in its holding that the Professional Responsibility Rule added new and inconsistent provisions to the Optometry Act. To the contrary, the rule's provisions are in harmony with the general objectives of the act and referable to and consistent with one or more of its specific proscriptions. We believe that the Legislature, by investing the Board with broad rule-making powers for the enforcement of this Act and for the regulation of the practice of optometry, contemplated that the Board would use these powers to correct the evils generally classified in article 4563 or some other provision of the Optometry 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.)

Id. at 313; see also Kee v. Baber, 303 S.W.2d 376 (Tex. 1957) (holding that board possessed implied authority to adopt rule that regulated certain advertising by optometrists).

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 educational 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, prohibits 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 healing art:

(1) If licensed by the Texas State Board of Medical Examiners on the basis of the degree Doctor of Medicine: physician and/or surgeon, M.D.; doctor, M.D.; doctor of medicine, M.D.;

(2) If licensed by the Texas State Board of Medical Examiners on the basis of the degree Doctor of Osteopathy: physician and/or surgeon, D.O.; Osteopathic physician and/or surgeon; doctor, D.O.; doctor of osteopathy; osteopath; D.O.

(3) If licensed by the State Board of Dental Examiners: dentist; doctor, D.D.S.; doctor of dental surgery; D.D.S.; doctor of dental medicine, D.M.D.

(4) If licensed by the Texas Board of Chiropractic Examiners: chiropractor; doctor, D.C.; doctor of chiropractic, D.C.

(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.; podiatrist; doctor, D.P.M.; Doctor of Podiatric Medicine; D.P.M.;

(7) If licensed by the State Board of Naturopathic Examiners: Naturopathic physician; physician, N.D.; doctor of Naturopathy; N.D.; 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 exclusive list of titles that those professionals regulated by the statute may employ. Rather, we construe the statute to 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 professional 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 sustain a reading that the specified designations comprise an exclusive list. The relevant language of section 3 provides: "The following are the legally required identifications, one of which must be used by practitioners of the healing art . . . ." (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 designations 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 "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with his name. (Emphasis added.)

It is clear that the legislature meant to include within the ambit of the act those persons who employ not only the term "chiropractor," but also those persons who employ "any derivative" 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 "chiropractic physician." Section 3 of article 4590e, V.T.C.S., authorizes each of the professionals regulated by the act to employ the term "doctor" 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 "physician" as well. The act already permits a practitioner of chiropractic to employ the term "doctor" if, in addition, he identifies that the healing art for which he possesses a license is that of chiropractic. The terms "doctor" and "physician" are functionally synonymous; thus a chiropractor's employing the term would not be misleading.[Footnote 1] See Milling v. State, 150 S.W. 434 (Tex. Crim. App. 1912); Walters v. Building Maintenance Service, Inc., 291 S.W.2d 377 (Tex. Civ. App. - Dallas 1956, no writ); Barfield v. State, 110 P.2d 316 (Okla. Crim. App. 1941); Thomas v. Carlton Hosiery Mills, 81 A.2d 365 (N.J. 1951); see also V.T.C.S. art. 4567b (practice of podiatry to include, inter alia, a "podiatric physician"); Op. Okla. Att'y Gen. No. 78-173 (1978) (holding that "physician" includes the term "chiropractor" for purposes of a statute licensing persons who practice the healing arts); 42 U.S.C. § 1395x(r) (defining "physician" to include, inter alia, "chiropractor" for purposes of federal public health and welfare statutes).

We conclude that the Texas Board of Chiropractic Examiners 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.

SUMMARY

The Texas Board of Chiropractic Examiners is authorized to promulgate a rule permitting its licensees to employ the term "chiropractic 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.

JIM MATTOX
Attorney General of Texas

MARY KELLER
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

Footnote 1: We note that our construction of article 4590e, V.T.C.S., in no way conflicts with Maceluch v. Wysong, 680 F.2d 1062 (5th Cir. 1982). In that case the court 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." instead. The court held, inter alia, that permitting an osteopath to employ the identifying 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.