Can Texas require out-of-state dental labs that do business in the state to register with the Board of Dental Examiners?

Texas AG Opinion JM-992: Can Texas Make Out-of-State Dental Labs Register?

Plain-English summary

Texas licenses and oversees the dental laboratories that make crowns, dentures, bridges, and similar dental appliances. For years, the state's registration requirement reached only labs located in Texas. In 1987 the legislature broadened it: now every dental lab doing business in Texas, including one physically located in another state, has to register each year with the Texas State Board of Dental Examiners. A House committee chairman asked whether that expansion runs into a constitutional wall, specifically the Commerce Clause, which gives Congress power over commerce among the states and, by implication, limits how far a single state can reach into interstate business.

The Attorney General worked through the standard three-part analysis the courts use for this kind of question. First, has Congress stepped in and preempted state regulation here? The Attorney General found no federal law or court decision that strips states of the power to regulate dental laboratories, so there was no preemption problem. Second, does the Texas law discriminate against out-of-state businesses, tilting the playing field toward Texas labs? No, because the registration requirement applies the same way to labs inside and outside the state. A state is allowed to regulate to protect the health and safety of its citizens, and the constitutional concern is with laws that quietly hand home-state businesses an advantage. This one does not.

Third, even a nondiscriminatory law can go too far if it burdens interstate commerce out of proportion to the local benefit. The courts weigh that under the test from Pike v. Bruce Church: an even-handed rule that serves a legitimate local interest and only incidentally affects interstate commerce stands unless the burden is clearly excessive compared to the benefits. A once-a-year registration with the dental board is a light burden set against the state's interest in overseeing who makes dental appliances for Texans.

Putting it together, the Attorney General concluded that on its face, the registration requirement is a legitimate exercise of state power and does not offend the Commerce Clause. The opinion added the usual caution for federal constitutional questions: a state Attorney General can give a confident reading, but a final, definitive answer is available only from the federal courts.

Currency note

This opinion was issued in 1988. 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.

The dental-laboratory registration statute (then V.T.C.S. article 4551f) has since been recodified into the Occupations Code, and its registration requirements have their own later history. Dormant Commerce Clause doctrine has also continued to develop in the federal courts since 1988. The framework the Attorney General applied (preemption, then discrimination, then the Pike balancing test) remains the standard structure, but anyone evaluating a state business-registration requirement today should check the current Occupations Code and current federal case law rather than relying on the 1988 article and cases here.

Who this opinion affected (as of 1988)

Out-of-state dental laboratories: The opinion concluded that the state could require labs located elsewhere but doing business in Texas to register annually with the dental board, and that this requirement was a facially legitimate exercise of state power.

The Texas State Board of Dental Examiners: The opinion supported the board's authority to enforce the expanded registration requirement against in-state and out-of-state labs alike.

In-state dental laboratories: The opinion noted the requirement applied evenhandedly to Texas and non-Texas labs, so it did not create a discriminatory advantage for home-state businesses.

Common questions

Can Texas require an out-of-state dental lab to register with the state dental board?
In this opinion the Attorney General concluded that the 1987 amendment requiring all dental labs doing business in Texas, including out-of-state labs, to register annually is, on its face, a legitimate exercise of state power.

Does that requirement violate the Commerce Clause?
The Attorney General concluded it does not, because there is no federal preemption, the requirement applies evenhandedly to in-state and out-of-state labs, and its burden on interstate commerce is not clearly excessive relative to the local health interest.

Why does it matter that the rule applies to both in-state and out-of-state labs?
Because the Commerce Clause is chiefly concerned with laws that discriminate against out-of-state businesses. A rule that treats local and interstate interests equally does not give home-state businesses an unfair advantage.

Is this a final answer?
No. The Attorney General noted that a final, definitive answer on a federal constitutional question like this is available only in the federal courts.

Background and statutory framework

The 70th Legislature amended article 4551f, section 6, V.T.C.S., to provide that it is the duty of the owner or manager of each dental laboratory to annually apply to and register each dental laboratory doing business in the state with the Texas State Board of Dental Examiners. V.T.C.S. art. 4551f, § 6(a), as amended by Acts 1987, 70th Leg., ch. 1095, § 2, at 3714. Prior law limited the registration requirement to laboratories located in the state and did not reach out-of-state laboratories doing business in the state. The question was whether Congress's power to regulate commerce among the several states (U.S. Const. art. I, § 8, cl. 3) prohibits such state regulation.

The Commerce Clause, through the Supremacy Clause, permits the federal government to preempt by specific legislation state regulations contrary to the goal of a uniform, non-discriminatory national marketplace. The Attorney General found no federal legislation or judicial decision expressly denying states the power to regulate the operation of dental laboratories. Absent preemption, courts examine the state law for discrimination aimed solely at out-of-state businesses, because the text of the Commerce Clause has been read to contain self-executing limits on state impingement of interstate commerce even without congressional action.

In defining acceptable state regulation of interstate commerce, courts first recognize that states may apply some regulation to protect the health and safety of their citizens. Willson v. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829). The chief concern is whether the exercise of state power affects local and interstate interests equally, so as to negate the possibility that the police power is a disguised mechanism to give unfair advantage to home-state commercial interests. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959). Because the registration provisions apply to dental laboratories located both within and without the state, the requirement does not discriminate against national interests.

Finally, absent both preemptive federal legislation and an overtly discriminatory purpose, courts apply a balancing test: where a statute regulates evenhandedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on commerce is clearly excessive in relation to the putative local benefits; if a legitimate local purpose is found, the question becomes one of degree, and the tolerable burden depends on the nature of the local interest and whether it could be promoted as well with a lesser impact on interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Although a final, definitive answer is available only in the federal courts, the Attorney General was confident that, on its face, section 6 of article 4551f is a legitimate exercise of state power.

Citations

Statutory authority:

• V.T.C.S. art. 4551f, § 6(a) (annual registration of dental laboratories doing business in Texas)
• U.S. Const. art. I, § 8, cl. 3 (Commerce Clause)

Cases:

• Willson v. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829)
• Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)
• Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-992
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0992.pdf

Original opinion text

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

December 12, 1988

Honorable Brad Wright
Chairman
Public Health Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78769

Opinion No. JM-992

Re: Constitutionality of an amendment to article 4551f, V.T.C.S., which requires dental laboratories doing business in Texas to register with the Board of Dental Examiners (RQ-1571)

Dear Representative Wright:

You ask about the provision in article 4551f, V.T.C.S., which requires dental laboratories doing business in Texas to register with the Board of Dental Examiners. We find nothing in the United States Constitution or any of the legislative acts of the federal congress which would place such a provision beyond the powers of the legislature.

The 70th Legislature amended the relevant part of article 4551f, section 6, V.T.C.S., to read:

It shall be the duty of the owner or manager of each dental laboratory to annually apply to and register each dental laboratory doing business in this State with which that person has any connection or interest with the Texas State Board of Dental Examiners . . . .

V.T.C.S. art. 4551f, § 6(a), as amended by Acts 1987, 70th Leg., ch. 1095, § 2, at 3714. (Emphasis added.) Prior law limited the registration requirement to dental laboratories located in the state and did not reach out-of-state laboratories doing business in the state.

You ask whether the power of the federal congress to "regulate commerce among the several states" prohibits such state regulation. See U.S. Const. art. I, § 8, cl. 3.

The Commerce Clause of the Federal Constitution, through the application of the Supremacy Clause, permits the federal government to preempt by specific legislation state regulations which are contrary to the goal of providing a uniform, non-discriminatory national marketplace for goods and services. See generally Rotunda, Nowak, and Young, Treatise on Constitutional Law: Substance and Procedure § 11.1, at 579. In the case at hand, we can find no federal legislation or judicial decisions which expressly deny to the states the power to adopt legislation regulating the operation of dental laboratories.

If there is no preemption of state power, then the courts examine the state law for evidence of discrimination aimed solely at out-of-state businesses. As the authors of a leading treatise on constitutional law note:

[T]he text of the commerce clause provides no overt restraint of state impingement of interstate commerce in the absence of Congressional legislation. It has been left to the [courts] to interpret, as inherent in that affirmative grant of power, self-executing limitations on the scope of permissible state regulation.

Rotunda, Nowak, and Young, supra, at 578.

Thus, in the absence of preemptive legislation by the national government, the courts must define the proper contours of acceptable state regulation of interstate commerce. First, they recognize that the states may apply some regulation to interstate commerce in order to protect the health and safety of their citizens. See, e.g., Willson v. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829).

In every case where the courts examine actions taken by states ostensibly to protect their citizens, they are concerned chiefly with whether the exercise of state power affects both local and interstate interests equally, so as to negate the possibility that the use of the police power is in fact a disguised mechanism to give unfair advantage to home-state commercial interests. See, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959); Rotunda, Nowak, and Young, supra, § 11.6, at 590-593. See also Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1 (1940).

In the statutory provision at hand, it is important to note that the registration provisions apply to dental laboratories located both within and without the state. Thus, as provided for in the statute, the requirement does not discriminate against national interests.

Finally, in the absence of both a federal statute preempting a state regulation and an overtly discriminatory purpose in the state law, the courts will apply the following factors to determine the constitutionality of state regulation challenged under the commerce clause:

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will . . . depend on the nature of the local interest involved, and whether it could be promoted as well with a lesser impact on interstate activities. (Citation omitted.)

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). See also Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425 (1982); Maltz, How Much Regulation is Too Much -- An Examination of Commerce Clause Jurisprudence, 50 Geo. Wash. L. Rev. 47 (1981).

Although a final, definitive answer to your question is available only in the federal courts, we are confident that, on its face, section 6 of article 4551f is a legitimate exercise of state power.

SUMMARY

The state may regulate interstate commerce in the interest of protecting the health and welfare of its citizens. In the absence of federal legislation preempting state regulation of a given area, the courts will examine the exercise by the state of its police powers for evidence of a discriminatory purpose and a real relationship to a legitimate state purpose.

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

RICK GILPIN
Chairman, Opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General