KEE v. BABER

NORVELL, Justice.

This is a direct appeal from an order of the District Court of Travis County, 53rd Judicial District, declaring the validity of certain rules adopted by the Texas State Board of Examiners in Optometry and refusing to grant a permanent injunction restraining their enforcement. Article 5, § 3-b, Constitution of Texas, Vernon's Ann. St., Article 1738a, Vernon's Ann.Tex.Civ. Stats., Rule 499-a, Texas Rules of Civil Procedure. Dr. John B. Kee, plaintiff below and intervenors, Drs. Robert K. Shannon, Ellis Carp and Stanley C. Pearle contended that three rules promulgated by defendants, Dr. W. F. Baber and others as members of Texas State Board of Examiners in Optometry were void as being contrary to and inconsistent with the Legislative Act relating to the practice of Optometry. Article 4552 et seq., Vernon's Ann.Tex.Civ.Stats. The rules are referred to in the briefs as (a) the basic competence rule, (b) the "bait" advertising rule and (c) the corporate practice rule. It was stipulated below that these rules were duly promulgated by the Texas State Board of Examiners in Optometry and that the question presented by the suit related to the power of the Board to promulgate and enforce such rules.

In oral argument the attorney for appellants-intervenors described optometry as being a quasi-profession in that an optometrist not only performs professional duties such as measuring and examining eyes preliminary to prescribing ophthalmic lenses, but also occupies the position of a merchant or tradesman in that he sells manufactured products such as lenses, frames, spectacles and other optical goods. It is not inaccurate to describe this as a dispute between two groups of optometrists, one of which emphasizes the merchandising factor of the profession or occupation and contends that the cost of suitable glasses for the using public may be greatly reduced by eliminating numerous unnecessary steps and practices which are insisted upon by the opposing group who regard such procedures and regulations as necessary to safeguard the public health. To our minds this basic conflict in Texas has been resolved by the Legislature and the optometrists themselves in favor of the group favoring strict regulation essentially by the profession itself. The trial court was correct in so holding and accordingly the judgment appealed from will be affirmed.

There are certain areas of agreement conceded by appellants which narrow the questions before us. It is recognized that "the Legislature has the power to define optometry, to prescribe the duties of optometrists, to provide for `basic competence', to prohibit `price and bait advertising' and to prohibit `corporate practice,'" — but it is asserted that rules or regulations cannot conflict with the statutes nor can they subvert or enlarge on the statutory authority or policy.

It must likewise be conceded that broad regulatory powers, many of which are somewhat discretionary in nature, are delegated to the Texas State Board of Examiners in Optometry, which for convenience we shall hereafter refer to as the Optometry Board. Article 4556, Vernon's Ann.Tex.Civ.Stats. provides that "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." This authority is similar in scope to that vested in the State Board of Medical Examiners under the Medical Practice Act1 and in this Court under the State Bar Act,2 and differs from the narrower delegation contained in the Dental Practice Act3 and other similar Acts relating to administrative boards that could be mentioned.4 The Optometry Board is empowered not only to adopt regulations necessary for the performance of its duties but also such rules as are necessary for "the regulation of the practice of optometry."

It is apparent that the Optometry Board in adopting the three rules now under attack was attempting to implement the statutory provisions relating to the licensing of applicants and the revocation of such licenses. We here set out the pertinent provisions of Article 4563, Vernon's Ann.Tex. Civ.Stats. and in brackets thereunder the Attorney General's accurate summations of the contents of the rules relating to each paragraph of the statute:

The rebuttable presumption is a device now generally recognized as valid when reasonably applied in judicial trials or administrative hearings. The power of the Legislature or an administrative board having rule-making authority to prescribe such procedures cannot be questioned unless it clearly appears that the rebuttable presumption bears no logical relationship to the ultimate fact or conclusion sought to be established. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78; Helvering v. Rankin, 295 U.S. 123, 55 S.Ct. 732, 79 L.Ed. 1343; Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; 73 C.J.S. Public Administrative Bodies and Procedure § 124, p. 444.

The gravamen of appellants' attack upon the three rules in question are that they are inconsistent with the provisions of Article 4563. We do not so regard them. The provisions of the legislative enactment are broad and general in scope. An intention to vest the Optometry Board with authority to fill in the details relating to the proscribed actions by members of the profession is indicated. While the rules in a sense relate to procedures before the Optometry Board, the circumstance that such Board is authorized to prescribe such "rules and regulations as may be necessary for * * * the regulation of the practice of optometry" lends support to a construction favoring a broad and liberal delegation of authority. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Finlay Straus, Inc. v. University of State of New York, 186 Misc. 242, 59 N.Y.S.2d 429; Finlay Straus, Inc. v. University of State of New York, 270 App.Div. 1060, 62 N.Y.S.2d 892; Strauss v. University of State of New York, 282 App.Div. 593, 125 N.Y.S.2d 821; Strauss v. University of State of New York, 2 N.Y.2d 464, 141 N.E.2d 595; Fisher v. Schumacher, Fla., 72 So.2d 804.

Section (b) of Article 4563 proscribes "fraud, deceit or misrepresentation in the practice of optometry." Misleading advertising is a familiar species of deceit. The "bait advertising rule" simply places upon the optometrist advertising that his services or supplies are better or cheaper than those supplied by his competitors, the burden of showing that such statements are true and hence not fraudulent. The presumption raised by the rule is rebuttable, it bears a logical relationship with the conclusion — that of fraud — condemned by the statute. It in no way violates the provisions of Articles 773 and 774 of Vernon's Ann.Pen. Code.5 Similar rules or outright proscriptions relating to advertising have been upheld in other jurisdictions. Ritholz v. Commonwealth of Virginia, 184 Va. 339, 35 S.E.2d 210; Abelson's Inc. v. New Jersey State Board of Optomertrists, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929; State v. Rones, 223 La. 839, 67 So.2d 99; Seifert v. Buhl Optical Co., 276 Mich. 692, 268 N.W. 784; Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378. See also the "Strauss cases" from New York, heretofore cited. For a discussion of the constitutional aspects of the problem involving advertising and administrative regulation of a profession affecting the public health, see Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. It follows that the validity of the bait advertising rule must be sustained.6

In their attack upon the "basic competence rule" appellants assert that this provision constitutes an attempt by the Optometry Board "to tell other qualified licensed optometrists how to practice optometry" and subjects anyone who disagrees with the procedures prescribed by the Board to a presumption of sub-standard conduct. Optometry has been classified by the Legislature as a profession and as such subject to a degree of selfregulation. As is the case of most professions, a certain proportion, generally a majority group, in a sense do tell the other members of the profession "how to run their business." This is a necessary adjunct or burden of regulation which the Legislature has deemed necessary to prescribe in order to safeguard the public health and welfare. This contention does not reach the heart of the question involved which is: Does the Optometry Board possess authority to prescribe standards which may be applied, tentatively at least, to establish the issue of negligence in the practice of optometry? We believe that it does. A specific case of alleged negligent conduct is not before us but rather the problem of how the Optometry Board may proceed in determining an issue of alleged negligence when presented in a proper case. The regulatory body established by statute has set forth certain procedures which it deems important to a proper examination of the eyes preparatory to the manufacturing of lenses and the fitting of glasses. Some of these procedures may seem unnecessarily detailed, but it lies within the power of the regulatory body composed as it is of supposedly competent members of the profession, to prescribe the proper steps which should be followed in conducting an eye examination. There is a logical relationship between the adoption of standard procedures and the determination of the issue of negligence. We cannot say that the "basic competence rule" which at most sets up a rebuttable presumption is unreasonable nor that it is "inconsistent" with the optometry statute. Klein v. Department of Registration and Education, 412 Ill. 75, 105 N.E.2d 758; Reyburn v. Minnesota State Board of Optometry, 247 Minn. 520, 78 N.W.2d 351; Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929; Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330, 6 A.L.R.2d 664.

The third rule attacked — "the corporate practice rule" — has for its stated purpose among other things the safeguarding of the optometrist-patient relationship and the effective implementation of the Legislature's prohibition against placing an optometrist's license "in the service or at the disposal of unlicensed persons." Appellants assert that this rule is inconsistent with and contrary to the provisions of Article 4566-1, Vernon's Ann.Tex.Stats. which provides that, "* * it shall not be construed as a violation of this Act for any optometrist to lease space from an establishment on a percentage or gross receipts basis or to sell, transfer or assign accounts receivable."

As we construe the rule, it was adopted with the statutory provision above quoted in mind. The rule specifically states that "all credit accounts for patients shall be established with the optometrist and not the credit department of the mercantile establishment [from which he secures office space], provided however, nothing herein shall prevent the optometrist thereafter from selling, transferring or assigning any such account."

The rule does not say that an optometrist cannot lease office space from a business or mercantile "establishment", but seeks to control the relationships between the optometrist and his lessor to the extent that confusion on the part of the public will not arise and the optometrist-patient relationships will not be endangered. This end is sought to be accomplished by means of a presumption which an optometrist may rebut if despite his violation of the rule, he can show that he has not placed his license "at the disposal or in the service of any person not licensed to practice optometry." Cf. Rockett v. Texas State Board of Medical Examiners, Tex. Civ.App., 287 S.W.2d 190, wr. ref. n. r. e. See also Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; State ex rel. Fatser v. Zale Jewelry Co., 179 Kan. 628, 298 P.2d 283; Bennett v. Indiana State Board of, etc., Optometry, 211 Ind. 678, 7 N.E.2d 977; Neill v. Gimble Bros., 330 Pa. 213, 199 A. 178; McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139; Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419; State ex rel. Standard Optical Co. v. Superior Court, 17 Wn.2d 323, 135 P.2d 839; State ex rel. Sisemore v. Standard Optical Co. of Oregon, 182 Or. 452, 188 P.2d 309.

Appellants' briefs fail to disclose error and the judgment of the trial court declaring that "the (1) basic competence rule, (2) bait advertising rule, and (3) corporate practice rule * * * are constitutional and reasonable and not inconsistent with or contrary to the Optometry Act" is accordingly affirmed.