What eye procedures can a Texas therapeutic optometrist perform?

Plain-English summary

A therapeutic optometrist is an eye doctor licensed under the Texas Optometry Act who can do more than fit glasses (diagnose eye conditions, prescribe drugs, treat the eye and its surrounding tissue) but who is barred from performing surgery. The acting commissioner of the Texas Department of Health sent the Attorney General a list of eleven eye procedures the Optometry Board had approved (removing foreign bodies from the eye, scraping the cornea for a culture, closing or dilating tear-duct openings, probing the tear-drainage system, and so on) and asked the underlying question: are these procedures "surgery," and therefore off-limits to a therapeutic optometrist?

The dispute came down to which definition of "surgery" governs. The state ophthalmologists' group argued the procedures were surgery under the broad definition in the Medical Practice Act, which sweeps in anything listed in the surgery section of the federal procedure-coding system (and all eleven procedures are listed there). The Attorney General rejected that approach. The Medical Practice Act says its definitions apply only to that act, and a separate rule of interpretation lets one statute borrow a definition from another only if the borrowing statute came later. Here the order was backwards: the Optometry Act banned surgery in 1991, and the Medical Practice Act did not define "surgery" until 1993, so the Optometry Act cannot borrow the later definition.

Without a statutory definition to import, the office gave "surgery" its ordinary meaning. The Texas Supreme Court has said that where a statute does not define the word, "surgery" means "only cutting operations." So, for the Optometry Act, a therapeutic optometrist may not perform a procedure that involves cutting, but may perform the listed procedures that do not. Whether any particular procedure on the list involves cutting is a question of fact the office would not resolve. The Optometry Board has authority to make that call, subject to review by the courts.

Currency note

This opinion was issued in 1996. 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.

This opinion interprets the Texas Optometry Act and the Medical Practice Act as they existed in 1996, when both were codified in the Revised Civil Statutes (the "V.T.C.S." article numbers). Both acts have since been recodified into the Texas Occupations Code, and the scope of optometric practice has been the subject of later legislation. Treat the article and section numbers here as historical; verify current law before relying on anything here.

What the opinion meant at the time

Therapeutic optometrists: Under the opinion, the surgery these optometrists were forbidden to perform meant cutting operations only. They could perform the listed eye procedures so long as a given procedure did not involve cutting.

The Texas Optometry Board: The opinion recognized the board's authority to determine whether a particular procedure is surgery (a cutting operation), while noting that the board's determination was subject to judicial review.

Ophthalmologists and the medical community: The opinion rejected the argument that the Medical Practice Act's broad surgery definition controlled the scope of optometric practice, and noted that an optometrist who confines his or her practice to optometry is outside the reach of the Medical Practice Act.

Common questions

What does "surgery" mean for a Texas therapeutic optometrist?
Only cutting operations. Under the opinion, a procedure that does not involve cutting is not "surgery" the Optometry Act forbids.

Could a therapeutic optometrist perform the eleven listed procedures?
Yes, unless a particular procedure involves cutting. The opinion said whether each procedure involves cutting is a question of fact.

Why didn't the Medical Practice Act's broad surgery definition apply?
Because that definition was added in 1993, after the Optometry Act's 1991 surgery ban, and the opinion applied the rule that a statutory definition can be imported only into a later-enacted statute.

Who decides whether a given procedure is "surgery"?
The opinion said the Texas Optometry Board has that authority, but its determination is subject to judicial review.

Background and statutory framework

The Texas Optometry Act (V.T.C.S. articles 4552-1.01 through 4552-7.02) defines the practice of therapeutic optometry to include measuring vision, diagnosing eye conditions, prescribing lenses and drugs, and treating the eye and adnexa (the lids and tear-drainage system), but it forbids a therapeutic optometrist to use surgery or laser surgery (article 4552-1.02(7)). The act does separately allow removing superficial foreign matter and eyelashes from the external eye or adnexa (article 4552-1.03(b)). It does not define "surgery."

The ophthalmologists' association argued the listed procedures were surgery under the Medical Practice Act, which defines surgery to include any procedure in the surgery section of the federal Common Procedure Coding System (the AMA's Current Procedural Terminology, adopted by the Health Care Financing Administration). The Attorney General gave two reasons that definition did not govern. First, section 1.03(a) of the Medical Practice Act limits its definitions to that act. Second, the Optometry Act's surgery ban came first (1991), and the Medical Practice Act's surgery definition came later (1993); under the canon that a definition may be imported only into a later-enacted statute (Brookshire v. Houston Indep. Sch. Dist., citing Brown v. Darden), the earlier Optometry Act could not borrow the later definition. The office also noted the Medical Practice Act does not apply to an optometrist who confines his or her practice to optometry (section 3.06(b)(2)).

Left to the ordinary meaning of the word (Gov't Code section 312.002(a)), the office relied on Truck Ins. Exch. v. Seelbach, where the Texas Supreme Court said "surgery" embraces "only cutting operations" when a statute does not define it otherwise. The result: for the Optometry Act, "surgery" means cutting operations, and whether any of the eleven procedures involves cutting is a fact question for the Optometry Board, subject to judicial review.

Citations

Statutes and session law:

• Texas Optometry Act, V.T.C.S. arts. 4552-1.01 through 4552-7.02 (scope of therapeutic optometry)
• V.T.C.S. art. 4552-1.02(7) (surgery and laser surgery prohibited); art. 4552-1.02(8) (definition of adnexa); art. 4552-1.03(b) (removal of superficial foreign matter)
• Medical Practice Act, V.T.C.S. art. 4495b; § 1.03(a)(15) (definition of surgery); § 3.06(b)(2) (optometrist exemption)
• Gov't Code § 312.002(a) (words given their ordinary meaning)
• Act of May 21, 1991, 72d Leg., R.S., ch. 588, § 1, 1991 Tex. Gen. Laws 2106, 2108 (surgery excluded from therapeutic optometry)
• Act of May 30, 1993, 73d Leg., R.S., ch. 862, § 1, 1993 Tex. Gen. Laws 3374, 3375 (surgery defined in the Medical Practice Act)

Cases:

• Truck Ins. Exch. v. Seelbach, 339 S.W.2d 521 (Tex. 1960)
• Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ)
• Brown v. Darden, 50 S.W.2d 261 (Tex. 1932)

Also cited: Attorney General Opinions DM-98 (1992), H-56 (1973), M-187 (1968), and O-2911 (1940).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0425
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0425.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

DAN MORALES
ATTORNEY GENERAL

November 22, 1996

Patti J. Patterson, M.D., M.P.H.
Acting Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. DM-425

Re: Whether a therapeutic optometrist may perform certain procedures (RQ-884)

Dear Dr. Patterson:

The Texas Optometry Act expressly forbids a therapeutic optometrist to perform surgery. The Texas Supreme Court has defined surgery to encompass only cutting operations, where the term was not defined otherwise by statute. You provide a list of eleven procedures and ask, in effect, if they constitute surgery and are therefore forbidden to a therapeutic optometrist. We conclude that a therapeutic optometrist may perform the listed procedures unless they involve cutting.

For purposes of the Texas Optometry Act,[1] the practice of therapeutic optometry involves using "objective or subjective means" to ascertain and measure the human eye's power of vision;[2] to examine and diagnose visual defects, abnormal conditions, and diseases of the human eye and adnexa; to prescribe or fix lenses or prisms[3] to correct or remedy a defect or abnormal condition of vision; to administer or prescribe a drug or physical treatment in accordance with the act; and to treat the eye and adnexa in accordance with the act.[4] The "adnexa," a term used in delimiting the scope of the practice of therapeutic optometry, means the lids and draining system of the eye.[5] Significantly, a therapeutic optometrist may not use surgery or laser surgery.[6] On the other hand, a therapeutic optometrist "may remove superficial foreign matter and eyelashes from the external eye or adnexa"[7] (so long as the removal does not involve surgery).

You list eleven procedures that you indicate the Texas Optometry Board has approved for a therapeutic optometrist to perform:

 Removal of foreign body, external eye; conjunctival embedded (includes concretions), subconjunctival, or scleral nonperforating
 Removal of foreign body, external, corneal, without slit lamp
 Removal of foreign body, external eye; corneal, with slit lamp
 Repair of laceration, application of tissue glue, wounds of cornea and/or sclera
 Scraping of cornea, diagnostic, for smear and/or culture
 Removal of embedded foreign body, eyelid
 Closure of lacrimal punctum; by thermocauterization [or] ligation
 Closure of the lacrimal punctum; by plug, each
 Dilation of lacrimal punctum, with or without irrigation, unilateral or bilateral
 Probing of nasolacrimal duct, with or without irrigation, unilateral or bilateral
 Probing of lacrimal calculi, with or without irrigation[8]

You suggest that the Texas Ophthalmologist Association believes each of these procedures is forbidden to therapeutic optometrists. The Ophthalmologist Association apparently contends that each procedure is within the "practice of medicine" and "surgery" for purposes of the Medical Practice Act.[9] But that act does not apply to a licensed optometrist who confines his or her practice strictly to optometry as defined under the Texas Optometry Act.[10] Thus, so long as a therapeutic optometrist performs only therapeutic optometry, as the Texas Optometry Act circumscribes that practice, he or she is beyond the reach of the Medical Practice Act.

Accordingly, the issue we must determine is whether the procedures you have listed are surgery, and therefore outside the scope of therapeutic optometry. While the Optometry Act does not define the term "surgery," the Medical Practice Act defines "surgery" to include any procedure "described in the surgery section of the Common Procedure Coding System as adopted by the Health Care Financing Administration of the United States Department of Health and Human Services."[11] All of the procedures you list are described in the surgery section of the Physicians' Current Procedural Terminology '96,[12] which the Health Care Financing Administration has adopted as the Common Procedure Coding System.[13] Thus, if the Medical Practice Act's definition of "surgery" applies to the Texas Optometry Act, we must conclude that all of the procedures about which you ask are surgery and that a therapeutic optometrist may not perform them.

In our opinion, however, the Medical Practice Act's definition of "surgery" does not apply to the Texas Optometry Act. Initially, section 1.03 of the Medical Practice Act limits the applicability of the definitions provided in that section, which includes the definition of "surgery," only to the Medical Practice Act.[14] Moreover, when the legislature excluded surgery from the practice of therapeutic optometry in 1991,[15] the Medical Practice Act did not define the term. Rather, the legislature added the definition of "surgery" to the Medical Practice Act in 1993.[16] We may import a statutory definition into only a later-enacted statute;[17] here, where the Optometry Act was enacted prior to the Medical Practice Act's definition of "surgery," we may not import the definition.

Instead, we must define the term "surgery" to comport with its ordinary meaning.[18] The Texas Supreme Court has indicated that the word "surgery" embraces "only cutting operations,"[19] where the statute at issue has not defined the word otherwise. Accordingly, we conclude that, for purposes of the Texas Optometry Act, the term "surgery" refers only to cutting operations. Whether the procedures you have listed involve cutting is a question of fact that cannot be answered in the opinion process.[20] To the extent that the procedures involve cutting and therefore constitute surgery, a therapeutic optometrist may not perform them. The Optometry Board has the authority to determine whether the procedures constitute surgery, but the board's determination is subject to judicial review.

                           SUMMARY

      For purposes of the Texas Optometry Act, V.T.C.S. articles 4552-1.01 through 4552-7.02, the term "surgery" refers only to cutting operations. Whether a particular procedure is a cutting operation, which a therapeutic optometrist is forbidden to perform, is a question of fact.

                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[Footnotes]

[1] V.T.C.S. arts. 4552-1.01 - 7.02.
[2] See id. art. 4552-1.02(2) (defining "ascertaining and measuring powers of vision of the human eye").
[3] See id. art. 4552-1.02(3) (defining "fixing lenses or prisms").
[4] Id. art. 4552-1.02(7).
[5] Id. art. 4552-1.02(8); see also Stedman's Medical Dictionary 26 (5th unabr. lawyers' ed. 1982) (defining "adnexa" generally as "appendages; parts accessory to main organ or structure" and "adnexa oculi" as "the eyelids, lacrimal glands, etc., associated with the eyeball").
[6] V.T.C.S. art. 4552-1.02(7).
[7] Id. art. 4552-1.03(b).
[8] We understand that you have taken your descriptions from the American Medical Association's Physicians' Current Procedural Terminology (1995).
[9] V.T.C.S. art. 4495b.
[10] Id. art. 4495b, § 3.06(b)(2).
[11] Id. § 1.03(a)(15).
[12] See American Medical Ass'n, Physicians' Current Procedural Terminology '96, at 231-32, 240, 242 (1995).
[13] The Health Care Financing Administration's Common Procedure Coding System ("HCPCS") has three levels of codes. Gary M. Knaus, CPT & HCPCS Coding for Optimal Reimbursement 4 (1987). The first level, which classifies physician procedures and services, see id. at 7, is the American Medical Association's Current Procedural Terminology ("CPT"). Id. at 4. The second and third levels classify supplies, services, and procedures, id.; they are not at issue here.
[14] See V.T.C.S. art. 4495b, § 1.03(a).
[15] See Act of May 21, 1991, 72d Leg., R.S., ch. 588, § 1, 1991 Tex. Gen. Laws 2106, 2108.
[16] See Act of May 30, 1993, 73d Leg., R.S., ch. 862, § 1, 1993 Tex. Gen. Laws 3374, 3375. Indeed, the legislative history of the amendment adding the definition of "surgery" indicates that the amendment was directed particularly at physicians. See Debate on S.B. 1062 on the Floor of the House, 73d Leg., R.S. (May 17, 1993) (testimony of Rep. Alexander) (tape available from House Video/Audio Services Office).
[17] See Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 677-78 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ) (citing Brown v. Darden, 50 S.W.2d 261 (Tex. 1932)).
[18] See Gov't Code § 312.002(a).
[19] Truck Ins. Exch. v. Seelbach, 339 S.W.2d 521, 526 (Tex. 1960); cf. XVII The Oxford English Dictionary 293-94 (1989).
[20] See, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3, O-2911 (1940) at 2.