Can a Texas optometric glaucoma specialist use only that title, or must they also list 'optometrist'?

Plain-English summary

The 76th Texas Legislature created a new class of optometry licensee in House Bill 1051: the "optometric glaucoma specialist," a certified therapeutic optometrist allowed to treat glaucoma with certain pharmaceuticals. The statute creating the specialty said such a practitioner "shall be known as an optometric glaucoma specialist." The Texas Optometry Board asked the Attorney General whether a person holding that certification could use "optometric glaucoma specialist" as their sole professional title.

The opinion concluded they could not. A separate provision, section 104.003(f) of the Occupations Code, requires every Optometry Board licensee to designate themselves as one of four things: optometrist; doctor, optometrist; doctor of optometry; or O.D. The Board's lawyer argued the two statutes conflicted and asked the Attorney General either to read the new specialty title into the list, or to treat the newer, more specific statute as controlling. The opinion found no conflict at all. The new statute requires the specialist to be "known as" an optometric glaucoma specialist, but it is silent about whether the licensee may also use additional titles. Since a person can obey both statutes at the same time (use the specialist title and one of the four required designations), there is nothing to harmonize.

The opinion drew the rule from a 1990 opinion, JM-1279, which had addressed whether chiropractors could call themselves "chiropractic physician." That opinion read the licensing statute as setting minimum labeling requirements, not an exclusive list, so an added title was fine as long as the licensee still used one of the required designations. Applying the same logic, an optometric glaucoma specialist must use one of the four Occupations Code designations in addition to the specialist label, and may not style themselves exclusively as an optometric glaucoma specialist.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Optometry Act and the Occupations Code designation rules can change, so verify the current statute before relying on any specific title or section mentioned here.

What the opinion meant for those who asked

The Texas Optometry Board (what the opinion held for them): The opinion held that the new specialty statute and the Occupations Code designation rule do not conflict, so the Board did not need to read the specialty title into the four-item list or pick one statute over the other. Both apply.

Optometric glaucoma specialists (what the opinion held for them): The opinion held that they may not use "optometric glaucoma specialist" as their only title; they must also use one of the four designations section 104.003(f) requires (optometrist; doctor, optometrist; doctor of optometry; or O.D.).

Common questions

Can an optometric glaucoma specialist advertise using only that title?
Under this opinion, no. The specialist must also display one of the four designations the Occupations Code requires for every Optometry Board licensee.

Didn't the new law say the specialist 'shall be known as' an optometric glaucoma specialist?
Yes, but the opinion read that as a requirement to use the title, not a permission to use it exclusively. The statute is silent on whether the licensee may add other titles.

Why isn't there a conflict between the two statutes?
The opinion explained that a licensee can comply with both at once, by using the specialist label and one of the four required designations, so there is nothing for the Attorney General to harmonize.

What are the four required designations?
Section 104.003(f) lists them as optometrist; doctor, optometrist; doctor of optometry; and O.D.

Background and statutory framework

House Bill 1051 (76th Legislature, 1999) amended article 4552-1.03 of the Revised Civil Statutes, the Texas Optometry Act, to let certified therapeutic optometrists treat glaucoma under set conditions, adding subsection (r), which provides that "[a] therapeutic optometrist certified under this subsection shall be known as an optometric glaucoma specialist." Article 4552-1.03 was repealed and recodified in the Occupations Code in the same session; section 311.031(c) of the Government Code preserves an amendment made by the same legislature that enacted the code, so subsection (r) is given effect as part of the code (its text appears in a note following Occupations Code section 351.160). Tex. Rev. Civ. Stat. Ann. art. 4552-1.03; Tex. Gov't Code Ann. § 311.031(c) (Vernon 1998).

Section 104.003(f) of the Occupations Code requires every Optometry Board licensee to designate themselves as (1) optometrist; (2) doctor, optometrist; (3) doctor of optometry; or (4) O.D. Tex. Occ. Code Ann. § 104.003(f) (Vernon 2001). The opinion applied Attorney General Opinion JM-1279 (1990), which construed the predecessor statute as setting minimum labeling requirements rather than an exclusive list of permitted titles, allowing an additional designation so long as one of the required terms is also used.

Citations

Statutory provisions:

• Tex. Occ. Code Ann. § 104.003(f) (Vernon 2001)
• Tex. Rev. Civ. Stat. Ann. art. 4552-1.03 (Texas Optometry Act), subsection (r)
• Tex. Gov't Code Ann. § 311.031(c) (Vernon 1998)
• Tex. H.B. 1051, 76th Leg., R.S. (1999)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JM-1279 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0381
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0381.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

May 23, 2001

Ms. Lois Ewald
Executive Director
Texas Optometry Board
333 Guadalupe Street, Suite 2-420
Austin, Texas 78701-3942

Opinion No. JC-0381

Re: Whether an "optometric glaucoma specialist" may use that designation as his sole professional title (RQ-0329-JC)

Dear Ms. Ewald:

You ask whether optometric glaucoma specialists, a new class of licensees of the Texas Optometry Board (the "Board") created by the Seventy-sixth Legislature in House Bill 1051, may use the phrase "optometric glaucoma specialist" as an exclusive professional designation. We conclude, in light of section 104.003(f) of the Occupations Code, that they may not use that designation exclusively.

House Bill 1051 amended article 4552-1.03 of the Revised Civil Statutes, the Texas Optometry Act, to permit certified therapeutic optometrists "to treat certain diseases and conditions with specific classes of pharmaceuticals and [the bill] sets forth conditions under and protocol for which a therapeutic optometrist may treat glaucoma." HOUSE COMM. ON PUBLIC HEALTH, BILL ANALYSIS, Tex. H.B. 1051, 76th Leg., R.S. (1999). It amends article 4552-1.03 by adding, inter alia, subsection (r), which provides in relevant part that "A therapeutic optometrist certified under this subsection shall be known as an optometric glaucoma specialist."

Section 104.003(f) of the Occupations Code requires that all licensees of the Texas Optometry Board designate themselves as:

(1) optometrist;

(2) doctor, optometrist;

(3) doctor of optometry; or

(4) O.D.

TEX. OCC. CODE ANN. § 104.003(f) (Vernon 2001).

A brief submitted by the Board suggests that subsection (r) and section 104.003(f) are in conflict, and that therefore this office must either harmonize them by construing subsection (r) as implicitly adding another designation to the list in section 104.003(f), or conclude, if we find the statutes irreconcilable, that subsection (r) controls as both more specific and later in time than section 104.003(f). In our view, however, following the argument of Attorney General Opinion JM-1279, there is no conflict between the two statutes. A licensee of the Optometry Board can without difficulty conform his or her behavior to the mandate of both statutes. Such a licensee accordingly remains bound by section 104.003(f), and cannot use "optometric glaucoma specialist" exclusively as a professional designation.

In Attorney General Opinion JM-1279, the question presented was whether by rule the Board of Chiropractic Examiners might permit chiropractors to use the title "chiropractic physician." In determining that such a rule was permissible so long as the phrase was employed in addition to one of the terms or phrases required by the statutory predecessor of section 104.003 of the Occupations Code, this office opined:

We do not construe article 4590e, [Revised Civil Statutes], 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 [it] 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.

Tex. Att'y Gen. Op. No. JM-1279 (1990) at 4-5.

Similarly, nothing in the language of subsection (r) requires an optometric glaucoma specialist to be known only, solely, or exclusively as an "optometric glaucoma specialist." The statute requires that such a practitioner "shall be known as an optometric glaucoma specialist," but, in the words of Attorney General Opinion JM-1279, "is silent with regard to whether such a licensee may employ any additional designation." Id. at 5.

Accordingly, nothing in law or logic prevents a licensee from obeying both of these independent statutory mandates, and there is no conflict for this office to harmonize. That being the case, an optometric glaucoma specialist may not violate the directive of section 104.003(f) of the Occupations Code by exclusively so styling him- or herself as such, but must in addition use one of the four designations that statute requires.

(Footnote: In a nonsubstantive revision, article 4552-1.03 of the Revised Civil Statutes was repealed and recodified in the Occupations Code. In the same session, subsection (r) was added to article 4552-1.03 by the Seventy-sixth Legislature. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex. Gen. Laws 1431, 2440, repealing article 4552-1.03; see also Act of May 20, 1999, 76th Leg., R.S., ch. 733, § 2, 1999 Tex. Gen. Laws 3342, 3344, adding subsection (r). Section 311.031(c) of the Government Code provides, in part, that the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code and that the amendment is preserved and given effect as part of the code provision. TEX. GOV'T CODE ANN. § 311.031(c) (Vernon 1998). For text of subsection (r), see note following section 351.160 of the Occupations Code.)

(Footnote: Brief from Chris Kloeris, Legal Counsel, Texas Optometry Board, to Ms. Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General, at 1-2 (Jan. 9, 2001) (on file with Opinion Committee).)

SUMMARY

An optometric glaucoma specialist may not use the phrase "optometric glaucoma specialist" exclusively as a professional designation.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee