Could Texas health officials regulate a self-employed massage instructor as a massage school and require registration details in every advertisement?

Texas AG Opinion JM-609: Massage Instructor Rules

Plain-English summary

JM-609 concluded that the Texas Department of Health could not require a self-employed massage instructor who taught more than two apprentices to satisfy the department's massage-school requirements. The statute expressly allowed registration based on instruction from an instructor, a recognized school, or a combination, so the proposed rule would have eliminated an option the Legislature provided. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

The department also lacked authority to require every massage establishment to put its certificate name and every therapist's registration number in every form of advertising. The opinion said the department could reasonably regulate advertising, but the proposed blanket requirement could be unreasonable and was not expressly authorized. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

The opinion did not decide specific advertising examples because no proposed rule or list of advertising types had been submitted. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Currency note

This opinion was issued in 1986. 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.

Who this opinion affected in 1986

Self-employed massage instructors: JM-609 preserved the statutory option to teach apprentices outside a recognized massage school and rejected the proposed more-than-two-apprentices trigger. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Massage establishments: The opinion rejected a rule requiring the same registration details in all forms of advertising, while recognizing reasonable advertising regulation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Health department rulemakers: JM-609 required agency rules to remain reasonable and within the authority granted by article 4512k. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Common questions

Did teaching more than two apprentices make an instructor a massage school?

No. The opinion found no statutory basis for that rule and said it conflicted with the independent-instructor option. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Could the department regulate massage advertising at all?

Yes. JM-609 said section 5 implied authority to regulate advertising reasonably to prevent consumer deception. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Could every advertisement be required to list every therapist's state number?

Not under the blanket rule described. The opinion said the statute did not expressly require those details in all advertising and the proposed requirement might be unreasonable. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Did the AG approve or reject particular advertising formats?

No. The request did not include a proposed rule or specify the forms of advertising, so the opinion did not reach examples. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Background and statutory framework

Article 4512k defined massage therapists and establishments, set registration requirements, and allowed instruction through instructors, schools, or combinations of both. The department's school rule established administrative, curriculum, recordkeeping, and facility standards for recognized schools. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

JM-609 reasoned that an agency could adopt necessary rules consistent with the statute but could not foreclose a route the statute expressly left open. It applied the same limits to the proposed advertising rule. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Key source language

JM-609 stated:

"A rule requiring the self-employed instructor who is teaching more than two apprentices to comply with the department's requirements for a massage therapy school would foreclose an option explicitly provided by the legislature."

"The department is not authorized under sections 5 and 7(a) of article 4512k, V.T.C.S., to promulgate a rule requiring each massage establishment to include in all forms of advertising, the name as it appears on the registration certificate, and the state registration number of each massage therapist practicing in the establishment, but it is empowered to reasonably regulate advertising."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Citations and references

• V.T.C.S. article 4512k, including sections 2(b)(1), 5, and 7(a)
• 25 T.A.C. section 141.9

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0609
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0609.pdf

Original opinion text

December 30, 1986

Robert Bernstein, M.D.
Commissioner
Texas Department of Realth
1100 West 49th Street
78756
Austin, Texas

Opinion No. JM-609
Re: Whether a self-employed massage
therapy instructor who supervises
more than two apprentices conducts a
massage therapy school for purposes
of article 4512k. V.T.C.S., and
related questions

Dear Dr. Bernstein:
You have asked two questions concerning the T&as Department of Health's authority to regulate massage therapists. You first ask whether article 4512k. V.T.C.S., authorizes the Texas Department of Flealth to enact a rule requiring a massage therapy instructor, who is self-employed and supervises more than two apprentices-.to comply with the department's requirements for a massage therapy school. Those requirements are: 5141.9 MASSAGE TRERAPY SCHOOLS RECOGNIZED BY THE DEPARTMENT. (a) Purpose. This section sets forth the guidelines by which a massage therapy school may be recognized by the department. (b) General. After January 1. 1986. the department shall recognize only those establishments or organizations which meet the following criteria as a massage therapy school: (1) Minimum standards for operation. (A) Each school shall designate one parson as the director of the school who is the responsible for school program and curriculum, the organization of classes, the maintenance of the school facilities, the maintenance of proper administrative records, and all other procedures related to the administration of the school.

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(34-609)

(B). All instructors of Swedish massage
therapy technique in a recognized massage
therapy school shall meet the definition of a massage therapy instructor as defined in $141.2 of this title (relating to Definitions). recognized massage therapy ('3 A school shall have written admission requirements, tuition and fee schedules, a refund POliCY * a student conduct policy, conditions for dismissal and re-entrance, attendance requirements, curriculum and course requirements which shall be made available to every apprentice/student and prospective apprentice/student before registration. (D) Each recognized massage therapy school shall keep on file and available for inspection by the department the following: (0 students;

applications of apprentices1

(ii) attendance records;
(iii) log
hours; and

of

(iv) academic
relate to grades.

apprentice/student

records

which

therapy
recognized
massage
03
A
school shall offer as a minimum the curriculum requirements as set forth in 5141.5 of this title (relating to Registration Requirements). 25 T.A.C. 1141.9 (1986). Article 4512k. V.T.C.S., provides in part: Sec. 1.
.

.

.

In this Act:

.

'Massage therapist' means an individual
(2)
who practices or administers massage therapy to a patron of either gender for compensation. The term includes a therapeutic massage practitioner, maesaginist. massage technician, masseur. mas*ewe, myo-therapist. or any derivation of those titles.

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(J-M-609)

. . . .
(4) ‘Massage establishment’ means any place of business in which massage therapy is practiced by a massage therapist. Registration Requirements Sec.2

(a)

. . . .

(b) An individual who registers under this Act must present evidence satisfactory to the board that the person: satisfactorilv comuleted massase (1) has therapy studies in a 250 hour, supervised course of instruction provided by a massage therapy instructor, by a massage therapy school recognized by the department, by a state approved educational institution, or by any combination of instructors or schools, in which 125 hours are dedicated to the study of Swedish massage therapy techniques, 50 hours to the study of anatomy, 25 hours to the study of physiology, 25 hours to the study of hydrotherapy, five hours to the study of business practices and professional ethics standards, and 20 hours to the study of health and hygiene; (2) is registered as a massage therapist in another state or country that has and maintains standards and requirements of practice and licensing or registration that substantially conform to those of this state, as determined by the department; or (3) has practiced massage therapy as a profession for not less than five years in another state or country that does not have or maintain standards and requirements of practice and licensing or registration that substantially conform to those of this state, as determined by the department. (Emphasis added). It is clear that sections l(2) and 2(b)(l) do not specifically require a massage therapy instructor to conply with the department’s requirements for a massage therapy school, but the legislature has provided that the department, through the Board of Health, may adopt rules consistent with article 4512k which are necessary for the performance of its duties under the statute. V.T.C.S. art. 4512k, 67(a).

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(.I&609)

A

rule promulgated by the department must be reasonable and within the ambit of the statutory requirements. See, e.g.. Gerst v. Oak Cliff Savings & Loan Association, 432 S.W.2d 702 (Tex. 1968); State Board of Insurance v. Deffebach, 631 S.W.2d 794. 798 (Tex. Civ. APP . - Austin 1982, writ ref’d c.r.e.). Section Z(b)(l) of article 4512k authorizes the department to “recognize” massage therapy schools. The board has adopted regulations setting forth guldelines by which these schools may be recognized (registered) by the department. See 25 T.A.C. $141.9. These regulations, which became effective beginning January 1, 1986, set minimum standards for the Id. But these administration and operation of these schools. regulations do uot make provisions governing self-exoyod massage therapy instructors who teach two or more apprentices. Section l(3) of article 4512k specifies that-one of the requirements of becoming a massage therapy instructor is to instruct one or more apprentices in massage therapy. The statute does not specify whether the instructor must teach at a school or an establishment. it is reasonable to assume that a self-employed massage therapist may teach one or more apprentices. A rule requiring the self-employed instructor who is teaching more than two apprentices to comply with the department’s requirements for a massage therapy school would foreclose au option explicitly provided by the legislature. V.T.C.S. art. 4512k. 12(b)(1). Section 2(b)(l) provides that a person seeking registration by the board may receive all his instruction through a school recognized by the department or by a “combination of instructors or schools.” Id. Accordingly. we conclude that such a rule promulgated by the department would be inconsistent with its statutory authority. See, e.g., Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no writ). You also ask whether the department may promulgate a rule requiring each massage establishment to include on all forms of advertising the uame of the establishment as it appears ou the registration certificate, aud the state registration number of each massage therapist practicing in the establishment. The legislature has enacted section 5 of article 4512k. V.T.C.S., which provides: (a) Each massage establishment nust Sec. 5. post in plain sight the certificate of registration of each massage therapist who practices in the massage establishment. (b) A person who is not registered under this Act may not use the word ‘massage’ on any m or other form of advertising. (Emphasis added). The United States Supreme Court has held that statutes and regulations requiring mandatory disclosure of certain facts must be reasonably related to the state’s interest in preventing deception oi consumers. Zauderer V. Office of Disciplinary Counsel of the Suprrae

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(JM-609)

Court of Ohio, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). A statute or regulation which imposes unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilliog protected commercial speech. Id. We believe that section 5 is rationally related to the legislative purpose of preventing the deception of consumers seeking this type of service. See Bill Analysis to B.B. No. 2012, prepared for Eouse Committee on Business and Commerce. filed in Bill File to E.B. No. 2012. Legislative Reference Library. Section 5 does not explicitly provide that this information be placed in all forms of advertising about a massage establishment. We believe that the legislature intended, by enacting section 5, to grant the department implicit authority to regulate the advertising of massage establishments. A rule, however, requiring that each massage establishment include in all forms of advertising. the came as it appesrs on the registration certificatr. and the state registration number of each massage therapist practicing in the establishment may be unreasonable. See Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, m; cf. State Board of Insurance v. Deffebach, 631 S.W.2d 794 (Tex. Civ. App. - Austin 1982, writ ref'd n.r.e.) (regulation must be reasonable and within the statutory authority). You have not submitted any proposed rule or specified the kinds of advertising you have in mind, and as a result, we do not reach specific examples. SUMMARY The Texas Department of Realth is not authorized under article 4512k. V.T.C.S.. to promulgate a rule requiring a massage therapy instructor, who is selfemployed and teaches more than two apprentices, to
;z;;
with its requirements for a massage therapy
.
The department is not authorized under sections 5 and 7(a) of article 4512k. V.T.C.S., to promulgate a rule requiring each massage establishment to include in all forms of advertising, the name as it appears on the registration certificate, and the state registration number of each massage therapist practicing in the establishment, but it is empowered to reasonably regulate advertising. Very truly your

Ll

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/ikit&
JIM&TO,
Attorney General of Texas

Dr. Robert Bernstein - Page 6

(34-609)

JACK HIGETOWER
First Assistant Attorney General
MARY KBLLER
Executive Assistant Attorney

General

RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorr.eyGeneral

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