Can the Texas Optometry Board still regulate an optometrist who works under a physician's direction?

Plain-English summary

The Texas Optometry Act, in chapter 351 of the Occupations Code, regulates optometrists and, among other things, bars retailers of ophthalmic goods (the businesses that sell glasses, frames, and contact lenses) from controlling the practice of optometry. But the Act also has a carve-out, section 351.005(a)(2). It says chapter 351 does not prevent or interfere with a Texas-licensed physician's right to treat or prescribe for a patient, or to direct a person under the physician's control to aid or attend to a patient according to the physician's specific direction, instruction, or prescription. The Optometry Board's executive director described an arrangement where a physician leases space from an ophthalmic retailer, the retailer shares employees and provides business services to the optometric office, and the physician employs optometrists to do exams and write prescriptions. He asked whether that carve-out stops the Board from going after the retailer or disciplining the optometrists.

The AG drew a line. He explained that the carve-out is not a categorical exemption from the Act. By its words it limits the Board only as to specific physician rights, and the protection for directing another person turns on the nature of what that person does: it applies when the optometrist acts to aid or attend to a patient as specifically directed by the physician, not merely because the optometrist is the physician's employee. Reading the provision as a blanket exemption would let a whole subset of optometrists avoid the Act's licensing, independence, and continuing-education requirements, and courts do not lightly presume the Legislature meant to make key parts of a statute useless. So a court would likely treat section 351.005(a)(2)(B) as a narrow shield for patient-care acts done at the physician's specific direction, not as a way to remove the retailer and the employed optometrist from the Act entirely.

The AG was careful about what he would not decide. Whether a particular retailer is subject to an injunction or civil penalty under section 351.408, or a particular optometrist is subject to discipline under section 351.501, depends on the facts, and the AG said those fact questions are outside the purview of an attorney general opinion. He answered only the underlying legal question about how to construe the shield.

Currency note

This opinion was issued in 2020. 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.

What the opinion meant for those who asked

For the Texas Optometry Board, the opinion's reading at the time preserved most of its regulatory reach over optometrists who work for a physician inside a retailer-adjacent arrangement. The section 351.005(a)(2)(B) shield protected the physician's right to give specific patient-care direction, but the AG read it not to strip the Board of authority over the optometrist or the retailer across the rest of the Act. For ophthalmic retailers and physician-led practices using these lease-and-shared-staff arrangements, the opinion signaled that the carve-out would not function as a structural workaround for the Act's anti-control and independence provisions. The AG declined to say whether the specific arrangement the Board described would actually support an injunction, a civil penalty, or discipline, holding those out as fact questions for the Board and the courts; the page should not be read as predicting an outcome in any particular case.

Common questions

Q: Does working for a physician exempt an optometrist from the Texas Optometry Act?
A: No, not as a blanket matter. The AG concluded section 351.005(a)(2)(B) shields specific patient-care acts done at the physician's direction, but it does not pull an employed optometrist out of the Act entirely just because of the employment relationship.

Q: What does the section 351.005 carve-out actually protect?
A: A physician's right to treat or prescribe, and to direct a person under the physician's control to aid or attend to a patient according to the physician's specific direction, instruction, or prescription. The AG stressed the direction has to be specific and tied to patient care.

Q: Can the Optometry Board still pursue a retailer or discipline the optometrist in this setup?
A: Whether the facts support an injunction or civil penalty against a retailer, or discipline against an optometrist, is a fact question. The AG said that is outside the purview of an attorney general opinion and did not decide it.

Q: Can a physician legally practice optometry in Texas?
A: Yes. The AG noted it is well established that a licensed physician may practice optometry, citing Baker v. State.

Background and statutory framework

Chapter 351 of the Occupations Code (sections 351.001-.608) is the Texas Optometry Act. It defines and authorizes the practice of optometry (section 351.002), protects an optometrist's professional independence (sections 351.458-.460), bars manufacturers, wholesalers, and retailers of ophthalmic goods from controlling optometry (section 351.408), imposes continuing-education and practice requirements (sections 351.308, 351.451-.460), and authorizes the Board to discipline optometrists for listed conduct (section 351.501). Section 351.005(a)(2) carves out a physician's right to treat or prescribe (subsection (A)) and to direct a person under the physician's control to aid or attend to a patient per the physician's specific direction (subsection (B)). The AG applied the intent-from-text approach of TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) and Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004), read the statute as a whole per Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318 (Tex. 2017), defined "specific" using KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.-Houston [1st Dist.] 2013, pet. denied), and invoked the presumption against rendering statutes useless from Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). It cited the longstanding rule that a physician may practice optometry from Baker v. State, 240 S.W. 924 (Tex. Crim. App. 1921), and prior opinions DM-170 (1992), KP-0205 (2018), MW-275 (1980), and H-395 (1974).

Citations and references

Statutory provisions:

• Tex. Occ. Code § 351.005; § 351.408; § 351.501

Cases:

• Baker v. State, 240 S.W. 924 (Tex. Crim. App. 1921)
• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011)
• Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004)
• KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.-Houston [1st Dist.] 2013, pet. denied)
• Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318 (Tex. 2017)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010)

Prior AG opinions referenced: DM-170 (1992); MW-275 (1980); H-395 (1974); KP-0205 (2018).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0297
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0297.pdf

Original opinion text

March 30, 2020

Mr. Chris Kloeris
Executive Director
Texas Optometry Board
333 Guadalupe Street, Suite 2-420
Austin, Texas 78701-3942

Opinion No. KP-0297

Re: Authority of Optometry Board under section 351.005 of the Occupations Code over activities of licensed optometrists employed by physicians and retailers of ophthalmic goods leasing space to physicians (RQ-0311-KP)

Dear Mr. Kloeris:

You ask about the Texas Optometry Board's ("Board") authority pursuant to Occupations Code section 351.005 over activities of licensed optometrists employed by physicians and retailers of ophthalmic goods[1] leasing space to physicians.[2] Section 351.005 provides that chapter 351 does not

prevent or interfere with the right of a physician licensed by the Texas Medical Board to:
(A) treat or prescribe for a patient; or
(B) direct or instruct a person under the physician's control, supervision, or direction to aid or attend to the needs of a patient according to the physician's specific direction, instruction, or prescription.

TEX. OCC. CODE § 351.005(a)(2). You describe circumstances wherein a physician who is licensed by the Texas Medical Board leases space from a retailer of ophthalmic goods and hires an optometrist to conduct examinations, treat conditions and diseases of the eye, and issue prescriptions for medications and ophthalmic goods. See Request Letter at 1-2. You also state that under the lease arrangement, the retailer provides business services to and shares employees with the physician and "the office where optometry is practiced." Id. at 2. In this context, you ask whether subsection 351.005(a)(2)(B) prevents the Board from seeking an injunction and a civil penalty against a "retailer of ophthalmic goods providing business services and sharing employees with an optometric office staffed by optometrists employed by a physician where the physician leases space from the unlicensed retailer." Id. You also ask whether the same subsection prevents the Board from taking disciplinary action against "licensed optometrists employed by a physician where the physician leases space from an unlicensed retailer of ophthalmic goods and the unlicensed retailer provides business services and shares employees with the office in which the optometrists practice." Id.

The Texas Optometry Act (the "Act"), in Occupations Code chapter 351, governs the practice of optometry. See generally TEX. OCC. CODE §§ 351.001-.608. An optometrist[3] is one licensed under chapter 351 and "authorized to practice optometry." Id. § 351.002(4); see also id. § 351.002(6) (defining the practice of optometry). Chapter 351 contains specific provisions regarding an optometrist's independence. See, e.g., id. §§ 351.458 (regarding the use of name or professional identification), .459 (regarding the optometrist's leasing of space from a mercantile establishment), .460 (regarding the optometrist's relationship with dispensing opticians). The Act prohibits the control of optometry by manufacturers, wholesalers, and retailers of ophthalmic goods. Id. § 351.408. The Act also authorizes the Board to discipline an optometrist for certain activities. Id. § 351.501 (listing seventeen actions for which the Board may discipline an optometrist).

It is well established in Texas that a licensed physician may practice optometry. See Baker v. State, 240 S.W. 924, 928-29 (Tex. Crim. App. 1921) (recognizing that the practice of medicine includes optometry). By its plain language, subsection 351.005(a)(2)(B) effectively shields a licensed physician and those under his or her direction or instruction from some application of the Act. See TEX. OCC. CODE § 351.005(a)(2)(B). Your specific questions implicate Board action against a retailer under section 351.408 and against an optometrist under section 351.501. See Request Letter at 2. Whether a particular set of facts will support Board action in either case such that a particular retailer is subject to an injunction or civil penalty, or a particular optometrist is subject to discipline involves fact questions that are outside the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0205 (2018) at 1. However, the fundamental legal issue underlying your questions is essentially whether subsection 351.005(a)(2)(B)'s shield removes the retailer and the licensed optometrist in the lease arrangement you describe from regulation by the Act in its entirety. On that question, we can provide general advice on the construction and scope of subsection 351.005(a)(2)(B). See id.

In construing a statute, the "primary objective is to ascertain and give effect to the Legislature's intent." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); see Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). "To discern that intent," courts "begin with the statute's words." TGS-NOPEC Geophysical Co., 340 S.W.3d at 439. A court will also "consider statutes as a whole rather than their isolated provisions." Id.

We begin with the language of subsection 351.005(a)(2). It does not purport to categorically exempt a licensed physician from all aspects of the Act. See TEX. OCC. CODE § 351.005(a)(2). Instead, it limits the Board from interfering with certain rights of a licensed physician in specific circumstances. See id. The first is the physician's right to "treat or prescribe for a patient." Id. § 351.005(a)(2)(A). The second is the right of the physician to direct or instruct one under his or her control "to aid or attend to the needs of a patient according to the physician's specific direction, instruction, or prescription." Id. § 351.005(a)(2)(B). With respect to the physician's direction or instruction of another, the plain language of section 351.005(a)(2)(B) requires that the physician's direction, instruction, or prescription be specific. Id. Texas courts define the word "specific" to mean "explicit" or "relating to a particular named thing." KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (quotation marks omitted); see also WEBSTER'S THIRD NEW INT'L DICTIONARY 2187 (2002) (defining "specific" to mean "having a real and fixed relationship to and usu[ally] constituting a characteristic of: being peculiar to the thing or relation in question"). Further, that specific direction, instruction, or prescription must serve the purpose to "aid or attend to the needs of a patient." TEX. OCC. CODE § 351.005(a)(2)(B); see generally Tex. Att'y Gen. Op. Nos. MW-275 (1980) at 2-4 (discussing physician's delegation of a patient's care in the context of a predecessor to subsection 351.005(a)(2)); H-395 (1974) at 4 (discussing physician's responsibility over a delegatee under his control or supervision).

Briefing submitted to this office suggests that this section is an exemption for "physicians and their employees."[4] Subsection 351.005(a)(2)(B) uses the term "person," not "employee." Id. And though "person" is broadly defined for the Act's purposes and can include a licensed optometrist as an employee, the applicability of subsection 351.005(a)(2)(B) requires more than an employment relationship. See id.; see also id. §§ 351.002(5) (defining "person" to mean "an individual, association of individuals, trustee, receiver, partnership, corporation, or organization or the manager, agent, servant, or employee of any of those entities"); 351.457(b)(3) (acknowledging that an optometrist can be employed by a licensed physician). Instead, it is the nature of the function performed under the physician's direction or instruction that invokes the shield of subsection 351.005(a)(2)(B). See id. § 351.005(a)(2)(B) (providing that Act does not interfere with the right of a physician to "direct or instruct a person under the physician's control, supervision, or direction to aid or attend to the needs of a patient according to the physician's specific direction, instruction, or prescription").

We next consider the context of subsection 351.005(a)(2)(B). Courts will not construe a provision in isolation but will look to give it meaning consistent with the statute as a whole. See Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 326 (Tex. 2017) ("[W]e consider the context and framework of the entire statute and meld its words into a cohesive reflection of legislative intent."). As noted previously, chapter 351 prohibits an optometrist from giving up his or her independence in working with an ophthalmic retailer. See supra at 2; see also TEX. OCC. CODE § 351.408. The chapter also imposes educational and professional requirements on an optometrist. See, e.g., id. §§ 351.308 (requiring continuing education), .451-.460 (prohibiting practices by license holder). Construing section 351.005(a)(2)(B) to allow an optometrist under the direction or instruction of a physician to avoid all application of the Act simply by virtue of that employment relationship would essentially invalidate the regulatory framework for a subset of optometrists. Such a construction negates key provisions of the Act, and courts "do not lightly presume that the Legislature may have done a useless act." Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010). It is unlikely that the Legislature intended for subsection 351.005(a)(2)(B) to be so construed.

For these reasons, a court would likely not construe subsection 351.005(a)(2)(B) as a blanket exception from the Act in its entirety for any and all acts taken by those under the direction or instruction of a licensed physician just because they are conducted at the physician's direction. It operates as a shield when the physician's direction and instruction of a person under the physician's "control, supervision, or direction," including an optometrist, is to aid and attend to the needs of a patient as specifically directed, instructed, or prescribed by the physician. As we said before, the question whether any given set of circumstances will support Board action against a retailer or an optometrist involves fact questions that are outside the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0205 (2018) at 1.

S U M M A R Y

Occupations Code subsection 351.005(a)(2)(B) prohibits the Texas Optometry Board from preventing or interfering with the right of a physician licensed by the Texas Medical Board to "direct or instruct a person under the physician's control, supervision, or direction to aid or attend to the needs of a patient according to the physician's specific direction, instruction, or prescription."

Given the language and context of subsection 351.005(a)(2)(B), a court would likely conclude that it is not an exception from the Act in its entirety for any and all acts taken by those under the direction or instruction of a licensed physician just because they are conducted at the physician's direction. Subsection 351.005(a)(2)(B) operates as a shield when the physician's direction and instruction of the optometrist is to aid and attend to the needs of a patient as specifically directed, instructed, or prescribed by the physician. The question whether any given set of circumstances will support Board action against a retailer or an optometrist, however, involves fact questions that are outside the purview of an attorney general opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] Chapter 351 does not define "retailer of ophthalmic goods," but this office has previously defined the term to mean "a person or legal entity that sells to ultimate consumers spectacle lenses, frames, contact lenses, and other ophthalmic devices." Tex. Att'y Gen. Op. No. DM-170 (1992) at 5. For brevity, we will refer to retailers of ophthalmic goods simply as retailers.

[2] See Letter and attached brief from Mr. Chris Kloeris, Exec. Dir., Tex. Optometry Bd., to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Sept. 26, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[3] To distinguish an optometrist from an ophthalmologist, the optometrist holds the "degree of Doctor of Optometry (O.D.) after completion of at least 3 years of college followed by 4 years in an approved college of optometry." MOSBY'S DICTIONARY OF MEDICINE, NURSING & HEALTH PROFESSIONS 1276 (10th ed. 2017). An "ophthalmologist" is a "physician that specializes in the study and treatment of defects and diseases of the eye." WEBSTER'S THIRD NEW INT'L DICTIONARY 1582 (2002).

[4] See Brief from Jared Brandman, Senior Vice President, Gen. Counsel & Sec'y, Nat'l Vision, Inc., to Virginia K. Hoelscher, Chair, Op. Comm. at 4 (Oct. 30, 2019) (on file with the Op. Comm.).