Untitled Texas Attorney General Opinion ( 1972 )

Hon. M. H. Crabb, Secretary Opinion NO. ~-1192
Texas State Board of Medical
Examiners Re: Whether the piercing
1612 Summit Avenue, Suite 303 of ears by a lay person
Fort Worth, Texas 76102 or organization for
monetary or other con-
sideration constitutes
the "practice of medi-
cine" within the meaning
of Article 4510, Vernon's
Dear Dr. Crabb: Civil Statutes?
Your recent letter requesting the opinion of this
office concerning the referenced matter states as follows:
"The Texas State Board of Medical Examiners
in Executive Session on Saturday, July 22, 1972,
passed a Resolution requesting an Opinion as to
the legality of a lay-organization or a lay-person
not licensed to practice the Healing Arts can
legally pierce ears where a charge is made for the
service, or where the service is provided as a
consideration for the purchase of the earrings,
constitutes the practice of medicine as defined
in Article 4510, Revised Civil Statutes of Texas."
Article 4510, Vernon's Civil Statutes, provides as
follows:
"Any person shall be regarded as practicing
medicine within the meaning of this law:
"(1) Who shall publicly profess to be a phy-
sician or surgeon and shall diagnose, treat, or
offer to treat, any disease or disorder, mental
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Dr. M. H. Crabb, page 2, (M-1192)
or physical, or any physical deformity or injury,
by any system or method, or to effect cures
thereof: (2) or who shall diagnose, treat or
offer to treat any disease or disorder, mental
or physical or any physical deformity or injuxy
by any system or method and to effect cures
thereof and charge therefor, directly or indirectly,
money or other compensation. . . ."
The legal question presented by your request is one
of first impression in this State.
We take notice of the fact that the reason persons,
primarily females, desire to~have their ears pierced is so
they will be able to wear certain styles of earrings which,
absent such piercing, could not be attached to their ear lobes.
Article 4510, supra, speaks in terms of an unlicensed
layman's treating a physical or mental "disease, disorder,
deformity, or injury". We fail to see how the piercing of ears
can possibly constitute treatment of a "disease, disorder,
deformity, or injury" within the meaning of that Article.
We believe the rationale applicable to our holding
is best expressed in the analogous case of People v. Lehrman,
296 N.Y.S. 580 (N.Y.App.Div. 1937). There, the defendant was
indicted for unlawfully practicing medicine. In her regular
course of business, she operated a beauty parlor and removed
hair from females' faces by means of the electrolysis process.
In overturning her conviction, the court held that: "Practices
such as this have always been held to be matters of personal
taste and adornment and not connected with the practice of
medicine." 296 N.Y.S. at 581.
For other holdings to the same effect, see Encel v.
Gerstenfeld, 171 N.Y.S. 1084 (N.Y. App.Div. 1918); People v.
Maqqi, 33 N.E.2d 925 (Ill.App.Div. 1941), aff'd 39 N.E.2d 317
(Ill.SUP. 1942); and 56 A.L.R. 2d 904 (1957).
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.
Dr. M. H. Crabb, page 3, (M-1192)
In view of the foregoing authorities, you are advised
that the piercing of ears by a lay person or organization for
monetary or other consideration does not constitute the "prac-
tice of medicine."
You are further advised that any medical treatment
of the ear lobe, should the same be required as the result of
the initial piercing of the lobe, would constitute the "prac-
tice of medicine". We are not advised that such medical treat-
ment is ordinarily required or to be reasonably expected.as
the result of this practice.
SUMMARY
_------
The piercing of ears by a lay person or organ-
ization for monetary or other consideration does
not constitute the "practice of medicine", within
the meaning of Article 4510, Vernon's Civil Statutes.
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Swearingen
Bill Flanary
Bob Gauss
Scott Garrison
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Dr. M. H. Crabb, page 4, (M-1192)
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOL?! WHITE
First Assistant
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