Untitled Texas Attorney General Opinion ( 1975 )

THE ATTORNEY GENEIRAL
OF TEXAS
AURTIN, TXCXAS 78711
JOHN IA. aria,
A-rro- OSXUERAL
August 19. 1975
The Honorable R. T. Weber, D.D.S. Opinion No. H-669
Secretary-Treasurer
Texas State Board of Dental Examiners Re: Authority of the Board of
Capital National Bank Building Dental Examiners with regard
Austin, Texas 78701 to dental hygienists and dental
assistants.
Dear Dr. Weber:
You have requested our opinion as to the authority of the Texas State
Board of Dental Examiners to require dental assistants to register with the Board
and pay an annual fee, and by rule to permit the employment of more than o~ne
dental hygienist per individual dentist and more than two dental hygienists per
dental office.
Annual registration aml payment of a licensing fee is required by statute
of dentists, article 4550a, V. T. C. S. , dental hygienists, article 4551e, and dental
lab technicians, article 4551f. No statute deals with the registration of dental
assistants or requires them to pay any fee. Dental assistants are referred to only
in article 4551d, which provides, in pertinent part:
The Texas State Board of Dental Examiners
is hereby authorized and empowered to a-
dopt, promulgate, and enforce such rules
and regulations as the Board may deem
necessary and advisable to prescribe and ‘.
maintain standards of professional conduct
of those persons under the jurisdiction of
the Texas State Board of Dental Examiners
and to protect the public health and welfare.
Such rules and regulations may define and
regulate the acts and areas of practice and
govern the relationship between and the acti-
1,
and dental assistants, and their relationship
to other branches of the healing arts and to
or with the public, and make such other rules
and regulations as the Board may deem advis-
able to protect and to foster the public health
and welfare . . . (emphaiis added)
We do not believe that the mere reference to dental assistants in article
4551d is sufficient to confer upon the Board the authority to require of dental assis-
tants, annual registration and payment of fees. A statutory board may
p. 2921
r.. .
The Honorable R. T. Weber, D. D. S. - Page 2 (H-669)
exercise only such authority as is conferred
upon it by law in clear and unmistakable terms
and the same will not be construed as being
conferred by implication. Board of Insurance
Commissioners v. Guardian Life Insurance Co.,
180 S. W. 2d 906, 908 (Tex. Sup. 1944). See also
--
Corzelius v. Railroad Commiss’ion, 182 S. W. 2d
412, 415 (Tex. Civ. App.. -Austin 1944, no writ).
In State v. Cortez, 333 S. W. 2d 839 (Tex. Sup. 1960), the Supreme Court held that
the power of the State Board of Morticians to “prescribe rules and regulations per-
taining to the operation of all funeral establishments” did not confer on the Board
the power to require such funeral establishments to obtain a license to operate.
Furthermore, as we indicated in Attorney General Opinion H-443 (1974), “it is well
established in our law that. unless a fee is arovided bv law for an official service
required to be performed and the amount fixed by law, ’ none can lawfully be charged. ”
See Nueces County v. Currington, 162 S. W. 2d 687, 688 (Tex. Sup. 1942); &icGaila
TCity of Rockdale, 246 S. W. 654, 655 (Tex. Sup. 1922); Attorney General Opinion
V-1426 (19521. It is therefore our opinion that the Board may not require dental
assistants to register with the Board and pay an annual fee.
We also answer your second question in the negative. Section 3 of article
4551e, V. T. C. S., provides:
. . . It shall be unlawful for more than one den-
tal hygienist to practice dental hygiene for one
dentist at any one time, and it shall be unlawful
for a dentist legally engaged in the practice of
dentistry in this state to employ, under any con-
tractual relationship whatsoever, more than one
dental hygienist to practice dental hygiene at any
one time. No dental office, regardless of the
number of dentists practicing or offering to prac-
tice dentistry in such office, shall have employed
under any contractual relationship whatsoever
more than two (2.) dental hygienists to practice den-
tal hygiene therein.
Article 4551e expressly prohibits the employment of more than one den-
tal hygienist by an individual dentist, and also prohibits the employment of more
than two dental hygienists in any dental office. Where the language of a statute is
unambiguous and its meaning clear, the statute should be given effect according to
its terms. Board of Insurance Commissioners v. Guardian Life Insurance Co.,
supra, at 909. In such a case, there is no need to apply any rules of construction.
Fox v. Bureess. 302 S. W. 2d 405, 409 (Tex. SUP. 1957). As a result, we believe it
is clear that the Board may not by rulk alter ihe expr.ess proscription of the stat.-
ute to permit the employment of more than one dental hygienist by an individual den-
tist, or the employment of more than two dental hygienists. per ,dental bffic’e.
p. 2922
The Honorable R. T. Weber, D. D. S. - Page 3 (H-669)
SUMMARY
The Texas State Board of Dental Examiners may
not require dental assistants to register with the Board and
pay an annual fee,nor may it permit by rule the employment
of more than one dental hygienist per individual dentist and
more than two dental hygienists per dental office.
. NDALL, First Assistant
Opinion Committee
jad:
p. 2923