Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 20, 2016
The Honorable Charles Schwertner Opinion No. KP-0124
Chair, Committee on Health and
Human Services Re: Whether doctors of osteopathy are
Texas State Senate authorized to issue certificates of medical
Post Office Box 12068 examination under chapter 574 of the Health
Austin, Texas 78711-2068 and Safety Code (RQ-0133-KP)
The Honorable Joan Huffman
Chair, Committee on State Affairs
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068
Dear Senator Schwertner and Senator Huffman:
You request an opinion addressing whether doctors of osteopathy "have legal authority to
issue Certificates of Medical Examination and other relevant documents under Health and Safety
Code, Chapter 574." 1 Chapter 574 governs court-ordered mental health services. See TEX.
HEALTH & SAFETY CODE §§ 574.001-.203. Through this chapter, the Legislature authorized
certain judges to commit individuals to involuntary psychiatric care in specific circumstances. See_
id. §§ 574.034-.035 (authorizing a judge to order a proposed patient to receive court-ordered
inpatient mental health services upon making certain findings). Section 574.001 provides that a
"county or district attorney or other adult may file a sworn written application for court-ordered
mental health services." Id. § 574.00l(a). Before holding a hearing on an application for court-
ordered mental health services, the court must have on file "at least two certificates of medical
examination for mental illness completed by different physicians each of whom has examined the
proposed patient during the preceding 30 days." Id. § 574.009(a). 2 Section 574.011 establishes
the requirements for a certificate of medical examination for mental illness, and the certificate
1
Letter from Honorable Charles Schwertner, Chair, Senate Comm. on Health & Human Servs. and Honorable
Joan Huffinan, Chair, Senate Comm. on State Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Oct. 6, 2016),
https ://www.texasattomeygeneral.govI op in ion/requests-for-opinions-rqs ("Request Letter").
2
At least one of the two physicians submitting certificates of medical examination for mental illness must be
a psychiatrist if a psychiatrist is available in the county. TEX. HEALTH & SAFETY CODE § 574.009(a). Doctors of
osteopathy can specialize in the practice of psychiatry. See AM. OSTEOPATHIC ASS'N, https://www.
osteopathic.org/inside-aoa/development/aoa-board-certification/Pages/neurology-psychiatry-certification.aspx (listing
the requirements for certification in the practice of psychiatry) (last visited Dec. 7, 2016).
The Honorable Charles Schwertner (KP-0124)
The Honorable Joan Huffman
Page 2
"must be sworn to, dated, and signed by the examining physician." Id. § 574.01 l(a). Your
question concerns who qualifies as a "physician" authorized to issue these certificates of
examination under section 574.009.
As a preliminary matter, we note that while courts consider attorney general opinions
persuasive authority, our opinions do not constitute binding law. Tex. Alcoholic Beverage Comm 'n
v. Amusement & Music Operators ofTex., Inc., 997 S.W.2d 651, 656 (Tex. App.-Austin 1999,
pet. dism'd w.o.j.). We have no authority to reverse a decision by a court. However, we have a
constitutional and statutory duty to provide opinions on the meaning of the statutes the Legislature
enacts and will answer your question pursuant to this duty. See TEX. CONST. art. IV, § 22; TEX.
Gov'T CODE § 402.042(a); see also Tex. Att'y Gen. Op. No. GA-0630 (2008) at 4 ("The attorney
general's constitutional duty to render legal advice ... does not include the authority to legislate
or establish binding judicial precedent. We may advise only about our understanding of the current
status of the law." (citations omitted)).
The Legislature has not defined "physician" specifically within chapter 574. However,
chapter 574 is within Title 7, Subtitle C, which is titled the "Texas Mental Health Code." For
purposes of the Mental Health Code, including section 574.009, the Legislature has defined
"physician" as:
(A) a person licensed to practice medicine in this state;
(B) a person employed by a federal agency who has a license to
practice medicine in any state; or
(C) a person authorized to perform medical acts under a physician-
in-training permit at a Texas postgraduate training program
approved by the Accreditation Council for Graduate Medical
Education, the American Osteopathic Association, or the Texas
Medical Board.
TEX. HEALTH & SAFETY CODE§ 571.003(18) (emphasis added). 3 With regard to the definition of
physician in subsection (A), individuals with a degree designation of doctor of osteopathy may
become licensed to practice medicine in this State. See TEX. Occ. CODE § 162.151 (4) (defining
"physician" for purposes of the physician credentialing statutes as "a holder of or applicant for a
license [to practice medicine] as a medical doctor or doctor of osteopathy"). In order to obtain a
license to practice medicine in Texas, an applicant must meet certain requirements, including that
the applicant be a graduate of an approved medical school. Id. § 155.003(a)(4). That section
further provides that "[a]ll medical or osteopathic medical education an applicant receives in the
United States must be accredited by an accrediting body officially recognized by the United States
Department of Education as the accrediting body for medical education leading to the doctor of
3
The Occupations Code also defines "physician" for purposes of the Medical Practice Act as "a person
licensed to practice medicine in this state." TEX. Occ. CODE§ 151.002(12).
The Honorable Charles Schwertner (KP-0124)
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medicine degree or the doctor of osteopathy degree." Id. § 155.003(b) (emphasis added). This
provision demonstrates that the Legislature intended for either a doctor of medicine degree or a
doctor of osteopathy degree to satisfy the medical school graduation requirement to obtain
licensure as a physician. Consistent with this provision, the Texas Medical Board licenses as
physicians both doctors of medicine and doctors of osteopathy in the same manner, giving them
the same legal status. 4 Furthermore, in subsection 571.003(18)(C), the Legislature has defined
physician specifically for purposes of the Mental Health Code to include an individual obtaining
postgraduate training in a program approved by an osteopathic accrediting organization,
suggesting that it intended to include osteopathic doctors among those who may issue a certificate
of medical examination for mental illness. See TEX. HEALTH & SAFETY CODE§ 571.003(18)(C);
see Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011) (explaining that the plain meaning of a
statute is the best expression oflegislative intent).
In addition, the Healing Art Identification Act mandates how specific degree holders in the
healing arts shall identify themselves professionally. See TEX. Occ. CODE§ 104.003; see also id.
§ 104.002 (defining "healing art" to include a diagnosis to ascertain an unhealthy mental
condition); Dunlap v. Young, 187 S.W.3d 828, 832 (Tex. App.-Texarkana 2006, no pet.) ("[T]he
term 'healing arts' is treated as nearly synonymous with 'health professions' or 'the practice of
medicine."'). The Legislature has expressly provided that"[a] person who is licensed by the Texas
State Board of Medical Examiners and holds a doctor of osteopathy degree shall" identify himself
or herself using certain specific designations, including, as one option, ''physician or surgeon,
D.O." TEX. Occ. CODE § 104.003(c)(l) (emphasis added). Thus, the Legislature considers
licensed individuals with a doctor of osteopathy degree to be physicians.
Section 574.009 of the Health and Safety Code requires that a physician perform a medical
examination on the proposed patient before issuing a certificate of medical examination for mental
illness, and chapter 574 does not limit the type of medical education degree a physician must hold
in order to do so. See TEX. HEALTH & SAFETY CODE§ 574.009(a). Thus, pursuant to chapter 574
of the Health and Safety Code, an individual licensed to practice medicine in this State, whether
holding a doctorate degree in medicine or osteopathy, may issue a certificate of medical
examination for mental illness.
The Legislature has expressly prohibited a "hospital, institution, or program that is licensed
by the state, is operated by the state or a political subdivision of the state, or directly or indirectly
receives state financial assistance" from discriminating against "a person [licensed as a physician]
solely on the basis of the academic medical degree held by the person." TEX. Occ. CODE
§ 151.05l(a). Refusing to accept a certificate of examination for mental illness from a physician
solely on the basis that the physician holds a degree designation of doctor of osteopathy rather than
a degree of medicine appears to constitute the type of discrimination that the Legislature
4
See Letter from Scott M. Freshour, Gen. Counsel, Tex. Med. Bd., to Honorable Rory R. Olsen, Harris Cty.
Probate Ct. Number Three at I (Sept. 21, 2016) (attached to Request Letter) (on file with the Op. Comm.).
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specifically sought to avoid. We find no authority to reject a certificate of medical examination
for mental illness solely on the degree designation distinction.
The Honorable Charles Schwertner (KP-0124)
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SUMMARY
Pursuant to chapter 574 of the Health and Safety Code, an
individual licensed to practice medicine in this State, whether
holding a doctorate degree in medicine or osteopathy, may issue a
certificate of medical examination for mental illness as provided in
section 574.009.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee