Texas Attorney General Opinion: JC-342 Page: 4 of 7
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The Honorable Florence Shapiro - Page 4
1968). An agency rule that imposes additional burdens, conditions, or restrictions in excess of or
inconsistent with the relevant statutory provisions is invalid. See Hollywood Calling v. Pub. Util.
Comm 'n, 805 S.W.2d 618, 620 (Tex. App.-Austin 1991, no writ).
The Board's physician advertisement rules are adopted pursuant to section 153.001 and
section 101.201 of the Occupations Code. See 25 Tex. Reg. 1497 (2000), adopted 25 Tex. Reg.
4348 (to be codified at 22 TEX. ADMIN. CODE 164.1). The Board is the state agency empowered
to regulate the practice of medicine. See TEX. OCC. CODE ANN. 152.001 (Vernon 2000). Section
153.001 of the Occupations Code grants the Board broad rule-making authority. It expressly
authorizes the Board to adopt rules as necessary to perform its duties, regulate the practice of
medicine, and to enforce the Medical Practice Act, subtitle B of title 3 of the Occupations Code,
chapters 151-165. See id. 153.001. Under the Medical Practice Act, the Board is charged with
taking disciplinary actions against prohibited physician practices, including the use of false,
misleading, or deceptive advertising statements or statements regarding professional superiority or
services that are not readily subject to verification. See id. 164.051 (grounds for license denial
or disciplinary action), .052(a)(6), (7) (prohibited practices, including false, misleading, or deceptive
advertising statements); Act of May 25, 1999, 76th Leg., R.S., ch. 1271, 3, sec. 3.08, 1999 Tex.
Gen. Laws 4383, 4384 (amending former article 4495b, section 3.08, Revised Civil Statutes,
predecessor to sections 164.051 and .052, without reference to repeal and codification ofthat article).
The Medical Practice Act does not define or set out specifically what constitutes false, misleading,
or deceptive advertising statements or professional superiority or service statements not readily
subject to verification.
Chapter 101 of the Occupations Code, however, containing provisions applying to health
professions generally, does. Section 101.201, like section 164.051, also prohibits "advertising that
is false, misleading, deceptive, or not readily subject to verification," and deems advertising that
contains a testimonial to be "false, misleading, deceptive, or not readily subject to verification."
TEX. Occ. CODE ANN. 101.201 (a), (b)(4) (Vernon 2000). A violation of this section, among others,
is grounds for revocation or denial of a license by the appropriate health agency, see id. 101.204,
which with respect to physicians, is the Board. See id. 152.001 (Board to regulate practice of
medicine); 164.051 (grounds for license denial or disciplinary action); 164.052(a)(6), (7) (prohibited
practices, including false, misleading, or deceptive advertising statements, or statements not readily
subject to verification). Thus, the legislature in section 101.201(b)(4) has deemed a health
profession advertisement containing a testimonial to be false, deceptive, or misleading and has
prohibited such advertising.4
40ther regulatory bodies have determined that testimonials are inherently misleading. See, e.g., Fla. Bar: In
re Rules Regulating Fla. Bar-Adver. Issues, 571 So. 2d 451,461 (Fla. 1990) (commentary explaining that endorsement
or testimonials are prohibited as false, misleading, deceptive or unfair communication because "they are inherently
misleading to a layman untrained in the law" and "[p]otential clients are likely to infer from the testimonial that the
lawyer will reach similar results in future cases" ); Minn. Acad. ofChiropractors, Inc. v. Minn. State Bd. ofChiropractic
Exam 'rs, 169 N.W.2d 26, 30 (Minn. 1969) ("Whether true or false, to the extent that the testimonial may be construed
as a promise to cure, it is declared by statute to be fraudulent and misleading.").(JC-0342)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-342, text, February 20, 2001; (https://texashistory.unt.edu/ark:/67531/metapth274651/m1/4/: accessed April 27, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.