Article XVI, Section 31 of the Texas Constitution

Adopted February 15, 1876:

The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for malpractice, but no preference shall ever be given by law to any schools of medicine.

Editor Comments

Historically, the last clause of this section ("no preference shall . . . schools of medicine") has been heavily litigation.

—Attorney Steve Smith

Recent Decisions

• Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n, 375 S.W.3d 464, 466-67 (Tex.App.–Austin 2012, denied) (footnote omitted) ("Article XVI, section 31 of the Texas Constitution authorizes the Legislature to 'pass laws prescribing the qualifications of practitioners of medicine in this State,' with the caveat that 'no preference shall ever be given by law to any schools of medicine.' . . . The net effect of the statutory interplay is that a person licensed by TBCE as a chiropractor but not by the TMB to 'practice medicine' (i.e., as a physician) can lawfully do things that would otherwise constitute 'practicing medicine' as long as he remains within the statutory scope of chiropractic under chapter 201.")

Historic Decisions

• Schlichting v. Texas State Bd. of Med. Examiners, 310 S.W.2d 557, 563 (Tex. 1958) ("The theory of both contentions is essentially that of discrimination against the appellant-defendant in that he has a recognized healing skill or profession, which . . . . The answer to this is the same one made to a complaining masseur by our Court of Criminal Appeals in Germany v. State, [] 137 S.W. 130, to wit, that by meeting the requirements for a license for the practice of medicine (as defined in Art. 4510, supra) he could readily procure the latter license, which in turn would permit him to practice his own peculiar method of diagnosis and treatment, there being no law prohibiting a licensed physician so to do.")

• Ex parte Halsted, 182 S.W.2d 479, 483 (Tex.Crim.App. 1944) (citations omitted) ("The practice of medicine, as contemplated and defined by law, is not restricted to the treatment of diseases and disorders of the human body by the use of drugs or surgery. Such is the effect of the holding in cases where those practicing chiropractic . . . were convicted of practicing medicine, as shown by: Teem v. State; Maier v. State; Guy v. State; Lemly v. State; Robertus v. State; Allison v. State; Piner v. State. Such was also true of masseurs (Dankworth v. State; Milling v. State; Hyroop v. State); also, of osteopaths (Ex parte Collins); and, of optometrists, prior to the passage of the Optometry Act (Baker v. State).")

• Baker v. State, 240 S.W. 924, 930 (Tex.Crim.App. 1921) ("While the Constitution forbids any legislation showing preference for any school of medicine, it does not . . . . We think the Legislature has power to prescribe the duties of nurses, of opticians, and of optometrists, and also to define those things which shall constitute the practice of medicine in this state. Having such power, we also think the Legislature may make as a part of its definition of the practice of optometry, or the duties of opticians, a distinction between the powers and duties of same, and those which are to be considered as the practice of medicine; and this is as far as the Legislature has gone in said optometry bill in our judgment.")

• Dowdell v. McBride, 47 S.W. 524, 525 (Tex. 1898) ("The first portion dealing solely with 'qualifications of practitioners' and 'punishment,' and there being nothing in the context to indicate that the latter portion was intended to embrace any wider range of subjects, we must give it the effect, indicated by its situation and close connection with what precedes, of being merely a limitation upon the previous general power of prescribing 'qualifications of practitioners' and 'punishments.' Therefore it should not be construed as intending to control the legislature in the . . . matter of prescribing the qualifications of members of the 'board of medical examiners' provided for in article 3778, above quoted.")

Library Resources

• Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)

• The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)

• The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)

Online Resources

• Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)

• Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)

• Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)