438 F.Supp. 428 (E.D.Tex. 1977), B-75-277, Rogers v. Friedman

Docket Nº:B-75-277-CA.
Citation:438 F.Supp. 428
Party Name:Dr. N. Jay ROGERS, Plaintiff, W. J. Dickinson, Individually and as President of the Texas Senior Citizens Association, Port Arthur, Texas Chapter, Intervenor, v. Dr. E. Richard FRIEDMAN, Dr. John B. Bowen, Dr. Hugh A. Sticksel, Jr., Dr. John W. Davis, Dr. Sal Mora, Defendants, Texas Optometric Association, Inc., Intervenor.
Case Date:September 12, 1977
Court:United States District Courts, 5th Circuit, Eastern District of Texas
 
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Page 428

438 F.Supp. 428 (E.D.Tex. 1977)

Dr. N. Jay ROGERS, Plaintiff, W. J. Dickinson, Individually and as President of the Texas Senior Citizens Association, Port Arthur, Texas Chapter, Intervenor,

v.

Dr. E. Richard FRIEDMAN, Dr. John B. Bowen, Dr. Hugh A. Sticksel, Jr., Dr. John W. Davis, Dr. Sal Mora, Defendants, Texas Optometric Association, Inc., Intervenor.

No. B-75-277-CA.

United States District Court, E.D. Texas

Sept. 12, 1977

Page 429

Robert Q. Keith, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for plaintiff.

John G. Tucker, Orgain, Bell & Tucker, Beaumont, Tex., for defendants in their individual capacities.

Joe R. Greenhill, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, Tex., for defendants, Texas Optometry Bd.

Larry Niemann, Niemann & Niemann, Austin, Tex., for the Texas Optometric Ass'n, Inc.

Brian R. Davis, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for intervenor, Texas Senior Citizens Ass'n of Port Arthur, Texas et al.

James B. Wesley, Houston, Tex., for intervenors, R. E. Hughes, O. D., et al.

Stephen L. Burkett, Burkett & Burkett, Inc., Corpus Christi, Tex., for Texas State Optical of Parkdale Plaza, Corpus Christi, Tex.

John L. Hill, Atty. Gen., State of Texas, Austin, Tex., for the State of Texas.

Before GOLDBERG, Circuit Judge, and FISHER and STEGER, District Judges.

MEMORANDUM OPINION

By this civil action, filed pursuant to, inter alia, 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2281, et. seq., Plaintiffs seek to enjoin on constitutional grounds enforcement of provisions of the Texas Optometry Act, Tex.Rev.Civ.Stat.Ann. art. 4552-1.01, et. seq., by the Texas Optometry Board ('Board'). More specifically, Plaintiffs assert the following are violative of their constitutional rights under the first and fourteenth amendments: (1) the prohibition against price advertising, Vernon's Ann.Civ.Stat. art. 4552-5.09(a); (2) the mandatory colloquy between the optometrist and his patient regarding referral to an optician, Vernon's Ann.Civ.Stat. art. 4552-5.15(e); (3) the composition of the Board, Vernon's Ann.Civ.Stat. art. 4552-2.02; and (4) the forbiddance of practice under a trade name, Vernon's Ann.Civ.Stat. art. 4552-5.13(d).

Vernon's Ann.Civ.Stat. art. 4552-5.09(a) provides in pertinent part that '[n]o optometrist shall publish or display . . . any statement or advertisement of any price offered or charged by him for any ophthalmic services or materials . . .' The recent decision of the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), makes it clear, however, that any blanket suppression of truthful price advertising is a violation of the right of commercial free speech. The Court therefore holds that art. 4552-5.09(a) is violative of the First Amendment.

The Texas Optometry Act further provides that '[n]o optometrist shall practice . . . optometry under, or use in connection with his practice of optometry, any . . . trade name . . . other than the name under which he is licensed to practice optometry in Texas . . ..' Vernon's Ann.Civ.Stat. art. 4552-5.13(d). As noted above, Plaintiffs have asserted

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that this article infringes on their constitutional rights. More particularly, they allege that it transgresses on their right to commercial free speech under the first amendment. 1 In deciding a first amendment question, the Court's function is to balance competing interests. That is, it must weigh the purported justifications for the restriction in question against its deprivation of first amendment rights and the subsequent harm, if any. See generally Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

In the instant case, Defendants assert that in the first amendment balancing test, any possible harm to the public is far outweighed by (1) the dangers to the doctor/patient relationship, (2) the deterioration of the quality of eye care, (3) the practical 'concealment' of the optometrists' identity, and (4) the potential for deception and misrepresentation inherent in an assumed name practice. Based on the evidence and briefs before this Court, the Court finds Defendants' assertions unpersuasive. Although the Defendants rely extensively on supportive language contained in the decision of the Texas Supreme Court in Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (1967), this Court notes (1) the question before the Texas Court in Carp was not constitutional but whether the Texas board had exceeded its delegated power from the Legislature, (2) the names whose use were in question were those of licensed optometrists who sold Carp their locations, and (3) the Carp decision was rendered well before the recent Supreme Court pronouncements in Va. Pharmacy Bd. v. Va. Consumer Council, supra, and Bates v. State Bar of Arizona, supra.

In both the Bates and Virginia Pharmacy decision, in the process of striking down blanket suppression of truthful advertising, the Supreme Court addressed at great length the importance of commercial free speech in society. The Court declared in Bates that 'the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.' Bates v. States Bar of Arizona, supra, 433 U.S. at ----, 97 S.Ct. at 2699. Further, that 'commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system.' Ibid...

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