Untitled Texas Attorney General Opinion

Clinton DeWolfe, O.D. Opinion No. JM-1081

Chairman

Texas Optometry Board Re: Whether the Texas Optometry

P. 0. Box 988 Act prohibits an optician from

Blanco, Texas 78606 giving another free pair of

spectacles, eyeglasses or contact

lenses to a person who purchases

a first pair (RQ-1667)

Dear Dr. DeWolfe:

You inform us that opticians and national laboratories

have recently offered a free pair of eyeglasses or contact

lenses to purchasers of a first pair of glasses or contact

lenses. You ask whether these "buy-one, get-one-free" sales

violate section 5.06 of the Texas Optometry Act and a board

rule based on that section. Section 5.06 provides as

follows:

It shall be unlawful for any person in

this state to give, or cause to be given,

deliver, or cause to be delivered, in any

manner whatsoever, any spectacles or eye-

glasses, separate or together, as a prize

or premium, or as an inducement to sell

any book, paper, magazine or any work of

literature or art, or anv item of merchandise

whatsoever. (Emphasis added.)

V.T.C.S. art. 4552-5.06. A person who violates any provi-

sion of the Texas Optometry Act is guilty of a misdemeanor

punishable by a fine, confinement in the county jail, or

both. V.T.C.S. art. 4552-5.19.

An Optometry Board rule provides that "no person in

this state shall give . . . any contact lenses as a prize or

premium, or as an inducement to sell any book, paper,

magazine, or any work of literature or art, or any item of

merchandise whatsoever." 22 T.A.C. 5 273.3. The rule does

not state that it is unlawful to give contact lenses as a

premium to sell an item of merchandise.

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Dr. Clinton DeWolfe - Page 2 (JM-1081)

You ask whether section 5.06 and board rule 273.3

prohibit giving a second pair of spectacles, eyeglasses, or

contact lenses to a person who purchases a first pair. If

we conclude that this practice is prohibited, you ask

whether it would also prohibit a gift of free frames or free

lenses as an inducement to sell eyeglasses, and a sale of

eyeglasses, frames, or lenses for one cent or another

insignificant amount.

Article 4552-1.02, V.T.C.S., provides in part:

The 'practice of optometry' is defined to

be the employment of objective or subjective

means . . . for the purpose of ascertaining

and measuring the powers of vision of the

human eye, and fitting lenses or prisms to

correct or remedy any defect or abnormal

condition of vision. . . T

V.T.C.S. art. 4552-1.02(l).

A "dispensing optician" or *'opthalmic dispenser" is

defined as Ita person not licensed as an optometrist or

physician who sells or delivers to the consumer fabricated

and finished spectacle lenses, frames, contact lenses, or

other opthalmic devices prescribed by an optometrist or

physician." V.T.C.S. art. 4552-1.02(5). See V.T.C.S. art.

4552-1.02(3)(A) (ophthalmic dispenser is not prohibited from

making facial measurements to dispense or adapt ophthalmic

prescriptions or lenses, products and accessories). 4E

also Williamson v. Lee Ontical of Oklahoma, 348 U.S.

486 (1955) (an optician iS qualified to grind lenses, fili

prescriptions, and fit frames).

A l%wo-for-onel~ sale of eyeglasses by a dispensing

optician may merely be a pricing policy which gives a volume

discount. We will not, however, deal with your question in

terms of pricing policies that may be adopted by persons

who sell prescription glasses. Instead, we will consider

whether a pair of spectacles, eyeglasses, or contact lenses

is an "item of merchandise" within section 5.06 of the act.

Article 4552 does not define the term "merchandise,"

but it uses this word in other provisions. When the same

word is used more than once in a statute, it will be given

the same meaning, unless a different intent is indicated.

Brown v. Darden, 50 S.W.2d 261 (Tex. 1932).

Article 4552-5.17, V.T.C.S., provides in part:

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Nothing in this Act shall be construed to

apply to persons who sell ready-to-wear

spectacles and eyeglasses as merchandise at

retail . . . . (Emphasis added.)

V.T.C.S. art. 4552-5.17. The definition of the "practice of

optometry" includes a similar provision on selling ready-to-

wear spectacles or eyeglasses as merchandise. V.T.C.S. art.

4552-1.02(l).

These provisions apply to the sale of mass-produced

items like non-prescription sunglasses and eyeglasses that

are essentially magnifying glasses in a frame. These items

are not custom-made to correct the wearer's defects in

vision and no special order is necessary to buy them.1

t'Merchandisel'has been broadly defined as "all goods

which merchants usually buy and sell, whether at wholesale

or retail; wares and commodities such as are ordinarily the

objects of trade and commerce." Black's Law Dictionary 890

(5th ed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex.

Ct. App. 1891). A "merchantl' is a "person who purchases

goods at wholesale for resale at retail.'! Black's Law

Dictionary, sunra.

"Merchandise" has also been defined more narrowly to

exclude an item which was specially prepared or modified

according to the purchaser's specifications. A Missouri

court has held that a contract to prepare and set up a

monument in a cemetery was a contract for labor and not a

contract for "goods, wares, and merchandise" within the

state's statute of frauds. Carrollton Monument Co. v.

Gearv, 240 S.W. 506 (MO. Ct. App. 1922).

1. A prior version of section 5.06 describes in some

detail the sale of eyeglasses as merchandise. A 1925 bill

amending the statute regulating optometrists provided that

"[plersons who sell spectacles and eye-glasses as merchan-

dise" meant "merchants who do not practice optometry, or

offer to practice optometry, but who sell spectacles or

eye-glasses as merchandise, after they have been selected by

their customers alone without the aid from the merchant

. . . other than the particular and complete and. ready-to-

wear spectacles or eye-glasses selected by the customer in

person from trays- or other containers. . . .'I Acts. 1925,

39th Leg., ch. 31, 5 13-c, at 151.

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Texas courts have also recognized this distinction in

defining "merchandise*' under the Bulk Sales Law, which

applies to the sale in bulk of a stock of merchandise, or

merchandise and fixtures pertaining to conducting said

business otherwise than in the ordinary course of trade.2

Hobart MFG. Co. v. Jovce & Mitchell, 4 S.W.2d 185, 187 (Tex.

Civ. App. - Fort Worth 1928, no writ). In Axtell Co. v.

Word

-, 29 S.W.2d 421 (Tax. Civ. App. - Austin 1930, no writ),

the court stated that Texas courts have construed the Bulk

Sales Act as not applying to "stock on hand used as

incidental to or in connection with labor or mechanical

skill." The court further stated as follows:

The words, 'stock of merchandise,* as used in

the statute have been uniformly construed by

our courts to be used in the common and

ordinary acceptation of those terms, and to

mean the goods, wares, or chattels which a

merchant holds for sale at retail for profit,

and which are constantly going out of the

store . . . and being replaced by other goods

without any appreciable change of character

by the labor or mechanical skill of purchaser

[i.e., of the person who purchased the goods

for resale].

29 S.W.Zd 421.

Thus ltmerchandisellin some statutes does not include

items which must be changed and adapted to the customer's

individual requirements. We believe that the Texas

Optometry Act uses "merchandise" in this sense. In section

5.17, "ready-to-wear spectacles and eyeglasses" sold "as

merchandise at retail" are mass-produced goods not adapted

to the customer's vision. This language does not include

eyeglasses and spectacles that may only be sold on a

prescription. The same definition of "merchandise" also

applies to the prohibition in article 4552-5.06, V.T.C.S.,

against giving away eyeglasses as an inducement to sell a

2. The Bulk Sales Act has been repealed and replaced

by the Uniform Commercial Code -- Bulk Transfers, Bus. &

Corn. Code ch. 6. We have cited cases which construe the

Bulk Sales Law to illustrate a possible definition of

"merchandise." We express no opinion on whether the frames

and lenses which a dispensing optician adapts in accordance

with written prescriptions would be "merchandise" within the

Bulk Transfers provisions.

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Dr. Clinton DeWolfe - Page 5 (JM-1081)

book, paper, magazine, work of literature or art, "or any

item of merchandise." Article 4552-5.06 does not prohibit

a dispensing optician or ophthalmic dispenser from giving

away a second pair of prescription eyeglasses as a means of

motivating people to have him fill the prescription for the

first pair.

Two other provisions of the Texas Optometry Act show

that a "mercantile establishment" does not include the

business premises of a dispensing optician. Article

4552-5.14 regulates the business practices of an Optometrist

"who leases space from and practices optometry on the

premises of, a mercantile establishment.1' V.T.C.S. art.

4552-5.14(a). See senerally Attorney General Opinion O-1588

(1939) (practice by optometrists in jewelry stores). It

requires the leased space to be separated from space used by

other occupants of the premises and prohibits operation of

the optometrist's practice as a department of the mercantile

establishment. V.T.C.S. art. 4552-5.14(d)-(g).

Article 4552-5.15, V.T.C.S., governs the business rela-

tionships of optometrists with dispensing opticians. It

permits a dispensing optician to lease space to an

-.

optometrist. It also provides for complete separation

between the premises of an optometrist and a dispensing

optician if both occupy space in the same building. See

Attorney General Opinion MW-292 (1981).

Both provisions deal with the leasing of premises and

with separating an optometrist's business from other types

of business conducted in the same building. The leqisla-

ture's adoption of separate provisions to govern the

optometrist's relationship to "mercantile establishments"

and to "dispensing opticians" indicates that a dispensing

optician does not operate a tUmercantile establishment."

These provisions carry out and support the distinction

between "merchandise" and prescription glasses and contact

lenses which we have found in article 4552-5.06, V.T.C.S.

Moreover, this situation appears to be an appropriate

case for applying the maxim of ejusdem qeneris. Where

general words follow specific words in a statutory enumera-

tion, the general words are construed to embrace only

objects similar in nature to those objects enumerated by

the preceding specific words. Emolovees' Casualtv Co. v.

Stewart Abstract Co., 17 S.W.2d 781 (Tex. Comm'n App. 1929).

The first version of article 4552-5.06 was adopted in

1925. Acts 1925, 39th Leg., ch. 31, at 149. We are unaware

of any history evidencing the legislature's intent in

adopting this provision, although its language suggests that

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it was directed at a practice of giving away eyeglasses with

the purchase of reading material. It is however reasonable

to assume that the legislature adopted this provision to

protect members of the public from receiving eyeglasses with

lenses that would not correct their defects in vision. The

provision of two pairs of prescription glasses for the price

of one does not violate this policy.

Since we have concluded that "buy-one, get-one-free"

sales do not violate article 4552-5.06, V.T.C.S., we need

not answer your other questions, which are contingent on a

contrary determination.

SUMMARY

The Texas Optometry Act does not prohibit

a dispensing optician or an ophthalmic dis-

penser from giving a second free pair of

prescription spectacles, eyeglasses, or con-

tact lenses to a person who purchases a first

pair. Article 4552-5.06, V.T.C.S., which

prohibits any person from giving spectacles

or eyeglasses as an inducement to sell "any

book, paper, magazine, or any work of litera-

ture or art, or any item of merchandise,"

does not prohibit "buy-one, get-one-free"

sales of prescription glasses by dispensing

opticians or ophthalmic dispensers.

JIM MATTOX

Attorney General of Texas

WARY KELLER

First Assistant Attorney General

LOU MCCREARY

Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Susan L. Garrison

Assistant Attorney General

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