By Dr. Walter R. Rhodes
Published by Texas Chiropractic Association, 303 International Life Building, Austin, TX 78701.As authorized by the various Boards of Directors of the Texas Chiropractic Association from 1958 to 1977, the idea first being presented to the board by E. L. Bauknight in 1958.
These excerpts are presented for educational purposes.
Ever since the appointment of Judge E. B. Simmons as defense counsel for the chiropractors in 1938 the medical profession had been frustrated and defeated continuously in the courts.
The public relations harassment, however, continued at every opportunity and was more or less constant. Derogatory articles about chiropractic appeared in local newspapers, national magazines and every other source, all following the weary but familiar theme of hatred “in the interest of the public health."
The campaign of organized medicine to discredit chiropractic was coordinated nationally through the American Medical Association and the Texas Medical Association dutifully followed through.
But they were losing the public relations battle, too, although there were many days when the besieged chiropractors had occasion to wonder, especially those working for acceptance when the legislature convened, because all the harshness and venom then was focused squarely on them. It was the new front line.
Back in 1923 when Dr. Charles Lemly of Waco introduced the second chiropractic licensing bill he had one favorable vote committed in the Senate; and the governor was Pat Neff, the man who had helped defend Dr. S. T. McMurrain in his Hillsboro trial. He was considered to be friendly but it was hardly necessary for him to commit himself since the probability of it reaching his desk for signature was remote to say the least.
By 1933 the chiropractors, with tongue in cheek, said they had tripled their strength, because they had three senators committed to a favorable vote when, and if, the bill ever got out of the public health committee, which usually had it bottled up.
In the 1940s W. W. (Red) Roark, the state representative from Temple, introduced HB #34, which didn’t muster enough votes to pass, but it did get widespread support in both house and senate. Bills were generally submitted with each session of the legislature as deemed possible and the process was continuously stoked and fueled.
Representative Sydney Latham of Longview, for example, at the urgings of Drs. H. H. Kennedy and Joe Busby, was one of the men who introduced a chiropractic bill into the house. It failed to win passage, which fate was expected, but Latham went on to become Secretary of State under Governor Coke Stevenson and was in that position when the 1943 chiropractic licensing bill was passed. Both Latham and Stevenson are warmly remembered in the hearts of chiropractors as staunch friends of the profession when times were tough.
Emmett L. Bauknight had been entrenched as executive secretary of the Texas State Chiropractic Association since 1937 and now his influence was beginning to have telling effects. 1943 looked like it might be a good year. Dr. Earnest Cheney of Jasper, Dr. Roy LaMond of Austin, Dr. John Hilty, Dr. Walter Fischer, Dr. H. H. Kennedy and others began to gather their forces.
As the law was conceived and submitted by the combined Texas State Chiropractic Association and Texas Chiropractic Research Society, the two ever present chiropractic groups, it was not controversial. But the Texas Medical Association persuaded the Senate to attach crippling amendments which set impossible standards for the colleges, removed the “grandfather clause” which meant even the doctors who had practice for 30 years would be treated the same as students, and it added other clauses designed to cripple the chiropractors in years to come. Doctors from all over the state were asked to come to Austin and personally ask their Senators and Representatives for support in their fight for the bill and against the crippling amendments.
Dr. R. S. Florence D. M. M. Mihovil, Dr. George Grupe, Dr. Charles Lemly, Dr. Hugh Warren, Dr. George Fowler, Dr. Douglas Ray, Dr. F. L. Charlton, Dr. Bob Cleere, Dr. Jack Thornton and others responded to the call and did whatever they could to insure passage of the bill. Dr. Thomas J. Lamar, later to win the Keeler Plaque, traveled far and wide raising funds for the battle. And win it they did, but any celebration was premature.
The bill passed and was signed into law by Governor Coke Stevenson; and he appointed the first board of chiropractic examiners who promptly set about making it an operational group.
The 1943 Board of Chiropractic Examiners were:
Dr. M. M. Mihovil, President
Dr. M. B. McCoy, Vice president
Dr. Paul Myers, Executive Secretary
Members:
Dr. Walter D. Arnold
Dr. C. C. Phillips
Dr. J. Stanley Wright
Dr. L. W. McClendon
Dr. B. S. Cox
Dr. Charles C. Lemly
But the 1943 law had a fatal defect in its constitutionality in that it did not restrict chiropractors to the spine, as dentists are to the mouth and optometrists to the eyes. And it had other very objectionable features such as a provision of punishment for anyone who would advise against immunizations, which, in the light of imperfect knowledge in the field of immunology, seemed unwise to accept. But the bulk of chiropractors felt it was better than no licensing act at all and determined to live with it.
It was Secretary of State Sydney Latham who foresaw the fate of the bill when he spoke to the chiropractors assembled shortly after its passage. At a huge gathering in the mezzanine floor of the Driskill Hotel, Latham gave his congratulations but warned, “as sure as you start your petty bickering you are on the way out.” It wasn’t long until he was proved a prophet.
The 1943 law was not even fully implemented until forces inside of chiropractic determined to defeat it. This movement, with the added vision of hindsight, was probably wise because the 1949 bill was to be superior in many ways but at the time the wisdom was seen only through much controversy and bitterness.
The Texas Chiropractic Research Society was the organization used to test the constitutionality of the new licensing act. It was funded by donations from concerned parties. Dr. Leonard K. Griffin of Ft. Worth was the president of the organization and it was he, Dr. L. George Grupe and Dr. B. J. Palmer along with the advice and counsel of the International Chiropractic Association who were the architects of the plan to defeat the new law. Dr. Willard Carver of Oklahoma City contributed $250 to the cause.
Dr. L. K. Griffin also reports that Dr. J. R. Drain of the Texas Chiropractic College was consulted as was Dr. H. B. Logan of the Logan Chiropractic College and they agreed with Carver and Palmer that the law would be impossible to live with and effectively close the state to future chiropractors.
The Palmer Chiropractic College was the only school which could meet the physical plant requirements of the law; Dr. Carver was probably one of a select few school officials who could meet the educational requirements for administrators or teachers. All points considered, no school would qualify nor could soon qualify to send new graduates into Texas.
A fee of $2,500.00 was paid to the law firm of Rogers, Spurlock and Love of Ft. Worth, and the test was on.
W. W. B. Halsted of Cleburne volunteered to be the test for the law and he was soon charged with practicing chiropractic without a license and placed under arrest by the Sheriff of Johnson County.
It was affirmed against him by Tommy Forbis, who was reimbursed $32.00 for time and expenses to testify, that on November 20, 1943, Dr. W. B. Halsted advised him and his son, Eddie Forbis, against immunization procedures and, on another count, was charged with holding himself out as a chiropractor and practicing chiropractic without getting a license from the State Board of Chiropractic Examiners which had been in operation more than 60 days.
The specification also listed other charges related to the above but the case hinged on these two. The law was soon found to be unconstitutional by the court of criminal appeals and died in 1944. The first board of examiners were disbanded and the money collected under the provisions of the licensing act went under the protection of Texas’ Treasurer, Jesse James. Emmett L. Bauknight later recovered the money on behalf to he chiropractors but only after filing a law suit for Texas State Chiropractic Association against the state.
In 1945 Dr. John Hilty, the president of the Texas State Chiropractic Association, asked Dr. Walter Fishcher of Temple to become chairman of the Chiropractic Public Health Committee and continue the work of seeking a licensing act that would stand the test of time.
In 1947-48 Dr. Walter Fischer traveled over much of Texas talking to every available legislator and those men who were considered serious contenders for the legislature. He went to their home offices, away from Austin, and took time to explain the needs of chiropractic; and to explain the effect the passage of the bill would have both pro and con. The legislators then had the opportunity to reason and study calmly under the best of circumstances. When the emotional pressures, the fiery lobbyists and the contrived urgency began in Austin, they already had a reasoned opinion which would not be easily shaken by the heat of the moment.
Texas has been extremely fortunate that most legislators really have a deep desire to do that which is right and good for the people they represent. Thus a proper explanation and the putting of right perspectives on the problems of the day are often all that is needed to carry a cause to success even if it has influential enemies.
Before the 1947 session, State Representative Lon Messer from Robstown advised Dr. Fischer to get a constitutional lawyer to draft the next bill so it would be satisfactory to both the chiropractic and legal professions. The association accordingly paid Everett Looney, an Austin Attorney, $1,000 to draft the bill. The definition of chiropractic (in Section I) gave him an unconquerable difficulty. He was never able to write it so the definition was confined to one part of the body which thereby kept it from being so generalized it wouldn’t conflict with the broader range of medicine. The revised bill was introduced into the 1947 session of the Texas State Legislature but failed to gain enough support to pass. Its constitutionality was a major issue.
At about this point in time Judge Richard Critz of Austin stepped down from the State Supreme Court bench after a 21 year career and he became the newest of E. L. Bauknight’s several law partners. Judge Critz was soon employed by the Texas State Chiropractic Association to write Section 1 of the chiropractic act in a constitutional manner.
After several weeks of consultation with attorneys and chiropractors, especially with his old friend Dr. R. S. Florence of Tyler, Judge Critz came up with the wording that became Section 1 and which was ultimately passed by the 1949 legislature. It was not to be put to a court test for its constitutionality in its first 25 years on the statute books. Finally in 1974, the Attorney General of the State of Texas, John Hill, had occasion to render a decision on its status and he declared it valid and constitutional. Chiropractors all over the state finally breathed easy – they thought it was alright, but there’s nothing like having passed the test.
But before Judge Critz’s labors could be crowned with success, even before it could be submitted to the legislature, it had to pass the most acid test of all: acceptance by the divergent factions in chiropractic. Only then would it be reasonably expected that the legislature would look upon it with favor.
The Texas Chiropractic Research Society, headed by Dr L. K. Griffin, met in Austin with Judge Critz who discussed the merits of the bill with Judge George Rinier, counsel for the International Chiropractic Association, R. D. Jones of the National Chiropractic Association, Judge E. B. Simmons and E. L. Bauknight of the Texas State Chiropractic Association.
Several interested doctors were present to hear the lawyers discuss the issues. Dr. Walter Fischer was there, and Dr. L. George Grupe, Dr. Devere E. Biser of Dallas and Dr. Roy LeMond of Austin were also among the spectators.
Judge Critz expressed the opinion, with the assent of the majority of the attorneys present, that no legislation for chiropractic could be obtained in Texas which would be constitutional unless it limited the practice, the examinations, the subjects, and its entire work to one specific part of the body and the mechanical correction of that part.
Judge Critz explained in detail that according to law a druggist could not advise a friend to take mineral oil for his constipation, or a barber, according to law, could not advise a certain hair preparation for dandruff. He admitted that both these practices are common but, according to law, such is specifically forbidden and their qualifications and examinations are so construed that the individual licensee is not trained to know whether such preparations would be beneficial for the conditions mentioned.
The same thing exists in the Optometry law and in the Dental law. If a dentist pulls your tooth to aid or cure rheumatism, he has violated the medical practice act as well as the dental act. If it should be written into the law that he be given permission to pull teeth in order to treat rheumatism, the law would be held unconstitutional.
Judge Critz made it plain that if the chiropractors saw fit to use the bill he had written for their legislation in Texas, he would back it up to prove it constitutional but, if any amendments were attached to his bill, he would wipe his hands of the whole matter because such a bill, to be constitutional, cannot be amended in one part without affecting other parts of the bill far remote from the amendment. This was very plain in the opinion of the Court of Criminal Appeals when the 1943 Texas Law was declared unconstitutional.
These attorneys conferred from 9 a.m. until 3 p.m. on the problem on the problem of Chiropractic legislation and the proposed chiropractic bill presented by Judge Critz.
The Judge explained the need of a Chiropractic Board of Examiners who would thoroughly understand the legal restrictions on the question of confining chiropractic examinations, policies, rules and regulations to conform with the adjustment of the human spine. A few changes were made in the bill such as to add “of the spine” where it might be construed as being of any other part or practice of the human body.
The TCRS legislative committee assured Dr. Fischer that they would support this bill provided it was not amended.
Dr. Fischer assured the attorneys that he felt the Texas State Chiropractic Association would go down the line with members of the TCRS for legal chiropractic legislation. The divergent factions were thus brought together by Judge Critz’s plain spookiness and the bill was prepared for introduction into the legislative process.
Representative Henry Lehman from Giddings agreed to introduce the 1949 bill in the House of Representatives but the Senate posed a problem for a sponsor. Dr. Fischer asked Dr. Joe Busby of Abilene to meet with him and Senator Pat Bullock in Colorado City. They asked for Senator Bullock’s recommendations, hoping he would carry the ball himself, but he cooperated by doing as he was asked and gave several recommendations. Exasperated, Dr. Fischer finally asked Senator Bullock if there was any reason why he couldn’t personally introduce the bill. The Senator replied, “No, and I’d love to do it."
In January, 1949, the fateful bill was introduced in good order by those two men in their respective legislative bodies. It quickly passed the House but in the Senate problems developed.
The chiropractic bill was going to pass and the medical interests could not stop it. But they were not about to stop their resistance. The Basic Science bills were not new and had been introduced in other states. It was now Texas’ turn.
A Basic Science Bill was introduced in the Senate by the medical doctors in the same session of the legislature and it was designed to destroy chiropractic by nullifying the effects of the licensing act about to pass into law. The early version was totally unacceptable to chiropractors, as one would suspect, since it was created to destroy them. A filibuster was quickly arranged by the chiropractors’ legislative friends as it came to the floor. Senator Fred (Red) Harris of Dallas (and others) spoke 33 straight hours to break the threat.
The paragraph now known as 16A of the Basic Science Act was one of several compromises by the medical doctors designed to break the filibuster but it was the first acceptable.
From the time 16A was accepted by the chiropractors then both the Basic Science Law and the 1949 chiropractic licensing act were favorably accepted within 3 to 5 minutes. Then it was back to the House of Representatives for concurrence, and finally, to the Governor’s desk for signature where previous labor had committed Beauford Jester’s approval.
So the journey which began formally in 1917 finally culminated in success some 32 years later. One background note will be of interest:
Allen Shivers was Lt. Governor at the time of the 1949 bill passage. He was well aware of its bitter opposition by the medical fraternity and he knew also that the osteopaths and the naturopaths had more than passing interest in its provision. Shivers foresaw the controversy which would prevail in the legislative halls if normal procedures were followed. He therefore took it upon himself to demand that the medical representatives, the osteopaths, the naturopaths and the chiropractors all meet together in a committee room to iron out their differences promising, “they certainly wouldn’t be ironed out on the senate floor."
A livable understanding – not without differences – was reached by the men involved. The solidification of understanding proved much more satisfactory than the feeling of embittered, hostile, unreasoning hatred and unthinking opposition which existed before.
The men remained opponents, that is true, but they at least had respect for each other as men after this time.
Governor Jester, after signing the bills into law, also selected the first board appointees to the chiropractic examining board but died before they officially took office. Allen Shivers then became governor and in respect to the memory of Governor Jester he appointed Jester’s selections without change. The 1949 Board of Chiropractic Examiners were: Dr. M B. McCoy, President; Dr. L. K. Griffin, Vice president; Dr. J. E. Busby, Secretary-treasurer; and Dr. D. E. Biser, Dr. W. H. Fischer, Dr. R. S. Florence, Dr. J. Glasin, Dr. L. G. Grupe and Dr. C. C. Phillips, members. Governor Shivers was not then considered to be as enthusiastic for the chiropractic cause as Jester had been but was respected as a fair man who didn’t bestow favors lightly, and he was later judged to be a faithful friend to the profession.
It is interesting to note that every governor of Texas from that time to the present (1978) has been considered very friendly to chiropractic and their requested legislative bills. Governors Price Daniel, John Connally, Preston Smith and Dolph Briscoe were all considered fair, firm, and friendly in their respective administrations as they each went on to become outstanding public servants.
Back in 1945-1946 the chiropractic profession had met in convention in Austin and the majority of doctors present (85%) favored inclusion of a provision requiring two years of college work before a chiropractic student could enroll in a chiropractic college. But a small, vocal minority insisted otherwise and the provision was deleted as a compromise – an act which probably made the Basic Science Law possible. The prevailing opinion is that had the two year college requirement been written into the 1949 bill, the Basic Science Act would have been soundly defeated.
Dr. H. H. Kennedy, chairman of the Chiropractic Public Health Committee at the time of passage of the 1949 law, emphasized the personal sacrifices made by Dr. Walter Fischer, who at the conclusion was so exhausted and physically depleted that he contracted polio and very nearly died. Eventually recovering, he still moves at a fast clip, but with a limp, the effect remaining of his illness.
Dr. Kennedy also goes on record commending Nell Fischer whom he calls a volunteer lobbyist of the first order. She tirelessly attended the social whirl in Austin where she cultivated many friends and is due much credit for the favorable reception the chiropractors slowly and ultimately gained..
When the licenses authorized by the 1949 law were first being issued the licenses of Dr. Harvey H Kennedy, Dr. R. S. Florence, and Dr. Walter Fischer were hastily signed so they could go directly to the courthouse where Dr. S. T. McMurrain was being sued for $10,000 in a malpractice case.
Judge E. B. Simmons, the defense attorney, wanted testimony from licensed chiropractors as expert witnesses and he got it before the ink was hardly dry. Dr. McMurrain won the case, incidentally, but is distinguished more by the fact that he provided the forum for the first testimony from licensed chiropractors as expert witnesses in Texas’ Courts.
