Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 19,2004
Mr. Chris Kloeris Opinion No: GA-0236
Executive Director
Texas Optometry Board Re: Whether the Board of Nurse Examiners may
333 Guadalupe Street, Suite 2-420 permit registered nurses to administer a dangerous
Austin, Texas 78701-3942 drug on the order of a therapeutic optometrist
(RQ-018%GA)
Dear Mr. Kloeris:
On behalf ofthe Texas Optometry Board you ask whether the Board ofNurse Examiners may
permit registered nurses to administer a dangerous drug on the order of a therapeutic optometrist.’
Occupations Code chapter 351 governs the licensing of therapeutic optometrists. See TEX.
OCC. CODE ANN. ch. 3.51 (Vernon 2004). Therapeutic optometrists are required to complete courses
in pharmacology and pass a licensing examination in addition to the basic requirements for becoming
an optometrist. See id. 5 351.252. After meeting these additional requirements, therapeutic
optometrists are permitted to prescribe certain dangerous drugs in order to treat particular ocular
diseases. See id. $3 351.160, ,358, and .3581.
The Texas Dangerous Drug Act, Health and Safety Code chapter 483, includes physicians,
dentists, podiatrists, veterinarians, and optometrists in the definition of “practitioner,” which is a
person permitted to prescribe and administer dangerous drugs. See TEX. HEALTH & SAFETY CODE
ANN. $ 483.001(12)(A) (Vernon 2003). Also included in the definition of “practitioner” are
advanced practice nurses (“APNs”) and physician assistants (“PAS”) to whom a physician has
delegated the authority to carry out or sign prescription drug orders. See id. § 483,001(12)(D); see
also TEX. OCC. CODE ANN. $5 157.0511, .053-.0542 (Vernon 2004) (outlining the manner and
circumstances in which a physician may delegate to APNs and PAS the authority to perform certain
medical acts). Ofthese practitioners, Occupations Code chapter 301, the Nursing Practice Act (the
“Act”), expressly grants authority to physicians, dentists, and podiatrists to give orders to registered
nurses to administer medication or treatments. See TEX. Oct. CODE ANN. 3 301.002(2)(C) (Vernon
2004). The Board ofNurse Examiners, the agency charged with implementing the Act, reads section
‘See Letter from Chris Kloeris, Executive Director, Texas Optomehy Board, to Honorable Greg Abbott, Texas
Attorney General (Feb. 23,2004) (on tile with the Opinion Committee, also available ar http://www.oag.state.tx.us)
[hereinafter Request Letter].
Mr. Chris Kloeris - Page 2 (GA-0236)
301.002(2)(C) to cover registered muses acting on the orders of APNs and PAS because physicians
are statutorily authorized to use APNs and PAS, by way of duty delegation, to act vicariously.’
On behalf of a therapeutic optometrist who employed a registered nurse, you sent a letter to
the Board of Nurse Examiners and asked whether a muse is authorized to administer a dangerous
drug on the order of a therapeutic optometrist. See Request Letter, supra note 1, at 1. The Board
of Nurse Examiners responded:
Registered Nurses are not authorized to act on orders issued by a
therapeutic optometrist. Sec. 301.002. Definitions of the Nursing
Practice Act states in part that professional nursing involves the
administration of a medication or treatment as ordered by a physician,
podiatrist, or dentist?
You argue that the Board ofNurse Examiners has interpreted section 301.002 ofthe Act to authorize
registered nurses to act on the orders of APNs and PAS, despite the plain language ofthe section, and
that you can find “no distinction in the ability to prescribe dangerous drugs of the above health
practitioners versus therapeutic optometrists.” Id. Thus, you ask:
Do the Nursing Practice Act, the Optometry Act, and the Health and
Safety Code give the Board of Nurse Examiners authority to allow
registered muses to administer a dangerous drug on the order of a
therapeutic optometrist?
Id.
In construing a statute we are charged with determining and giving effect to the legislature’s
intent. See City of Sun Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is
accomplished by establishing the “plain and common meaning of the statute’s words.” Id.
Generally, if a statute’s meaning is unambiguous, we interpret the statute according to its plain
meaning. Id. However, we determine legislative intent from the entire act and not just isolated
portions. Id..; see also TEX. GOV’T CODE ANN. $311.023 (Vernon 1998) (regardless of whether a
statute is considered ambiguous, a court may consider, inter ah, the circumstances under which the
statute was enacted and the legislative history). With these rules guiding our discussion, we now
turn to your question.
*&e Board ofNurse Examiners for the State of Texas, Position Statements 15.1 (Jan. 1994) (detemining that
nurses may act on orders from PAS), 15.18 (Jan. 2001) (determining that nurses may act on orders from APNs)
attachment to Request Letter, also avaiiableathttp://www.bne.state.tx.us; see also TEX. Oct. CODE ANN. $5 157.0511,
,053,..0542 (Vernon 2004).
‘Letter from Sandra Owen, MN, RN, Director ofProfessional Nursing, Board ofNurse Examiners for the State
of Texas, to Chris Kloeris, Executive Director, Texas optometry Board (Jan. 28,2003) (attachment to Request Letter).
Mr. Chris Kloeris - Page 3 (GA-0236)
Section 301.002 of the Act reads in relevant part: “‘Professional nursing’ involves . . . the
administration of a medication or treatment as ordered by aphysiciqpodiatrist, or dentist.” TEX.
Oct. CODE ANN. 5 301.002(2)(C) (V emon 2004) (emphasis added). The language of the statute is
unambiguous and by its terms only authorizes a physician, podiatist, or dentist to give orders to
muses to administer medication or treatments. Nevertheless, in your brief accompanying the request
letter, you suggest that this statute’s unambiguous language belies a contrary legislative intent!
You first note that since 1989 the legislature has amended the relevant sections of the
Occupations and Health and Safety Codes to include “three additional types ofhealth professionals
in the group ofpersons authorized to prescribe and administer drugs to humans.” TOB Brief, supra
note 4, at 4. In 1991, these amendments gave therapeutic optometrists the authority to prescribe and
administerdangerousdrugs. SeeActofMay21,1991,72dLeg.,R.S.,ch.588,§ 12,199lTex.Gen.
Laws 2106, 2111 (expanding the optometric profession to include therapeutic optometrists, and
amending the Health and Safety Code to add therapeutic optometrists to the definition of
“practitioner”). Yet, you say, Nursing Practice Act section 301.002(2)(C) was last amended prior
to 1991 to read as it does now. See TOB Brief, supra note 4, at 3-4. At the time of the 1991
amendment, physicians, dentists, and podiatrists constituted the onlyheahhprofessionals authorized
to prescribe and administer dangerous drugs. See id. Because, you continue, it took many years
from the time podiatrists were made practitioners for the legislature to correct an oversight to include
podiatrists in the language of 301.002(2)(C), you conclude that “the history of amending
5 301.002(2)(C) at least strongly suggests that the legislature has simply not been able to keep up-to-
date with all the interrelated laws in this area.” Id. at 5 n.19.
We are unpersuaded by this argument. Even if the legislature had never revisited section
301.002, “a statute is not repealed by nonuse, but remains in full force and effect until it is amended
or repealed by the legislature, or impliedly repealed by an irreconcilable statute.” Interstate
Forwarding Co. v. Vineyard, 3 S.W.2d 941, 957 (Tex. Civ. App.-Dallas, 1928), rev’d on other
grounds, 49 S.W.2d 403 (Tex. 1932); accord Tex. Att’y. Gen. Op. No. JC-0136 (1999) at 3.
However, section 301.002 is not a forgotten provision that conflicts with a more evolved statutory
scheme. Discounting its codification in the Occupations Code, section 301.002 has been revisited
by the legislature multiple times since therapeutic optometrists were authorized to prescribe
dangerous drugs. See, e.g., Act of May 26, 1993,73d Leg., ch. 840, 5 12, 1993 Tex. Gen. Laws
3303,~3310; Act of May 29,1995,74th Leg., ch. 965,s 54,1995 Tex. Gen Laws 4789,4823; Act
ofApril 26,2001,77th Leg., ch. 112,s 4,200l Tex. Gen. Laws 219,221-22; Act ofMay30,2003,
78th Leg., ch. 553, 5 1.002, 2003 Tex. Gen. Laws 1874, 1874. And within section 301.002’s
legislative history subsequent to the 1991 addition oftherapeutic optometrists, subsection (2)(C) has
been amended specifically. See Act of May 29,1995,1995 Tex. Gen. Laws at 4823 (amending Act
ofMay26,1993, 1993 Tex. Gen. Laws at 3310, former article 4518, section 5 ofthe Revised Civil
Statutes, the predecessor to section 301.002, to replace “Podiatry” with “Podiatric.“). At the
minimum, this history is illustrative of a legislature actively revising this area of the law.
‘See Brief from Chris Kloeris, Executive Director, Texas Optometry Board (Feb. 23, 2004) (attachment to
Request Letter) [hereinafter TOB Brief-j.
Mr. Chris Kloeris - Page 4 (GA-0236)
You next contend that to rely on the plain language of section 301.002(2)(C) would frustrate
the legislature’s intent to give therapeutic optometrists the same overall prescriptive authority as that
exercised by physicians, podiatrists, and dentists. See TOB Brief, supra note 4, at 5. To reach this
conclusion, we would have to agree first that the authority to give orders to nurses to administer
medication and treatments is necessarily included within one’s prescriptive authority. We do not
agree with your premise. As the Texas Nurses Association observed, section 301.002(2)(C) covers
two distinct situations: administering medication and administering treatments (medicinal and
otherwise).’ These are two very separate powers, and were we to reach your conclusion, we would
be forced by this construction to recognize veterinarians also as having the authority found in section
301.002. Veterinarians are authorized bysection483.001 oftheHealth and SafetyCode toprescribe
and administer dangerous drugs. See TEX. HEALTH & SAFETY CODE ANN. 5 483,001(12)(A)
(Vernon 2003). Clearly, veterinarians are not trained to work in conjunction with registered nurses
and so have not been extended the powers of section 301.002(2)(C). The statute requires us to reach
the same result with respect to therapeutic optometrists.
Finally, the legislature has not established a statutory scheme for physicians to delegate duties
to therapeutic optometrists. Physicians cannot use therapeutic optometrists vicariously like
physicians can use APNs and PAS, and as a consequence, the Board ofNurse Examiners cannot read
section 301.002 to include therapeutic optometrists.
The legal context of section 301.002(2)(C) does not alter the plain meaning of its text. The
plain language of section 301.002(2)(C) only authorizes physicians, podiatrists, and dentists to give
registered nurses orders to administer medication and treatments. Therefore, were the Board of
Nurse Examiners to allow therapeutic optometrists to give registered nurses such orders, it would
be reaching beyond the scope of its powers.
‘See Brief from James Willmann, General Counsel and Director Governmental Affairs, Texas Nurses
Association, at 5 (Apr. 27,2004) (on file with the Opinion Committee).
Mr. Chris Kloeris - Page 5 (GA-0236)
SUMMARY
The Board of Nurse Examiners may not permit registered
nurses to administer a dangerous drug on the order of a therapeutic
optometrist.
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee