Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
October 25. 1985
JIM MAlTOX
Attorney General
Supreme Ccurt Building Robert Bernstein, K.D., P.A.C.P. Opinion No. m-369
P. 0. BOX :254a Commissioner
Austin. TX. 78711~ 2548 Texas Department of Eealth Re: Whether a foreign corporatim
512,475-Z%:
1100 West 49th Stmet may receive a permit to prescribe
Telex 910474.1367
Telecopw512r475-0266 Austin, Texas 78i56 and administer synthetic narcotic
drugs to drug-dependent persons
714 Jackson. Suite 700 Dear Dr. Bernstein:
Dallas, TX 75202-4506
21417428944
You have requested an interpretation of article &476-11,
V.T.C.S., which ml&es to the regulation of the use of spathetic
4824 Alberta Ave.. Suite 160 narcotic drugs 111 the treatment of drug-dependent persons.
El Paso. TX. 79905.2793 Specifically, you tnquire whether a foreign corporation that holds a
91515333484 certificate of auttloritpfrom the Texas Secretary of State, having met
all other requirements for permitting, may receive a permit to
loo, Texas.suite 700 prescribe and administer synthetic narcotic drugs to drug-dependerr
Ho”Stor~-x 77002.3111 persons. We conclrde t!m.tthe statute does not authorize the issuance
7131223~5662 of such a permit to a corporation that is incorporated in another
state. We assume t.k.at your question goes only to matters of statutor;
construction, and c:onsequently,we address no constitutional issue.
806 Broacway. Suite 312
Lubbock. 7. 79401.3479
806/747-52% Section 4 of ;trticle4476-11, which was enacted in 1971 by House
Bill No. 139 of the:Sixty-second Legislature, states that:
4309 N. Te*:n. Suite B
McAllen. 7. 78501-1685
Any physician licensed by the Texas State Board
512/682-r5L;
of Medic&l.Examiners or any institution, public or
private, organized and operated under the laws of
this statae for thepurpose of providing health
200 Main Plaza. Suite 4W services may apply to the department on form
San Antonm, TX. 78205.2797
approved by the department for a permit to pre-
51a225-4191
scribe and administer synthetic narcotic drugs to
drug-dependent persons. The department shall
issue a per&t to applicants qualified according
to its rules, regulations. and standards.
(Emphasis;added).
Rouse Bill No. 139 'was patterned after a similar bill enacted by the
Oregon Legislature in 1969 but was rewritten by a house committee
substitute. The lmquage of section 4, which originated in the house
committee substituix. remains unchanged today, even though section ;
was reenacted in 1085 by the Sixty-ninth Legislature to authorize the
p. 1692
Dr. Robert Bernstein - Page 2 (X4-369)
collection of fees for the rtdministrationof the act. Acts 1985, 69th
Leg., ch. 931. art. 7, 02, at:6797-98.
The legislature authc'rized the issuance of a permit to an
institution that is organized under the laws of this state and
operated under the laws of this state. Those conditions should be
construed conjunctively ratber than disjunctively unless a contrary
construction is plainly 1nd:tcated.
In Board of Insurance Conrmissioners of Texas v. Guardian Life
Insurance Co. of Texas, 180-S.W.Zd 906, at 908 (Tex. 1944). the Texas
Supreme.Court quoted with approval the following rule:
Ordinarily the words 'and' and 'or,' are in no
sense 1nterchange;~bleterms. but, on the contrary,
are used in the s'zructureof language for purposes
entirely variant, the former being strictly of a
conjunctive, the latter, of a disjunctive, nature.
Nevertheless. in '>:cder
to effectuate the intention
of the parties to an instrument, a testator, or a
legislature, as t'lecase may be, the word 'and' is
sometimes construed to mean 'or.' This COtlStr"C-
tion, however. is never resorted to except for
strong reasons aud the words should never be so
construed unless the context favors the con-
version; as where it must be done in order to
effectuate the manifest intention of the user; and
where not to do so would render the meaning
ambig"o"s, or rer,u.ltin an absurdity; or would be
tantamount to a refusal to correct a mistake.
See also White v. State, l!l;'
S.W.2d 389, 393 (Tex. Civ. App. - Austin
1946, writ ref'd n.r.e.).
We find no indication that the legislature does not intend that
an institution be in ccmpliance with both conditions. To the
contrary, it is our opinion that the language used by the legislature
plainly indicates an intention to require an institution to be both
organized under the laws o:ithis state and operated under the laws of
this state in order to b,r eligible for a permit to prescribe and
administer synthetic narcotic drugs under this act.
An incorporated institution is organized under the laws
authorizing its incorporatjan. A foreign corporation is a corporation
"organized under laws other than the laws of this state." Tex. Bus.
Corp. Act, at. 1.02(A)(2); art. 8.01(A). Even if a corporation holds
a certificate of authority from the secretary of state and operates in
this state in compliance wLth the Medical Practice Act (V.T.C.S. art.
4495b). and under the other laws of this state, the corporation
p. 1693
Dr. Robert Bernstein - Page 3 (m-369)
complies with only one of the statutory requirements. Since a foreign
corporation is not organized under the laws of this state, it cannot
meet the second statutory cmditioa.
We do not address issuus in this opinion that are not included in
your question, such as the practice of medicine in Texas by corpora-
tions or the exercise of the police ocwer of the state to deny a
permit to a foreign corporation, But see Garcia V. Texas State B&d
of Medical Examiners, 384 '!. Supp. 434 (W.D. Tex. 1974), aff'd, 421
U.S. 995 (1975) (upholding; Texas statutes that prohibited lay-
controlled corporate practiw of medicine BS a reasonable exercise of
the police power of the state); Thompson V. Texas State Board of
Medical Examiners, 570 S.W.Zd 123 (Tex. Civ. App. - Tyler 1978, writ
ref'd n.r.e.) (power of stc.teto regulate practice of medicine under
state's police power); Atwrney General Opinion O-5116 (1943) (state
may refuse license to sell beer or wine to foreign corporation in
exercise of its police pove:r:l.
SUMMARY
Section 4 of article 4476-11, V.T.C.S.. does
not authorize a i'oreigncorporation to receive a
permit to prescribe and administer synthetic
narcotic drugs to drug-dependent persons.
JIF MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genseral
DAVID R. RICBARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 1694
1
Dr. Robert Bernstein - Page s& (34-369)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood
p. 1695