Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 17, 1981
MARK WHITE
Attorney General
Supreme Court Building Mr. Fred S. Brinkley, Jr. Opinion No.``+,$l0
P. 0. BOX 12548 Executive Director/Secretary
Austin, TX. 78711 Texas State Board of Pharmacy Re: Co"str"ctio" of House
5121475-2501 211 East 7th Street, Suite 1121 Bill No. 1628, the Texas
Telex 9101874-1367
Austin, Texas 78701 Pharmacy Act
Telecopier 51214750268
Dear Mr. Brinkley:
1807 Main St., Suite 1400
Dallas. TX. 75201 You have asked several questions concerning the interpretation of
214l7428944
the recently enacted article 4542a-1, V.T.C.S., Texas Pharmacy Act,
Acts 1981, Sixty-seventh Legislature, chapter 255, at 638.
4824 Alberta Ave.. Suite 160
El Paso, TX. 79905 We note, at the outset, that the act deals with two separate and
915/533-34S4 distinct licenses -- the license of the pharmacist and the license of
the pharmacy.
1220 Dallas Ave.. Suite 202
Houston. TX. 77002 A license to operate a pharmacy is'= restricted to licensed
713/8500888 pharmacists. Any individual or entity may apply for a license to
~operate a pharmacy; section 30 of the act simply requires that the
applicant for a license to operate a pharmacy furnish certain
SC6 Broadway, Suite 312
Lubbock. TX. 79401 information, including the pharmacist license number of each
W&747-5238 pharmacist employed by the pharmacy and the license number of the
pharmacist-in-charge. Sections 5(25) and (26). respectively, define
the terms "pharmacist" and "pharmacist-in-charge."
4309 N. Tenth, Suite 6
McAlle”, TX. 78501
512B82-4547 "Practice of pharmacy" is defined in section 5(29) to include
dispensing drugs and devices which require a prescription. Section
19(a) makes it unlawful for a person to dispense or distribute
2M) Main Plaza. Suite 400 prescription drugs unless he is a licensed pharmacist or is authorized
San Antonio, TX. 78205
51212254191
by the act to dispense or distribute prescription drugs.
The principal class authorized by the act to dispense drugs
An Equal Opportunity/ without being a licensed pharmacist is the "practitioner."
Affirmative Action Employa "Practitioner" is defined in section 5 as follows:
(30) "Practitioner" means a physician,
dentist, podiatrist, veterinarian, or other person
licensed or registered to distribute or dispense a
prescription drug or device in the course of
professional practice in this state or a person
licensed by another state in a health field in
p. 1397
Mr. Fred S. Brinkley, Jr. - Page 2 (Mw-410)
which, under Texas law, licensees in this state
-Y legally prescribe dangerous drugs.
'Practitioner' does not include a person licensed
under this Act. (Emphasis added).
Section 19(c) provides that a practitioner who supplies his own
patients with drugs is not engaged in the practice of pharmacy, ~0
long as such practitioner does not operate a pharmacy for the
retailing of prescription drugs.
Thus, it seems clear, at this point, that it is the intent of the
act to preclude all but licensed pharmacists from dispensing
prescription drugs, except that a practitioner may supply prescription
drugs to his own patients. When the practitioner supplies his own
patients he is not regarded as practicing pharmacy. However, if a
practitioner exceeds the very narrow exception provided him in the
act, and is. in fact, engaged in the practice of pharmacy, such
practitioner must be licensed as a pharmacist under this act.
You ask:
May a practitioner operate a licensed
pharmacy without employing a 'pharmacist or
pharmacist-in-charge of the pharmacy?
As previously stated, any entity may be licensed to operate a
pharmacy; however, no pharmacy may be operated unless there is a
pharmacist-in-charge of the operation who must be a licensed
pharmacist. Since section 30(b)(4) requires that the applicant for a
pharmacy license designate on the application the name and pharmacist
license number of the pharmacist-in-charge of the pharmacy, it
necessarily follows that, unless there is a pharmacist-in-charge, the
pharmacy may not legally operate. We therefore conclude that a
practitioner may not operate a pharmacy without employing and
designating a pharmacist-in-charge who is a licensed pharmacist.
You next ask:
May a practitioner dispense prescription drugs
from a licensed pharmacy pursuant to a lawful
prescription order of another practitioner?
The dispensing of prescription drugs is the practice of pharmacy,
unless such dispensing occurs under the very narrow exception allowed
a practitioner. A practitioner who dispenses or provides drugs to his
own patients is not, by definition, engaged in the practice of
pharmacy. However, if a practitioner lawfully prescribes drugs for
his patients and another practitioner fills this prescription, the
latter practitioner is engaging in the practice of pharmacy.
p. 1398
Mr. Fred S. Brinkley, Jr. - Page 3 (IS+410)
We conclude, therefore, that a practitioner may not fill a
prescription upon the order of another practitioner, since this would
constitute the practice of pharmacy.
You ask:
If a practitioner dispenses prescription drugs
from his office and charges a fee for the drugs
that is separate from the fee of medical services,
is he operating a pharmacy?
We answer in the affirmative. Section 5(28) defines "pharmacy"
as "a facility where the practice of pharmacy occurs." Section 5(29)
defines the "practice of pharmacy" as including the offering or
performing of "services and transactions necessary to operate a
pharmacy." Where a fee separate from the practitioner's fee for
medical services is charged for the dispensing of drugs, we believe
the practitioner engages in the "practice of pharmacy." Cf. Attorney
General Opinion V-1284 (1951) (physician could not dispens~edication
for which separate fee was charged prior to Pharmacy Act amendment
authorizing physician to operate a dispensary). Section 19(c)
provides that the statute "does not apply to a practitioner licensed
by the appropriate state board who supplies his patients with drugs in
a manner authorized by state or federal law and who does not operate a
pharmacy for the retailing of prescription drugs." A "retail" sale
has been defined as a sale directly to the ultimate consumer.
Websters Third International Dictionary at 1938; see White Motor
Company V. Littleton, 124 F2d 92 (5th Cir. 1941). We believe a
physician who charges a separate fee for dispensing drugs to a patient
for self-medication engages in the retailing of drugs. When a
physician retails drugs, he is engaging in the practice of pharmacy
within the statutory definition. A physician may, however, administer
drugs directly to his patients, see sections 5(2), 19(d), and we
believe he may make a separate charge for so doing without engaging in
the practice of pharmacy.
You next ask:
Is a written prescription for a dangerous
drug or controlled substance lawful if it does not
contain two signature lines for the physician to
sign as prescribed by section 40(g) of the Texas
Pharmacy Act?
Section 40 of the act takes effect January 1, 1982. Texas
Pharmacy Act, Acts 1981, 67th Leg., ch. 255, sec. 45(b), at 663. It
provides as follows:
p. 1399
Mr. Fred S. Brinkley, Jr. - Page 4 (MW-410)
(g) No written prescription may be dispensed
unless it is ordered on a form containing two
signature lines of equal prominence, side-by-side,
at the bottom of the form. Under either signature
line shall be printed clearly the words 'product
selectio" permitted,' and under the other
signature line shall be printed clearly the words
'dispense as written.' The practitioner shall
communicate dispensing instructions to the
pharmacist by signing on the appropriate line. If
the practitioner's signature does not clearly
indicate that the prescription must be dispensed
as written, generically equivalent drug selection
is permitted. No prescription form furnished by a
practitioner shall contain a preprinted order for
a drug product by brand name, generic name, or
manufacturer.
We see no room for interpretation of this section. There is no
ambinuitv. The mandate of the statute is clear and uneauivocal 'and
therefore. must be enforced according to its specific terms. Brasos
River Authority v. City of Graham, 354 S.W.2d 99 (Tex. 1961). It is
our conclusion, therefore, that after January 1. 1982. a written
prescription may not be dispensed unless it is-on a form as required
by the act. Since your remaining questions are predicated upon an
affirmative answer to the preceding question, they need not be
answered.
SUMMARY'
A "practitioner" may not practice pharmacy
unless he is also licensed as a pharmacist under
this act. No licensed pharmacy may legally
operate unless there is a pharmacist-in-charge who
is a licensed pharmacist. A practitioner who
undertakes to fill a prescription of another
practitioner engages in the practice of pharmacy,
which he may not do unless licensed as a
pharmacist. A practitioner who dispenses drugs to
his own patients from his office, and charges a
separate fee therefor, is engaged in the practice
of pharmacy, which he may not do unless licensed
as a pharmacist. After January 1, 1982, no
written prescription is lawful unless it is on a
form which meets the requirements of section 40(g)
of the act.
p. 1400
Mr. Fred S. Brinkley, Jr. - Page 5 (MW-410)
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICRARD E. GRAY III
Executive Assistant Attorney General
Prepared by Robert Gauss
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Robert Gauss
Rick Gilpin
Jim Moellinger
p. 1401