Untitled Texas Attorney General Opinion ( 1971 )

Honorable Don Kennard Opinion No. M-875
Chairman, Senate Committee
on Public Health Re: Constitutionality of
State Capitol House Bill 166, 62nd Leg.,
Austin, Texas Regular Session, relating
to the establishment of a
schedule of abused drugs
by rule and regulation of
the State Board of Pharmacy,
and the dispensing of
abused drugs.
Dear Senator Kennard:
You have requested the opinion of this office as to the
constitutionality of House Bill 166, which would amend
Article 726d. Vernon's Penal Code, the Texas Dangerous Drug
Act, by adding a new section which reads as follows:
"Section 16. (a) The said Board of Pharmacy
shall establish a schedule of abused drugs in
conformity with the schedules set out in the
Federal Comprehensive Drug Abuse Prevention
and Control Act. Any new drug or a drug con-
taining any narcotic which is being abused or
may be abused may be put on the schedule of
abused drugs by the State Board of Pharmacy.
Such determination shall be made only after
ten (10) days notice of hearing has been delivered
to the manufacturer of such drug or preparation
and a hearing pursuant to such notice has been
held. Appeals from the decision of the Board
shall be in the same manner as other appeals from
action of the Board as provided in Section 12
of Article 4542a, Vernon's Texas Civil Statutes.
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Honorable Don Kennard. Page 2 (M-875)
"(b) In making the determination regarding
the drug, the State Board of Pharmacy shall con-
sider the following:
"(1) the actual or relative potential for
abuse:
"(2) the scientific evidence of its phar-
macological effect, if known:
"(3) the state of current scientific
knowledge regarding the substance:
"(4) the history and current pattern of abuse;
"(5) the scope, duration, and significance
of abuse;
"(6) the risk to the public health: and
"(7) the potential of the substance to
produce psychic or physiological dependence
liability.
"(c) The Board shall not place on the schedule
of abused drugs any non-narcotic drug or preparation
which may, under the Federal Food, Drug, and Cosmetic
Act and the law of this State, be lawfully sold
over the counter without a prescription.
"(d) Any drug placed on the schedule of abused
drugs by the State Board of Pharmacy may not be
sold or dispensed except under the rules and regu-
lations provided by the Board or may not be dis-
pensed to an ultimate user without a written or
oral prescription, except when dispensed directly
by a practitioner to an ultimate user. Such pre-
scriptions may not be filled or refilled more
than six months after the date on which they were
issued or be refilled more than five times after
the date of the prescription unless renewed by
the practitioner."
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Honorable Don Kennard, Page 3 (M-875)
We are also advised that your Committee has adopted
Committee Amendments 1 and 2. Committee Amendment No. 1
adds the following sentence to Section 16(d) of House Bill
166:
"The rules and regulations promulgated here-
under shall in no manner be enforced by the
imposition of any penalties in Section 15 hereof:
any violation of such rules and regulations may
be enforced by the Board of Pharmacy against any
licensee of that Board in the same manner as
provided in Section 12 of Article 4542a. for revocation,
cancellation or suspension of licenses granted by such
Board, and against non-licenses by injunction as pro-
vided in Section 5 of Article 4542a."
Committee Amendment No. 2 strikes the phrase "non-narcotic"
from Sub-section (c) of Section 16, quoted supra.
We are also advised that your Committee has under con-
sideration a proposed Committee Amendment No. 3, which would
strike the phrase "or a drug containing any narcotic" from
Sub-section .(a) of Section 16, quoted supra.
You have requested that we consider the effect of the
aforementioned Committee Amendments and the proposed Com-
mittee Amendment in preparing this opinion.
Our initial comments will deal with the bill in its
present form, including Committee Amendments 1 and 2. It is
a general rule that the Legislature may not delegate its
legislative powers, except as expressly permitted in the
Constitution, and any attempt to commit those powers to
another agency is invalid. In re Mitchell, 109 Tex. 11, 177
S.W. 953 (lgd. However, the Legislature possesses many powers
that may be exercised by it either directly or through the
agency of another body. Spears vs. San AntOniO, 110 Tex.
618, 223 S.W. 166 (1920). If the Legislature has prescribed
sufficient standards to guide the discretion conferred, the
power is not legislative and a delegation is lawful. When
the Legislature cannot practically or efficiently perform
the functions required, it has the authority to designate
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Honorable Don Kennard, page 4 (M-875)
some agency to carry out the purposes of such legislation.
The general rule in determining the validity of a delegated
power is that the Legislature may declare the policy and fix
the primary standard. It may then confer on administrative
officials the power to fill in the details by prescribing
rules and regulations to promote the spirit of the legisla-
tion and to carry it into effect. Marqolin v. State, 205
S.W.Zd 775 (Ct.Crim.App., 1947).
With the foregoing principles in mind, it is our view
that House Bill 166 does not convey an unconstitutional
delegation of authority to the State Board of Pharmacy, in
that the criteria to be applied in placing drugs upon the
abused list are clearly set forth and are complete within
themselves.
In addition to your question as to the delegation of
legislative function, you asked in your opinion request
whether the provisions of the Act authorize the Board of
Pharmacy to amend the Penal Code by regulation. You also
asked whether the effect of House Bill 166 would be to
authorize the Board of Pharmacy to modify or repeal
Sections 8, 9 and 23 of Article 72533, Vernon's Penal Code.
After careful study, we are of the view that the provisions
of House Bill 166, as it is presently constituted, do not
authorize the State Board of Pharmacy to amend any portion
of the Penal Code by regulation, and, specifically, this
Bill does not delegate authority to the said Board to modify
or repeal any sections of Article 725b, V.P.C. This problem
apparently arises from the phrase "or a drug containing any
narcoticw, contained in the second sentence of the new Sec-
tion 16(a) of House Bill 166. All presently existing drugs
containing narcotics are either prohibited, required to be
dispensed on prescription, or expressly exempt under Section 8,
Article 725b. Therefore, if the Bill in its present form is
valid, the Board of Pharmacy would apparently be authorized
to impose an additional regulation upon the drugs that are
listed as exempt in the aforesaid Section 8.
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Honorable Don Kennard, page 5
After making the express findings required in order to
place a drug upon the abused list, the sanctions that may be
impos'ed by the State Board of Pharmacy are limited to administra-
tive action against the license of a pharmacist or injunctive
action against a non-licensee. While we recognize that the
problem is a serious one and that valid arguments exist on
both sides of the question, we take the view that the exempt
preparations listed in Section 8 of Article 725b have been
so exempted because of the unlikelihood of such preparations
being abused and their value as easily accessible household
remedies. Four of the required findings by the Board deal
with actual abuse being made of a particular drug. Thus, in
order to place a drug upon the abused list the State Board of
Pharmacy must make findings that are contrary to the reasons
for which the particular preparations were initially placed
on the exempt list. Further, the authority that could be
exerted by the State Board of Pharmacy under House Bill
166 could not have the effect of increasing or decreasing
the felony penalties that are imposed by Article 72533 in any
way. The sanctions that may be imposed by the State Board
of Pharmacy are administrative in nature and reflect a
different aspect in dealing with a complex problem.
You are'accordingly advised that it is the opinion of
the Attorney General that House Bill 166, as submitted to
this office, is constitutional.
The proposed Committee Amendment 3, deleting the phrase
"or a drug containing any narcotic",if adopted, would have
the effect of limiting the scope of House Bill 166 to new
drugs only, and would remove any present discussion as to the
possible effects of placing an exempt drug upon the abused
list. In view of our discussion above, it is our opinion
that Committee Amendment No. 3 is not essential to the con-
stitutionality of House Bill 166.
SUMMARY
House Bill 166, 62nd Legislature, Regular
Session, as amended by Committee Amendments 1
and 2, is constitutional.
Attorney General of Texas
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Hon. Don Kennard, page 6 (M-875)
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Pat Bailey
Larry Craddock
Wardlow Lane
Rex White, Jr.
MEADE F, GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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