Untitled Texas Attorney General Opinion ( 1951 )

Aunms I I. -.r*:s.\n
PHIOE XBASXEL
LIIIm.SvTV .‘w?X~Y_,~
September 13, 1951
Hon. Buster Brown Opinion No. V-1284
Secretary
Texas Board of Pharmacy Re: Whether physicians or
Temple, Texan hospital or clllllcdis-
pensarlea may dispense
medications for a sepa-
rate fee without a per-
mit and without being
or retaining a licensed
pear Sir: pharmaciet.
You have requested our opinion on the fol-
lowing Questions pertaMng to the Texas Pharmacy
Act (Art. 4542a, V.C.S.), aa amended by Seaate Bill
268, Acts 52nd Leg., R.S. 1951, ch. 469, p. 824:
#l. May a physician dispense medi-
cation for which a separate fee from hIa
rofeaelonal services is charged and not
En included under the licensing section
of the law?
'2. Can the dlepeneary of a hospital
or clinic furnish medication at a aepa-
rate fee for persona not patients without
hiring a pharmacist and obtaining a per-
mit?
-3. Under terms of the fourth para-
graph of Article 7588. Vernon!8 Penal
Code, 1s not the dispensing of drugs
limited to a licensed pharmaclat whether
the dispensary la a retail drug store or
a hospital or clinic dispensary?"
Section 8 of Ari;Icl.e
4542a a8 amended by
Senate Bill 268, sunra, provides:
#It shall be ``l:twl~ul
for sny per-
son who 18 not a rcglstered pharmacist
under the provlslon::of thla Act to com-
pound, mix. manufacture, combine, pre-
pare, label. sell, or dietribute at re-
Hon. Buster Brown, page 2 (V-1284)
tail or wholesale any drugs or medicines,
except In original packages. Provided
that all persons now registered as phar-
macists in this State shall have all
rights granted to pharmacistsunder this
Act: provided, however, that nothlrgln
this Act shsll apply to or interfere
with licensed practitionersof medicine,
dentlstry or chiropody,who ie duly reg-
istered as such by his respective State
Board of Examiners of this State and no
shall be construeh~to restrain a bona
fide hospital or clinic from operating
a dispensary or apothecary shop In order
to provide services to its patients.
Provided further, that nothing contained
in this Act shall be construed to pre-
vent the personal admfnistratlonof drugs
and medicines carpied by any physician,
surgeon, dentist, chiropodist or veter-
inarian licensed by his respective Board
of Examiners of this State, in order to
supply the needs of his patients: nor to
prevent the sale by peraone, firms, joint
stock companies, partnershipsor corpora-
tions, other than registered pharmaclete,
of patent or proprietarymedicines, or
remedies and medicaznents generally in
use and which are harmless lf used ac-
cording to instructionsas contained
upon the printed label: and insecticides
and fungicides and chemlcals ueeQ in the
arte, when properly labeled: nor lneecti-
cldes or fungicides that are mixed or
compoundedfor purely agriculturalpur-
poeee.” (Underscoringsupplied.)
Prior to the above amendment, a physician
could not operate a retail drug store or dispense
medicationfor any person except his own patients
unless he was a registered pharmacisthimself or
had one continuallyemployed therein. However, the
underscoredprovlslon of the Act as amended clearly
authorizesa physician to dispense medication for
Hon. Buster Brown, page 3 (V-1284)
persona other thanhla patients. Since Section 8
of the Act provides that no provisions of the Act
shall be construed to restrain physicians from
operating a dispensary, prescriptionlaboratory,
or apothecary shop, it is our opinion that a phgsl-
clan cannot be required to obtain a pharmacist's
license in order to dispense medicationsfor which
a fee separate,fromhis professionalservices Ia
charged. Any other constructionwould be contrary
to the plain provisions of Section 8.
Sections 17 and 19. Article 4542a, V.C.S.,
as amended,'providet
'Section 17. Every pereon. firm,
joint stock company, partnership or
corporationdesiring to operate a re-
tall pharmacy, drug store, dispensary,
or apothecary shop in thla State, as
the same is defined herein; and every
manufacturer of drugs and msdlclnee,
as defined herein, after the passage
of this Act, shall procure from the
State Board of Pharmacy a permit for
each store or factory to be operated
by making an application to the Board,,
upon a form to be furnished by the
Board, setting forth under oath owner-
ship and location, and the name and
certificatenumber of \thepharmficlst
registered in this State who is to be
continuallyemployed by the drug store
or pharmacy, or the pharmaceutical
chemist or chemist qualified by acl-
entlflc training, who Ia to be employ-
ed by the factolyor manufacturer;pro-
vided that the Boara~may in lta dia-
cretlon refuse to lseue such permit
to such applicant unless furnished
with satisfactoryproof that such ap-
plicant 16 engaged in the business of
conducting a pharmacy, drug store,
dldpenaary, apothecary ehop or factory
for the purpose of manufacturingdrugs.
*Provided further, that at any
time after the laauance of a permit by
the State Board of PhamPacy to such
applicant, the Board may revoke,suepend
Hon. Buster Brown, page 4 (V-1284)
or cancel the permit when satisfactory
proof has been preeented to the Board
that said permit holder 18 not conduct-
ing a bona fide pharmacy, drug store,
dispensary,apothecary shop or preecrlp-
tlon laboratory,and any inspector,mem-
belr,or official of the Board la hereby
empowered to take charge of such permit
pending final hearing before the Board,
as to the revocation of same. The permit
provided for herein shall be lasued an-
nually by the Board upon receipt of pop-
``~g;~yg,B,``yg z&yy;,
be displayed conspicuouslyat all times
in the pharmacy, drug store, dispensary,
apothecary shop OT factory to which it
ia issued.
“All such permits shall expire on
May 31at of each year and must be re-
newed on or before June 1st of each
year.
-Very pemon, firm, joint stock
company, partnerahlp, corporationor
manufacturerdeslHng to open a new
pharmacy, drug &ore, dispensary,apoth-
ecary shop, or factoryahall procure the
permit above mentioned before beginning
its operation as such; and the same
discretionarypowers may be used by the
Board ln passing u on such applications;
not more than one P1) etore or factory
may be operated under one (1) permit.
“In case of a change in pereonnel
of registered pharmaclete,the Board
shall be notified of such change wlthln
tea (10) days ; provided the same pharma-
cl&i’s name shall not appeal?on more
than oae (1) permit.
‘Provided however, that no pro-
olslon of this Act shall be construed
to apply to any hospital or cllnlc
malntalnlng‘3r operating a dispensary,
apothecary shop or preecrlptlon lab-
oratory for the care of its patients
Hon. Buster Brown, page 5 (V-1284)
as long as a licensed pharmacist Is con-
tinually employed to compound said pre-
scriptlona.
“section lg. A P~==cY, drug
atore, dlapeneary,apothecary shop, or
preecrlptlon laboratory,as used in
this Act, is any atore or place where
drugs or msdlclnee are sold or furnished
In any manner at retail or for a fee to
the consumer wherein a registeredphar-
macist is employed.
“Provided, however, that no pro-
vision of thla Act shall be construed
to apply to any hospital or clinic
maintaining or operatinga dlapeaaary,
apothecary ahop or prescriptionlab-
oratory for the care of lta patleats
aa long ae a licensed pharmacist is
continuallyeqloyed to compound said
prei3criptloaa.
There is nothiqln the Act which exempta
phyalclansfrom the provlalons of Section 17, which
requires every pereon who operates a drug store to
secure a permit f’rcun
the State Board of Pharmacy.
Therefore, it Is our opinion that a physician may
not dispense medlcaton fur which a fee separate
from his’professional services la charged without
first obtaining a permit.
Although Section 8 of the Act provia&
that.*no,provlslon of the Act shall be construed
to restrain a boaa ride hospital or clinic from
operating a aispeaeary or apothecary shop in order
to provide services to its patlenta,Y both Sections
17 and 19 provide that a registered pharmacist
must be continuallyemp1oye.Q.to compound the pre-
ecrlptiona.,
In view of the foregoing, It la our opln-
ion that the dispensary of a hospital or clinic
muet continuallyemploy a pkirmaclat to Oomp0~a
the preecrlptloneand may not mnleh medication
to persqps other than patients for a separate fee
without obtaining a permit.
21 ‘of the Pharmacy Act, codified
Sec.tlaol
ae Article 758a, V.P.C., was not amended by Senate
Bill 268, eupra. Article 758a, as amended la 1943,
provides in part:
354 Hon. Buster Brown, page 6 (v-1284)
'Any peraon not being licensed aa~
a pharmacletwho shall compound,mix.,
blend, dispense, prepare or sell at re-
tail any drug6 medicines poisons or
pharmaceuticalpreparationsupon a
physlclan'e prescription.or otherwise'
and whoever being the man&g&r or own-
er of the drug store, pharmacy or fac-
tory 01 other place of buslnesa Shall
manufacture,or permit anyone not ll-
tensed as a pharmaclet to compound,mix,
blend, dispense any drugs, medicinea,
poisons or pharmaceuticalpreparations,
on phyelclan'sprescription,contrary
to any of the pro~lsio~ of this Act,
ahall be subject to the penalties of
thle Act."
ObviouslyArticle &42a,V.C.S., ae amended
and Article 7!j8a,V.P.C., are now in conflict lneo-
far aa they apply to phyalclana. In Po
e&$2;;:. 615, 51 S-W. 26 680,
'As to tb question whether the
act of 1931 repeals the act of 1930,
we are of the oplnlonthatltdoes.
In tbls connectloa It will be noted
that the act of 1931 ie a later aot,
and, In 80 far aa prescribing the
terms of office ia coacerned, it ab-
solutely conflictswith the 1930 act.
The former act fixes the term of of-
fice at four yeare, while the latter
act fixes such term at two years.
The act of 1931 does not mention that
of 1930 but in 80 far a8 the term of
office is concerned, the two acts
are abaolutely antagonistic to each
other. It follows that the latter
act repeals the former by lmpllca-
tion.*
Also see Parehall Q. State, 62 TOX. 0ri.m.
177, 138 S.W. 759 n911) Robertson Q. State, 70
Tex. Crlm. 307, 159 S.W.;7-] Towneeaa v.
Terrell, 118 Tex. 463, 16 S.W.2d 10:3=9J1 %ate
v. ou&western Qas 8 Electric Oompan& 145 Ter
Att'y Gen. Ops. v-990
., . .
33.55
Eon. Buster BWn,.'page 7 (V-1284)
Article &542a, V.C.S., as amended, having
been passed subsequent to Article 758a, V.P.C.,
vi11 control. Therefore, it Is our opinion that
under the terms of SenateBIll 268, supra, licensed
practltlonersof mecllcine,dentistry, or chlropoily,
are exempt from the provision of Article '@a
vhich states that any person not licensed as a
pharmacistwho doea any of the enumerated acts
shall be subject to a penalty.
A physician may dispense medication
for which a separate fee from his pro-
fesslonal services Is charged without
obtaining a license to practice phar-
macy, but he may not do SO without ob-
taining a permit as required by Section
17 of Artlole 4542a, V.C.S.
The aiapeneary of a hospital or
clinic must continuallyemploy a phar-
macist to 00mp0una prescriptionsana
may not furnish medication for a sepa-
rate ree to persons ottir than patients
vlthout obtaining a permit.
Senate Bill 268, Acts 52na Leg.,
R.S. 1951, oh. 469, p. 824, exempta
licenaea practitioners of maiotii3,
dentistry, or ohlropody from the pro-
vision or Article 758a, V.P.C., vhlch
prascrlbes a penalty for the aispens-
lag OS drugs by persone other than
reglstema phammclets.
APPROVEDx Yours very trulg
J. C. Davis, Jr. PRICE DARIEL
County Affairs Division Attorney C!%neral
Jesse P. Luton, Jr.
Reviewing Assistant
Everett Rutahlnaon BY iiZXn%
Executive Asristant Assistant
BArlgrawo