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                            OFTEXAS




        Honorable R.L. Wilson, Member
        Texas Board of Pharmacy
        Huntsville, Texas
        Dear Sir:              Opinion No. O-3577
                               Re: (1) Whether the Texas Board of
                                    Pharmacy may refuse to issue a
                                    reciprocity license to an appli-
                                    cant licensed in another State on
                                    grounds of moral character. (2)
                                    Whether the Board may call an ap-
                                    pltcant who seeks a license by
                                    reciprocity before it for examina-
                                    tion as to character, ethics and
                                    past experience.
               We have given careful consideration to the above ques-
        tions upon which you have requested our opinion. These ques-
        tions involve a construction of Section 9 of 4542a, Vernon's
        Annotated Civil Statutes, known as the Texas Pharmacy Law. We
        quote said Section 9 and underscore those provisIons which re-
        late dfrectly to the questions under consideration:
               "Sec. go Every applicant for license as a
            registered Pharmacist shall be not less than
            twenty-one years of age, of good moral character,
            and a graduate of a school or college of pharma-
            cy recognized by the Board. Such applicant, in
            addition to the time required to graduate from
            school or college of pharmacy and exclusive of
            the portion of the year spent in attendance at
            school or college, shall have had at least one
            year of practical experience in retail pharmacy
            under the dFrect supervision of a registered
            pharmacfst, which experfence shall be principal-
            ly work directly related to selling drugs and
            poisons, compounding of pharmaceutical prepara-
            tions and physicians' prescrlptfons, and keeping
            of records and maklng reports required under
            the State and Federal statutes; and to obtain
            a license shall pass a theoretlcal and practical
            examination satisfactory to the Board of pharma-
              0 prOVfa8a  that the Board may at its dlscre-
            z?on grant lfcense as pharmacist to persons who
Honorable R.L. Wilson, page 2         o-3577


   furnish Droof that thev hav
   such In some other Statg9-v
   good moral character, provided such other State
   In its examination required the same general
   degree of fitness~required by this State and
   grants the same reciprocal privileges to pharma-
   clsts of this State; and provided that exemption
   from the graduate in pharmacy requirement for
   entrance to examination for registration as
   pharmacist shall be allowed to persons who be-
   fore this Act becomes effective have been em-
   ployed for at least six months in a retail phtir-
   macy under the supervision of a registered phar-
   macist, and who register with the Board for such
   examination within one year after this Act be-
   oomes effective a-hdwho, within not more than
   five gears from date~~onwhich this Act becomes
   effective, produce satisfactory evidence to the
   Board of Pharmacy of having haa four years of
   pharmaceutical tralnfng under the supervision
   of a registered pharmacist and shall success-
   fully pass the examination required by the Board
   of Pharmacy."   (Underscoring ours).
        The validity of the Texas Pharmacy Law as a regulation
of the profession of pharmacy in the Interest of the public
health cannot be questtoned. 21 Tex. Jur.,~~511;Ratizalv. City
of l&n Antonio, 221 S-W. 237.   The good moral character of~those
practicing pharmacy is as vital to the safety of the public as
IS their training and experience, The Legislature may properly
make character as well as training a prerequisite to a llcgnse,
  3 American Jwisprudenc,e 372; McDonough v.'Gooacell, 13 Cal.
?28)  741, 91 P, (2a) 1035, 123 A. L. R, 1205. The discretion
and duty to pass upon the moral fitness of applicants may be
conferred by the Legislature upon the administrative board or' "
agency charged with granting the licenses. 48 Corpus Jurls 1090.
       We have been unable to find any Texas cases passing upon
the precise questfons submitted, but we refer to two cases frdm
other States which by analogy are applicable. The Supreme~Court
of Oklahoma In Re Mosher, 24 Okla. 61, 102 P. 705, held that a
reclproclty provision In the Oklahoma Constitution as to licens-
ing attorneys dfd not preclude inquiry into the moral qualifl-
cations of applicants from other.States, Fernel v. State Board
of Keaical Examiners, 267 Pac. 561, by the California Court of
Appeals hbldsi'thatan tippllcantfor a reciprocrty certificate
to practice niedlclnetiustsatI@ the board of his good moral
character, under the provfsions"of the Medlcal Practice Act of
California, We quote from the courts opinion in that case:
Honorable R.L. Wilson, page 3         o-3577


       "If It be required that one shall show
    reasonable evidence that he Is an ordinarily
    decent fellow before he shall have the privl-
    lege of submitting himself to the 'examination
    provided before he may emerge from the status
    of a student to.that of a licensed practltlon-
    er in our state, what reason could be advanced
    to excuse this showing In a recent comer in our
    midst, whose history is unknown to us;and who
    may have found it convenient to seek pastures
    new for reasons not comfortable to disclose?"
       The underscored portion of Section 9 of the Act quoted
above, manifests, in our opinion, a clear intention on the part
of the Legislature to make proof of good moral character of the
applicant to the board's satisfaction a prerequisite to the
granting of a license to one who was previously licensed in
another State. If the board acts arbitrarily and without justl-
f~icationIn this regard, the applicant may have his remedy ln
the courts.
       We likewise believe that it would be within the author-
ity and discretion of the State Board of Pharmacy to require ap-
plicants for licenses as pharmacists, whether by examination or
reciprocity, to appear before it in order that It may make per-
sonal examination of the applicant as to his moral Character,
ethics, experience, etc. Section 4 of Article 4542a provides
in part:
       ‘I*
         * l* The Board shall have the power to
   make by-laws and regulations, not Inconsistent
   with the law, for the proper performance of Its
   duties * * **'I
       Requiring the personal appearance of applicants before
the board would, we believe, come within the scope of discretion
as to the manner of discharging Its duties which has been dele-
gated to the board by the Legislature. As stated at 27 Texas
Jurisprudence 888:
       "In conferring power to license and prescrib-
    ing rules under which the power Is to be exercised,
    a law-making body does not delegate a legislative
    function, but an adminlstratlve or quasi-judicial
    one, even though considerable latitude is given
    the licensing offlclal in exercising such power."
Honorable R, L, Wilson, page 4          0 -3577


                                 Yours very truly
                           ATTORNEY GENERAL OF TFXAS
                                 By s/Walter R. Koch
                                      WalteFR. Koch
                                      Assistant

WRK:RS:wc

APPROVED JUN 9, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENHLAL
Approved Opinion Committee By s/BWB Chairman
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