Dr. James E. Peavy                  Opinion No. C-507
Commissioner of Health
Texas State Department of Health    Re:   Whether or not the pro-
Austin, Texas                             visions of the Texas
                                          Dangerous Drug Act as
                                          amended by House Bill
                                          No. 228, 59th Legis-
                                          lature, 1965, conflict
                                          with the Texas Hazardous
                                          Substances Act insofar
                                          as both relate to the
                                          sale of substsnces
Dear Dr. Peavy:                           containing thallium.
          Your letter of August 19, 1965, requesting our opinion
relative to the above captioned matter reads in part aa follows:
         "Article 726-1, V.T.P.C., which is generally
    referred to as the Texas Hazardous Substance Act,
    provides certain prohibited acts in Section 3,
    subsection (a) which reads as follows:
          'Sec. 3. No person shall sell, offer for
     sale, or hold for sale in this State in a container
     suitable for or intended for household use my of
     the following:
          '(a) Any mixture or substances containing
     thallium sulfate or any thallium salt, containing
     more than one per cent (1s) of thallium, expressed
     as metallic thallium.' (Emphasis ours)
          "The 59th Legislature at its Regular Session
     passed House Bill No. 228, codified as Article
     726e, v.T.P.c., which amended the Texas Dangerous
     Drug Act by making thallium subject to prescription
     as f0me in Section 2, subsection (a) as follows:
          '(a) The term "dangerous drug" means any drug
     unsafe for self-medication, exce t preparations of
     drugs defined in Subdivisions (aP (5), (a) (6),
     (a) (8), and (a) (9) hereof, designee for the
     purpose of feeding or treating animals (other than man)

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Dr. James E. Peavy, page 2 (C-507)


     or poultry, and so labeled, and includes the
     following:
          '. . .
          '(11) Thallium or any'cempound thereof.
          1. . .'
          "We believe that there is a conflict between
     House Bill No. 228 snd Section 3(a) of the Texas
     Bazardous Substances Act Article 726-1, V.T.P.C.)
     since House Bill No. 228 IArticle 726d, V.T.P.C.)
     does not expressly repeal all laws and parts of
     laws in conflict therewith.
          "Since House Bill No. 228 as passed by the
     59th Legislature becomes effective on Auguat 30,
     1965, we need 8 clarification from your office
     as to whether or not there is 8 conflict . . .'

          In answering your question, we look to the Texas
Dangerous Substances Act and the Texas Dangerous Dr   Act
for the Legislative intent. Article 726-1, Sec. 2(cue: Vernon's
                                                     ,
Texas Pen81 code, defines "hazardous substance" 8s 'any
substance or mixture of substances the customary or directed
handling or use of which may result in the risk or SUbStanti8l
personal injury or illness by reason of: (1) its toxicity
through ingestion, inhalation, or 8bSorption through the skin;
(2) its corrosiveness; 3) its irritating properties; (4)
its fl8mm8bility; or (5f the likelihood of bursting of the
container in which the substance is contained."
          By enacting the Texas Hazardous Substances Act, we
believe the Legislature intended to regulate the sale and
labeling of h828rdOUS substances in containers Suit8ble for
or intended for household use. While the Legislature declared
that any mixture or substances contsining thallium sulfate
or any th8lliUm Salt, containing more than one per Cent (1%)
of thallium, expressed 8s metallic thallium, was 8 hazardous
substance, it did not prohibit its sale. The prohibition
under Sec. 3(a) of Article 726-l extends only to the sale of
mixtures or substances containing thallium sulfate or any
thallium salts, containing more than one per cent (l$) of
thallium, expressed 8s metallic thallium, in 8 container
suitable for or intended for household use~mphasis     added),



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Dr. James E. Peavy, page 3 (C-507)


          The purpose and intent of the Legislature in
enacting the Texas Dangerous Drug Act is deCl8red in Section 1
of Article 726e 88 follows:
         "The Legislature of the State of Texas
    hereby finds that it is essential to the public
    health and safety to regulate and control the
    handling, sale and distribution of 'dangerous
    drugs,' 8s defined in this Act.
         "It is, therefore, hereby declared to be
    the policy and intent of the Legislature of
    the State of Texas and the purpose of this
    Act to regulate and control such handling,
    sale, and distribution, 8nd, in particular,
    but without limitation of such purpose, to
    insure that the public shall,receive the
    therapeutic benefits of 'dangerous drugs'
    under medical supervision to the full extent
    required to assure safety and efficiency in
    their use; to complement and supplement the
    Laws and Regulations of the Congress of the
    United States and the appropriate agencies
    of the Federal Sovernment affecting such
    handling, sale, end distribution; to prevent
    such handling, s&le, and distribution for
    harmful or illegitim8te purposes; end to
    place upon manufacturers, wholesalers,
    licensed compounders or prescriptions and
    persons prescribing such drugs, 8 basic
    responsibility for preventing the improper
    distribution of such drugs to the extent
    that such drugs are produced, handled, sold,
    or prescribed by them."
          House Bill No. 228, which amends Section 2 (8) of
Article 7264, lists thallium 8s a "dangerous drug" and permits
its sale by prescription.
          While both the TeX86 Dangerous Substances Act and the
Texas Dangerous Drug Act regulate the sale of thallium, we are
of the opinion that the provisions of the Acts regulating sales
are not in conflict. The Acts are mutually exclusive. The
two Acts regulate different 8reas of public health, and their
provisions are enforced by different State Agencies. The
Texas Dangerous Substances Act prohibits the sale of mixtures
or substances containing an excess of one per cent (1s) of
thallium in containers suitable for or intended for household

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Dr. James E. Peavy, page 4 (C-507)


use. The Texas Dangerous Drug Act regulates the handling,
sale, and distribution of "dangerous drugs" for therapeutic
purposes by prescription supervision and dispensation
requirements imposed on the classes of persons named in s8id
Act.
                      SUMNARY
          Rouse Bill lo. 228, 59th Legislature, 1965,
     which amends Section 2 (8) of Article 7266, Vernon's
     Tex86 Pen81 Code, and which makes thallium subject
     to sale by prescription is not in conflict with
     Article 726-1, Section 3 (a), Vernon's Texas Pen81
     Code, which prohibits the sale of any mixture
     or substance~containing more than one per cent
     (1s) of thallium, expressed as metallic thallium,
     in a container suitable for or intended for household
     use because such statutes are laUtUally exclusive and
     regulete different areas of public health.
                                Yours very truly,
                                WAGGOEER CARR
                                Attorney General

                                By:
                                      Assistant

DA:ml:sJ
APPROVED:
oPIEIOE COMMITTEE
W. V. Geppert, Chairman
John Reeves
P8t Bailey
George Black
Howard Fender
APPROVED FORTBEATTOREEY   GEEERAL
BY:   T. B. Wright




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