                                                  KEN PAXTON
                                            ATTORNEY GENERAL OF TEXAS




                                                   October 4, 2017



Sherif Zaafran, M.D.                                          Opinion No. KP-0168
President
Texas Medical Board                                           Re: Whether section 483 .102 of the Health and
Post Office Box 2018                                          Safety Code authorizes an eligible prescriber to
Austin, Texas 78768-2018                                      directly or by standing order prescribe an opioid
                                                              antagonist to law enforcement agencies
                                                              (RQ-0181-KP)

Dear Dr. Zaafran:

         You ask whether section 483.102 of the Health and Safety Code authorizes an eligible
prescriber to directly or by standing order prescribe an opioid antagonist to law enforcement
agencies. 1 Answering your question first requires an understanding of opioids and opioid
antagonists. Opioids are natural or synthetic substances that are also referred to as narcotics, and
physicians often prescribe opioids for pain relief and other medical uses. Porter, R.S., & Kaplan,
J.L., MERCK MANUAL PROFESSIONAL VERSION [database online] ("MERCK MANUAL"). 2 Examples
of prescription opioids include codeine, hydrocodone, methadone, morphine, and oxycodone. Id.
("Opioid Analgesics"). Heroin is also an opioid used as a recreational drug. Id. ("Opioid Use
Disorder and Rehabilitation"). When used incorrectly, opioids can have serious side effects, and
an opioid overdose can cause respiratory depression and death. Id. ("Opioid Misuse, Diversion,
and Abuse"). In 2015, an: estimated 33,091 deaths occurred in the United States from overdose on
prescription and illicit opioids. 3 During the past legislative session, the Legislature found "that
deaths resulting from the use of opioids and other controlled substances constitute a public health
crisis."4

         An "opioid antagonist" is "any drug that binds to opioid receptors and blocks or otherwise
inhibits the effects of opioids acting on those receptors." TEX. HEALTH & SAFETY CODE
§ 483.101(2). An opioid antagonist, such as naloxone, may prevent deaths from opioid overdose
if the overdosing person receives proper administration of the opioid antagonist. MERCK MANUAL,
supra note 2 ("Opioid Toxicity and Withdrawal"). If administered in time, an opioid antagonist

        1
          Letter from Dr. Sherif Zaafran, President, Tex. Med. Bd., to Honorable Ken Paxton, Tex. Att'y Gen. at I
(Sept. 18, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
        2
            Available at https://www.merckmanuals.com/professional/SearchResults?query=opioids ("Opioid Analgesics").
        3
          Centers for Disease Control and Prevention, Drug Overdose Death Data, Opioid Overdose,
https://www.cdc.govI drugoverdose/data/statedeaths.htm I.
        4 Act   of May 26, 2017, 85th Leg.; R.S., ch. 534, § 3, 2017 Tex. Sess. Law Serv. 1467, 1468.
Sherif Zaafran, M.D. - Page 2                          (KP-0168)



can quickly restore regular respiration to a person whose breathing has slowed or stopped due to
an opioid overdose. Id. Opioid antagonists can be delivered either by injection or through a nasal
spray. Id. Recognizing the ability of opioid antagonists to save numerous lives, in 2015 the
Legislature passed Senate Bill 1462, which permitted prescribing and dispensing an opioid
antagonist to both persons at risk of experiencing an overdose and to individuals in a position to
assist those experiencing an overdose. 5 In 2017, building on its prior efforts to address this health
crisis, the Legislature required the Texas Medical° Board to "adopt guidelines for the prescription
of opioid antagonists." TEX. Occ. CODE § 170.002(a); see also id. § 151.002(a)(l) (defining
"Board" as "the Texas Medical Board" for purposes of this section). Your question relates to these
newly-enacted laws and to what extent they allow the prescription of opioid antagonists to law
enforcement agencies.

        Section 483.102 of the Health and Safety Code authorizes a "prescriber" to "directly or by
standing order, prescribe an opioid antagonist to: (1) a person at risk of experiencing an opioid-
related drug overdose; or (2) a family member, friend, or other person in a position to assist a
pers~n described by Subdivision (l)." 6 TEX. HEALTH & SAFETY CODE § 483.102(a) (emphasis
added). Furthermore, section 483.103 authorizes a pharmacist to dispense an opioid antagonist to
the same individuals authorized to obtain a prescription from a prescriber. 7 Id. § 483.103(a).
Answering your question therefore requires a determination about whether law enforcement
agencies are "persons in a position to assist" a person at risk of experiencing an opioid-related
overdose within the meaning of the statute.

       While section 483 .102 does not expressly include an agency in the list of those authorized
to receive a prescription, unless a statute provides otherwise, the term "person" includes
"organization, government or governmental subdivision or agency ... and any other legal entity."
TEX. Gov'T CODE § 311.005(2) (Code Construction Act); TEX. HEALTH & SAFETY CODE § 1.002
(explaining that Code Construction Act applies to the Health and Safety Code unless expressly
provided otherwise); see also id. § 483.001(8) (defining "person" to include "an individual,

          5
            Act of May 29, 2015, 84th Leg., R.S., ch. 958, § 1, 2015 Tex. Gen. Laws 3397, 3398; see also Senate
Research Center, Bill Analysis, Tex. S.B. 1462, 84th Leg., R.S. (2015) ("The drug naloxone, an opioid antagonist,
offers a rapid and easily administered approach to quickly reverse an opioid overdose.").
         6"Prescriber" is defined as "a person authorized by law to prescribe an opioid antagonist." TEX. HEALTH &

SAFETY CODE§ 483.101(4). "Opioid-related drug overdose" is defined as "a condition, evidenced by symptoms such
as extreme physical illness, decreased level of consciousness, constriction of the pupils, respiratory depression, or
coma, that a layperson would reasonably believe to be the result of the consumption or use of an opioid." Id.
§ 483.101(3).
         7
          The Legislature shielded both prescribers and pharmacists from liability for opioid antagonists:
                  A prescriber who, acting in good faith with reasonable care, prescribes or does
                  not prescribe an opioid antagonist is not subject to any criminal or civil liability
                  or any professional disciplinary action for:
                  (1) prescribing or failing to prescribe the opioid antagonist; or
                  (2) if the prescriber chooses to prescribe an opioid antagonist, any outcome
                      resulting from the eventual administration of the opioid antagonist.
Id. § 483.102(c); see also id § 483.103(c) (providing the same protection for a pharmacist dispensing opioid
antagonists).
Sherif Zaafran, M.D. - Page 3                             (KP-0168)



corporation, partnership, and association"). Furthermore, with regard to distributing an opioid
antagonist, the statute provides that a "person or organization acting under a standing order . . .
may distribute an opioid antagonist." TEX. HEALTH & SAFETY CODE § 483.104 (emphasis added).
Thus, the Legislature made clear its intent that a standing order under section 483.102 could
authorize both individuals and organizations to obtain opioid antagonists by prescription.

        The question then becomes whether law enforcement agencies are "in a position to assist
persons" experiencing an opioid-related drug overdose. Experiences oflaw enforcement agencies
outside of Texas leave no question about the ability oflaw enforcement agencies to assist a person
experiencing an opioid overdose. 8 For example, between 2010 and 2015, one municipal police
department alone administered the opioid antagonist naloxone 419 times and rescued 402
individuals from opioid overdose. 9 As of December 2016, over 1,200 law enforcement
departments nationwide carried naloxone in an effort to prevent opioid-related deaths. 10 As first
responders, law enforcement officers have been and will continue to regularly be in a position to
assist persons experiencing an opioid-related drug overdose. Thus, section 483.102 of the Health
and Safety Code authorizes a prescriber to directly or by standing order prescribe an opioid
antagonist to law enforcement agencies in a position to assist persons experiencing an opioid-
related drug overdose. 11




         8 Bryan B. Kitch & Roberto C. Portela, Effective Use of Naloxone by Law Enforcement in Response to

Multiple Opioid Overdoses, PREHOSPIT AL EMERGENCY CARE 226, 228 (Mar. 22, 2016) ("[T]he experience of our law
enforcement providers in reversing multiple overdoses with naloxone in short succession represents proof offeasibility
of      training     and        distribution     of      this     medication         to      first     responders.").
http://www.tandfonline.com/doi/pdf/10.3109/10903127.2015.1076097?needAccess=true.
         9
          Food & Drug Admin., Law Enforcement & Naloxone                           Utilization   in   the   United   States,
https://www.fda.gov/downloads/Drugs/NewsEvents/UCM454810.pdf.
         10
              http://www.nchrc.org/law-enforcement/us-law-enforcement-who-carry-naloxone/.
         11
              The Legislature shielded from liability those individuals who administer an opioid antagonist in good faith:
                     A person who, acting in good faith and with reasonable care, administers or does
                     not administer an opioid antagonist to another person whom the person believes
                     is suffering an opioid-related drug overdose is not subject to criminal prosecution,
                     sanction under any professional licensing statute, or civil liability, for an act or
                     omission resulting from the administration of or failure to administer the opioid
                     antagonist.
TEX. HEALTH & SAFETY CODE§ 483.106(a).
Sherif Zaafran, M.D. - Page 4              (KP-0168)



                                     SUMMAR·Y

                      Section 483.102 of the Health and Safety Code authorizes a
              prescriber to directly or by standing order prescribe an opioid
              antagonist to law enforcement agencies in a position to assist
              persons experiencing an opioid-related drug overdose.

                                           Very truly yours,




                                           KEN PAXTON
                                           Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee
