                                The Attorney                 General of Texas
                                                     October 25. 1985
JIM MAlTOX
Attorney General



Supreme Ccurt Building         Robert Bernstein, K.D., P.A.C.P.            Opinion No. m-369
P. 0. BOX :254a                Commissioner
Austin. TX. 78711~ 2548        Texas Department of Eealth                  Re: Whether a foreign corporatim
512,475-Z%:
                               1100   West   49th   Stmet                  may receive a permit to prescribe
Telex 910474.1367
Telecopw512r475-0266           Austin, Texas         78i56                 and administer synthetic narcotic
                                                                           drugs to drug-dependent persons

714 Jackson. Suite 700         Dear Dr. Bernstein:
Dallas, TX 75202-4506
21417428944
                                    You have requested an interpretation of article &476-11,
                               V.T.C.S., which ml&es       to the regulation of the use of spathetic
4824 Alberta Ave.. Suite 160   narcotic drugs       111 the   treatment of    drug-dependent persons.
El Paso. TX. 79905.2793        Specifically, you tnquire whether a foreign corporation that holds a
91515333484                    certificate of auttloritpfrom the Texas Secretary of State, having met
                               all other   requirements    for permitting, may receive a permit to
loo, Texas.suite 700           prescribe and administer synthetic narcotic drugs to drug-dependerr
Ho”Stor~-x 77002.3111          persons. We conclrde t!m.tthe statute does not authorize the issuance
7131223~5662                   of such a permit to a corporation that is incorporated in another
                               state. We assume t.k.at  your question goes only to matters of statutor;
                               construction, and c:onsequently,we address no constitutional issue.
806 Broacway. Suite 312
Lubbock. 7.   79401.3479
806/747-52%                         Section 4 of ;trticle4476-11, which was enacted in 1971 by House
                               Bill No. 139 of the:Sixty-second Legislature, states that:
 4309 N. Te*:n. Suite B
 McAllen. 7.   78501-1685
                                                Any physician licensed by the Texas State Board
 512/682-r5L;
                                             of Medic&l.Examiners or any institution, public or
                                             private, organized and operated under the laws of
                                             this statae for thepurpose    of providing health
 200 Main Plaza. Suite 4W                    services may apply to the department on form
 San Antonm, TX. 78205.2797
                                             approved by the department for a permit to pre-
 51a225-4191
                                             scribe and administer synthetic narcotic drugs to
                                             drug-dependent persons.     The department shall
                                             issue a per&t to applicants qualified according
                                             to   its   rules,  regulations. and     standards.
                                             (Emphasis;added).

                               Rouse Bill No. 139 'was patterned after a similar bill enacted by the
                               Oregon Legislature in 1969 but was rewritten by a house committee
                               substitute. The lmquage of section 4, which originated in the house
                               committee substituix. remains unchanged today, even though section ;
                               was reenacted in 1085 by the Sixty-ninth Legislature to authorize the




                                                                 p. 1692
Dr. Robert Bernstein - Page 2   (X4-369)




collection of fees for the rtdministrationof the act.   Acts 1985, 69th
Leg., ch. 931. art. 7, 02, at:6797-98.

     The legislature authc'rized the issuance of a permit to an
institution that is organized under the laws of this state and
operated under the laws of this state. Those conditions should be
construed conjunctively ratber than disjunctively unless a contrary
construction is plainly 1nd:tcated.

     In Board of Insurance Conrmissioners of Texas v. Guardian Life
Insurance Co. of Texas, 180-S.W.Zd 906, at 908 (Tex. 1944). the Texas
Supreme.Court quoted with approval the following rule:

             Ordinarily the words 'and' and 'or,' are in no
          sense 1nterchange;~bleterms. but, on the contrary,
          are used in the s'zructureof language for purposes
          entirely variant, the former being strictly of a
          conjunctive, the latter, of a disjunctive, nature.
          Nevertheless. in '>:cder
                                 to effectuate the intention
          of the parties to an instrument, a testator, or a
          legislature, as t'lecase may be, the word 'and' is
          sometimes construed to mean 'or.' This COtlStr"C-
          tion, however. is never resorted to except for
          strong reasons aud the words should never be so
          construed unless the context favors the con-
          version; as where it must be done in order to
          effectuate the manifest intention of the user; and
          where not to do so would render the meaning
          ambig"o"s, or rer,u.ltin an absurdity; or would be
          tantamount to a refusal to correct a mistake.

See also White v. State, l!l;'
                             S.W.2d 389, 393 (Tex. Civ. App. - Austin
1946, writ ref'd n.r.e.).

     We find no indication that the legislature does not intend that
an institution be in ccmpliance with both conditions. To the
contrary, it is our opinion that the language used by the legislature
plainly indicates an intention to require an institution to be both
organized under the laws o:ithis state and operated under the laws of
this state in order to b,r eligible for a permit to prescribe and
administer synthetic narcotic drugs under this act.

      An incorporated institution is organized under the laws
 authorizing its incorporatjan. A foreign corporation is a corporation
 "organized under laws other than the laws of this state." Tex. Bus.
 Corp. Act, at. 1.02(A)(2); art. 8.01(A). Even if a corporation holds
 a certificate of authority from the secretary of state and operates in
 this state in compliance wLth the Medical Practice Act (V.T.C.S. art.
 4495b). and under the other laws of this state, the corporation



                                 p. 1693
Dr. Robert Bernstein - Page 3    (m-369)




complies with only one of the statutory requirements. Since a foreign
corporation is not organized under the laws of this state, it cannot
meet the second statutory cmditioa.

      We do not address issuus in this opinion that are not included in
your question, such as the practice of medicine in Texas by corpora-
tions   or the exercise of the police ocwer of the state to deny a
permit to a foreign corporation, But see Garcia V. Texas State B&d
of Medical Examiners, 384 '!. Supp. 434 (W.D. Tex. 1974), aff'd, 421
U.S. 995 (1975) (upholding; Texas statutes that prohibited lay-
controlled corporate practiw of medicine BS a reasonable exercise of
the police power of the state); Thompson V. Texas State Board of
Medical Examiners, 570 S.W.Zd 123 (Tex. Civ. App. - Tyler 1978, writ
ref'd n.r.e.) (power of stc.teto regulate practice of medicine under
state's police power); Atwrney General Opinion O-5116 (1943) (state
may refuse license to sell beer or wine to foreign corporation in
exercise of its police pove:r:l.

                                SUMMARY

             Section 4 of article 4476-11, V.T.C.S.. does
          not authorize a i'oreigncorporation to receive a
          permit to prescribe and administer synthetic
          narcotic drugs to drug-dependent persons.




                                            JIF     MATTOX
                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney Genseral

DAVID R. RICBARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




                                  p. 1694
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Dr. Robert Bernstein - Page s&   (34-369)




APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood




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