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                         September 5, 1972


Hon. M. H. Crabb, Secretary        Opinion No. M-1208
Texas State Board of Medical
   Examiners                       Re:   Validity and constitu-
1612 Summit Avenue, Suite 303            tionality of Article 4505,
Fort Worth, Texas 76102                  Paragraph 4, Subpart CC),
                                         V.C.S., prohibiting the
                                         writing of prescriptions
                                         for or dispensing to a
                                         person known to be an
                                         habitual user of narcotic
Dear Dr. Crabb:                          or dangerous drugs, etc.

          In your recent opinion request you asked whether
Article 4505, Section 4(C), of the Texas Medical Practice Act
conflicts with any other state law, federal law or regulation,
or abridges any rights provided for in the Texas or United
States Constitutions.

          Article 4505, Vernon's Civil Statutes, as amended
in 1971, lists the reasons the State Board of Medical Examiners
may refuse to admit persons to its examinations and may refuse
to issue a license to practice medicine.  Section 4(C) of Article
4505 states:

            "Writing prescriptions for or dispensing
       to a person known to be an habitual user of narcotic
       drugs or dangerous drugs, or to a person who the
       doctor should have known was an habitual user of
       narcotic or dangerous drugs. This provision shall
       not apply to those persons being treated by the
       physician for their narcotic use after the physician
       notifies the Texas State Board of Medical Examiners
       in writing of the name and address of such person
       being so treated."

          Under Article 4506, a physician's license may be re-
voked for any of the reasons stated in Article 4505.

          The Uniform Narcotic Drug Act, which is Article 7251,of
the Texas Penal Code, states:


                              -5925-
Hon. M. H. Crabb, page 2      (M-1208)



         "(14) 'Narcotic drugs' means coca leaves,
    opium, cannabis, amidone, isonipecaine and every
    substance neither chemically nor physically dis-
    tinguishable from them; also opiates, which shall
    mean any drug having an addiction-forming or ad-
    diction-sustaining liability similar to opium or
    cocaine; substances which are now listed in, or
    may be added subsequently to, Schedule II, Title
    II, Part B, Section 202, under the provisions of
    the Comprehensive Drug Abuse and Prevention and
    Control Act of 1970."

          Under Section 9(1)l of this Act, physicians must keep
records of narcotic drugs received, administered, dispensed or
professionally used by them. T3e form for these records is ex-
pressly set out in Section 9(5) of Article 725b, and requires that
for all narcotic drugs sold, administered, dispensed or otherwise
disposed of, the physician must show the date of the selling, ad-
ministering or dispensing as well as the name and address of the
person to whom or for whose use the drugs were sold, administered




1
 Art. 725b, Texas Penal Code. Section 9. (1) Physicians, Dentists,
 Veterinarians, and other Authorized Persons. Every physician,
 dentist, veterinarian, or other person who is authorized to ad-
 minister or professionally use narcotic drugs, shall keep a record
 of such drugs received by him, and a record of all such drugs
 administered, dispensed, or professionally used by him otherwise
 than by prescription.   It shall, however, be deemed a sufficient
 compliance with this Subsection if any such person using small
 quantities of solutions or other preparations of such drugs for
  local application, shall keep a record of the quantity, character,
 and potency of such solutions or other preparations, purchased
 or made up by him, and of the dates when purchased or made up
 by him, without keeping a record of the amount of such solution
 or other preparation applied by him to individual patients.    . . .
2
 Art. 72533, Texas Penal Code. Section 9. (5) Form and Preserva-
 tion of Records. The record of narcotic drugs received shall in

                             -5926-
Hon. M. H. Crabb, page 3      (M-1208)



or dispensed and the kind and quantity of drugs. The Federal
Narcotic Laws require substantially the same information as
specified in Article 72523, Texas Penal Code, and in Article 4505,
Section 4(B), Vernon's Ci il Statutes, of the Texas Medical
Practice Act.  Section 19Y of Article 72533, Texas Penal Code,
further provides that the prescriptions, orders and records which
are required by the Act are to be open to inspection only by
Federal, State, county and municipal officers who have a duty
to enforce the laws relating to narcotic drugs.




every case show the date of receipt, the name and address of the
person from whom received, and the kind and quantity of drugs
received: the kind and quantity of narcotic drugs produced or
removed from process of manufacture, and the date of such pro-
duction or removal from process of manufacture; and the record
shall in every case show the proportion of morphine, cocaine, or
ecgonine contained in or producible from crude opium or coca
leaves received or produced, and the proportion of resin contained
in or producible from the plant Cannabis Sativa L. The record
of all narcotic drugs sold, administered, dispensed, or other-
wise disposed of, shall show the date of selling, administering,
or dispensing, the name and address of the person to whom, or
for whose use, or the owner and species of animal for which the
drugs were sold, administered, or dispensed, and the kind and
quantity of drugs. Every such record shall be kept for a period
of two (2) years from the date of the transaction recorded.   The
keeping of a record required by or under the Federal Narcotic
Laws containing substantially the same information as is specified
above, shall constitute compliance with this Section, except that
every such record shall contain a detailed list of narcotic drugs
lost, destroyed, or stolen, if any, the kind and quantity of such
drugs, and the date of the discovery of such loss, destruction, or
theft.
3Art. 725b, Texas Penal Code. Section 19. Prescriptions, orders,
 and records, required by this Act, and stocks of narcotic drugs,
 shall be open for inspection only to Federal, State, county, and
 municipal officers, whose duty it is to enforce the laws of this
 State or of the United States relating to narcotic drugs. No

                            -5927-
Hon. M. H. Crabb, page 4      (M-1208)



           The term "public office" is defined as "the right,
authority, and duty created and conferred by law, by which, for
a given period, either fixed by law, or enduring at the pleasure
of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised
by him for the benefit of the public. The individual so in-
vested is a public officer."   47 Tex.Jur.2d 10, Public Officers,
Sec.  1: Kimbrouah v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900);
Aldine'Indep. Sch. Dist1. v. Standley, 154 Tex. 547, 280 S.W.2d
578  (1955); Knox, et al. v. Johnson, 141 S.W.Zd 698 (Tex.Civ.App.
1940, error ref.): Northwestern Natl. Life Ins. Co. v. Black,
383 S.W.2d 806 (Tex.Civ.App. 1964, error ref. n.r.e.); Hendricks
v. State, 49 S.W. 705 (Tex,Civ.App. 1899, no writ).   The memi bers
of the State Board of Medical Examiners are included among State
officers.
          Article 726d, Vernon's Penal Code, sets out the State's
law on dangerous drugs. It is the intent of the Legislature under
this Act to regulate and control the handling, sale and distri-
bution of dangerous drugs as defined in the Act in order to:
           II
            . . . 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 com-
     plement and supplement the Laws and Regulations of
     the Congress of the United States and the appro-
     priate agencies of the Federal Government affecting
     such handling, sale, and distribution; to prevent
     such handling, sale or distribution for harmful or




 officer having knowledge by virtue of his office of any such
 prescription, order, or record shall divulge such knowledge,
 except in connection with a prosecution or proceeding in Court
 or before a licensing or registration board or officer, to which
 prosecution or proceeding the person to whom such prescriptions,
 orders, or records relate is a party.

                             -5928-
   1   .




Hon. M. H. Crabb, page 5        (~-1208)



       illegitimate purposes; and to place upon manufacturers,
       wholesalers, licensed compounders of prescriptions,
       and persons prescribing such drugs, a basic re-
       sponsibility for preventing the improper distribution
       of such drugs to the extent that such drugs are pro-
       duced, handied, sold, or prescribed by them."   -
        (Emphasis added.)

          A dangerous drug is defined under the Act as "any drug
or device unsafe for self-medication," with certain exceptions
relating to drugs in the treatment of animals or poultry.  This
definition is quite broad and includes antibiotics as well as
hallucinogens, amphetamines, tranquilizers and synthetic narcotic
drugs. Physicians again are required to keep records under this
Act and must keep records and report the information required
under Article 4505, Sections 4(B) and 4(C), Vernon's Civil Statutes.

          A third area involving narcotics and dangerous drugs is
that dealing specifically with synthetic narcotics. Article 725e,
Sections 1 and 2, Vernon's Penal Code , require a permit from




4Art. 725e, Texas Penal Code. Section 1. One hundred twenty days
 after the effective date of this Act it shall be unlawful to pre-
 scribe or administer synthetic narcotic drugs to any person for
 the purpose of treating drug dependency without a permit issued
 by the Texas State Department of Health.

 Section 2. (a) The Texas State Department of Health, hereinafter
 designated as "the department," shall establish, administer, and
 enforce such rules, regulations, and standards as it deems neces-
 sary to insure the proper use of synthetic narcotic drugs in the
 treatment of drug-dependent persons.  To advise the department in
 the establishment, administration, and enforcement of such rules,
 regulations, and standards, an advisory committee shall be ap-
 pointed.   . . .



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Hon. M. H. Crabb, page 6      (M-1208)



the Texas State Department of Health before a physician may pre-
scribe or administer synthetic narcotics for the purpose of treat-
ing drug dependency.  This section also gives the Department the
authority to establish, administer and enforce any rules, regula-
tions, and standards necessary to insure the proper use of synthetic
narcotics in the treatment of drug dependent persons.

          From the foregoing, it is our conclusion that physicians
must comply with the reporting provisions of Article 4505, Section
4(C), when they are prescribing or dispensing narcotic or dangerous
drugs (including synthetic narcotic drugs) to one known or one who
the doctor should have known was an habitual user of narcotic or
dangerous drugs. To the extent Article 725e, Section 2, Vernon's
Penal Code, gives the Texas State Department of Public Health the
authority to establish rules, regulations, and standards as to the
use of synthetic narcotic drugs in treating drug dependency, the
physicians must also report the names and addresses of those who
receive treatment under this program to the State Department of
Health as well as to the State Board of Medical Examiners.

          Article 4505, Section 4(C), is not in conflict with the
United States or Texas Constitutions.  The physician/patient privi-
leged communication is not a constitutional right and it was not
recognized as a right or privilege at common law. It is merely
a statutory privilege in those states whose legislatures have con-
ferred the privilege.  McCormick & Ray, Evidence, Section 491,
page 412-414. Texas does not recognize that privilege.    Steagald
v. State, 22 Tex. 464, 3 S.W. 771 (1886); Dodd v. State,83 Tex.
Crim. 160, 201 S.W. 1014 (1918); Crow v. State, 89 Tex.Crim. 149,
230 S.W. 148 (1921); Consolidated Underwriters v. Foxworth, 196
S.W.2d 87 (Tex.Civ.App. 1946); Bonewald v. State, 157 Tex.Crim.
521, 251 S.W.2d 255 (1952); Caddo Grocery & Ice Co. v. Carpenter,
285 S.W.2d 470 (Tex.Civ.App. 1955); Tex. Employer's Ins. Assn.
v. Marshall, 436 S.W.2d 619 (Tex.Civ.App. 1969).

          According to Mr. Oliver Fields, legal counsel for the
American Medical Association, and a Mrs. Anderson of the AMA legal
staff, Texas is following the nationwide trend in that the majority
of the states do have some type of reporting requirement, and Texas'
provisions are almost identical to the language recommended by the
AMA for adoption in the Uniform Drug Act.

          Insummary, we do not find any conflict between the Texas
and United States Constitutions, and we do not find any conflict
in the federal and state regulations.  In fact, the Texas statutes
have been enacted pursuant to federal legislation.  (See Public


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    I   .
.




Hon. M. H. Crabb, page 7            (M-1208)



Law 91-513, the Federal Comprehensive Drug Abuse Prevention
Control Act of 1970.) We have noted the control of the State
Health Department over all phases of synthetic narcotic drugs
and that physicians must report the names and addresses of those
who are treated with synthetic narcotic drugs in drug dependency
programs both to the State Board of Medical Examiners and to the
State Health Department.

                          SUMMARY

             Article 4505, Section 4(C), Vernon's Civil
        Statutes, does not violate any United States or
        Texas constitutional provisions, nor do we find
        that it violates any federal law or regulation or
        any other State law or regulation.




                                               eneral of Texas

Prepared by Linda Neeley
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Reeves
Van Thompson, Jr.
Howard Fender
Sig Aronson

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant



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