    I




        Hon. John Peterson                            Opinion     No. V-1326
        County Attorney
        Potter County                                  Re:     Legality of the county nurse’s
        Amarillo,  Texas                                      administering   barbiturates to
                                                              a county patient under orders
                                                              of the physician employed by
                                                              the county to care for its indi-
                                                              gent patients subsequent to the
                                                              enactment of Senate Bill 295,
        Dear     Sir:                                         Acts 52nd Legislature.

                        Your   request   for our opinion       is substantially     as follows:

                      The Walker Convalescent      Home, operated by Fot-
                ter County, is caring for a county patient who is ad-
r               dicted to barbiturates.    The county nurse, under the
                orders of the physician employed’by        the county to ad-
                minister to its indigent patients, has been purchasing
                these barbituratesthrough       a wholesale   drug house in
                order to obtain them at a lower cost. There is on
                h&d. at present, approximately       four months’ supply.
                The county nurse; under the direct supervision         of the
                physician employed by the county to care for its in-
                digent patients, has been administering       the barbitu-
                rates to the patient.   Is it legal for the county nurse
                to continue to give these barbiturates,      under the doc-
                tor’s orders,   in view of Senate Bill 295, Acts 52nd
                Leg;;RS.    1951, ch. 413; p. 7587

                        T,he pertinent   parts    of Setite    Bill   295, supra.   are as fol-
        lows:

                      “Sec. 3. The following acts, the failure to act as
                hereinafter   set forth, and the causing of any such act
                or failure are hereby declared     unlawful except as pro-
                vided in SeCtion 4:

                        “(a)   The delivery      of any barbiturate      unless:

                      “( 1) Such barbiturate   is deR%ered bp,a pharma-
                cist, upon an original prescription,    and tEere is af-
-
                fixed to the immediate     container in which such drug
                is delivered’s,  label bearing (A) the name and address
Hon. John Peterson.   page 2      (V-1326)




     of the owner of the establishment     from which such
     drug was delivered;    (B) the date on which the pre-
     scription for such drug was filled; (C) the number
    ,of such prescription   as filed in the prescription
    files of the pharmacist    who filled such prescrip-
     tion; (D) the name of the practitioner    who pre-
     scribed such drug; (E) the name and address         of
     the patient, and if such drug was prescribed      for
     an animal, a statement showing the species of
     the animal; and (F) the directions    for use of the
     drug as contained in the prescription;     or

          “(2) Such barbiturate  is delivered   by a prac-
    titioner in the course of his practice and the im-
    mediate container in which such drug is delivered
    bears a label on which appears the directions       for
    use of such drug, the name and address       of such
    practitioner.  the name and address     of the patient,
    and, if such drug is prescribed   for an animal, a
    statement showing the species of the animal.

         ‘I
              . . .

         “(e) The possession     of a barbiturate    by any
    person unless such person obtained the drug under
    the specific provision   of Section 3a (1) and (2) of
    this Act and possesses    the drug in the container
    in which it was delivered    to him by the pharmacist
    or practitioner  selling or dispensing     the same; and
    any other possession    of a barbiturate    shall be pri-
    ma facie evidence of illegal possession.~”

         *a
              . . .

          “Sec. 5. The provisions      of paragraphs    (a and
    (e) of Section 3 shallnot be applicable:      (a) to the de-
    livery of barbiturates     to persons included in any of
    the classes   hereinafter    named, or to the agents or
    employees    of such persons, for use in the usual
    course of their business      or practice or in the per-
    formance    of their official duties, as the case may be;
    or (b) to the possession     of barbiturates   by such per-
    sons or their agents or employees         for such use:

           (1) Pharmacists;
           (2) Practitioners;
           (3) Persons    who procure barbiturates   (A) for dispo-
    sition by or under the supervision    of pharmacists   or prac-   ^.
    titioners employed by them; or (B) for the purpose of law-
    ful research,   teaching, or testing, and not for resale;
Hon.    John Peterson,   page   3     (V-1326)




         (4) Hospitals ‘and other institutions which procure
       barbiturates   fork lawful administrationby    practition-
       ers;
         (5) Officers   or employees,of    Federal; State, or
       local Government;
         (6) Manufacturers     and Nholesalers;
         (7) Carriers    and Warehousemen.”

           Section 2 of the Act defines       “practitioner” as including
a person    licensed by the State Board       of Medical Examiners.

            Under the language of Section’5’ of the Act, ‘physicians
and their agents or employees         are exempt from the provisions
of Section 3 relating to the delivery      and possession   of barbitu-
rates.    Since the county nurse received and possesses        the bar-
biturates    for the purpose of administering     them under the or-
ders of a physician,      she is acting as his agent ,and comes within
the exemption of subdivision       (2) of Section 5. It is unnecessary
for us to determine      whether she is also exempt under other sub-
divisions    of this section.

           There~fore, it is our opinion that the possession      of these
barbiturates   under the circumstances       outlined in your letter is
not illegal and that the county nurse may continue to purchase
and administer    barbiturates    to a patient in a county institution
under direct supervision      of the physician employed by the coun-
ty to care for its indigent patients.

          In this connection, we call your attention        to the provi-
sion of Section 6 of the Act which reads:

             “Persons   (other than carriers)   to whom the pro-
       visions of Section 5 are applicable     shall:  (1) make a
       complete record of all stocks of barbiturates       on hand
       on the effective date of this Act and retain such record
       for not less than two (2) calendar     years immediately
       following   such date; and (2) retain each commercial       or
       other record relating to barbiturates      maintained by them
       in the usual course of their business      or occupation, for
       not less than two (2) calendar years immediately        follow-
       ing the date of such record.”



                                    SUMMARY

            A county nurse who administers      barbiturates to
       an indigent patient in a county institution ,under orders
Hon.   John Peterson,   page 4   (V-1326)




       of the physician employed by the county to care for
       its indigent patients is exempt from the provisions
       of Section 3, S.B. 295, Acts 52nd Leg., R.S. 1951,~
       ch. 413, p. 758, relating to unlawful delivery and
       possession   of barbiturates.

                                       Yours   very   truly,

APPROVED:                               PRICE DANIEL
                                       Attorney General
J. C. Davis, Jr.
County Affairs   Division

Jesse P. Luton, Jr.
Reviewing Assistant
                                               Assistant
Everett Hutchinson
Executive Assistant

BA:awo:b



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