                                            GREG       A B B O T T



                                                 May 10,2007


Dewey E. Helmcamp 111, J.D.                                 Opinion No. GA-0547
Executive Director
Texas Board of Veterinary Medical Examiners                 Re: Validity of a rule adopted by the Texas
333 Guadalupe, Suite 3-8 10                                 Board of Veterinary Medical Examiners that
Austin, Texas 78701-3942                                    prohibits a Board licensee from dispensing any
                                                            controlled substance unless the licensee is
                                                            registered with the Texas Department of Public
                                                            Safety (RQ-0553-GA)

Dear Mr. Helmcamp:

        You ask about the validity of a rule adopted by the Texas Board of Veterinary Medical
Examiners (the "Board") that prohibits a Board licensee from dispensing any controlled substance
unless the licensee is registered with the Texas Department of Public Safety (the "DPS") under the
Texas Controlled Substances Act, chapter 48 1 of the Health and Safety Code (the "Act"). See TEX.
HEALTH& SAFETYCODEANN.$8 481.001-.205 (Vernon 2003 & Supp. 2006).'

        Section 48 1.061 of the Act states in relevant part:

                 (a) Except as otherwise provided by this chapter, a person who is not
                 a registrant may not manufacture, distribute, prescribe, possess,
                 analyze, or dispense a controlled substance in this state.

                 (b) A person who is registered by the director . . . may possess,
                 manufacture, distribute, analyze, dispense, or conduct research with
                 [a controlled] substance to the extent authorized by the person's
                 registration and in conformity with this chapter.

Id. 5 48 1.061(a)-(b) (Vernon 2003) (emphasis added). A "registrant" is a person who is registered
with the director in accordance with the Act's requirements. See id. $6 481.002(45) (Vernon Supp.


         'See Letter from Dewey E. Helmcamp 111, J.D., Executive Director, Texas Board of Veterinary Medical
Examiners, to Honorable Greg Abbott, Attorney General of Texas, at 1-2 (Nov. 9,2006) [hereinafter Request Letter];
see also Memorandum Brief attached to Request Letter from Lee H. Mathews, General Counsel, Texas Board of
Veterinary Medical Examiners, to Opinion Committee, Office of the Attorney General (Nov. 9,2006) [hereinafter Board
Brief]; Brief attached to Request Letter from Donald A. Ferrill, Brown, Pruitt, Peterson & Wambsganss, P.C., to Lee
H. Mathews, Texas Board of Veterinary Medical Examiners (Sept. 29,2006) [hereinafter Ferrill Brief] (Request Letter
and attached briefs on file with the Opinion Committee, also available at http://www.oag.state.tx.us).
Mr. Dewey E. Helmcamp 111, J.D. - Page 2 (GA-0547)



2006), 48 1.063 (Vernon 2003). The "director" is "the director of the [DPS] or an employee of the
[DPS] designated by the director." Id. 5 481.002(11). "Dispense" means "the delivery of a
controlled substance in the course of professional practice or research, by a practitioner or person
acting under the lawful order of a practitioner, to an ultimate user or research subject." Id.
5 48 1.002(12). "Dispense" also "includes the prescribing, administering, packaging, labeling, or
compounding necessary to prepare the substance for delivery." Id. Likewise, a "dispenser" is "a
practitioner, institutional practitioner, pharmacist, or pharmacy that dispenses a controlled
substance." Id. 5 481.002(13). Finally, a "practitioner" is defined to include a veterinarian. Id.
$481.002(39)(A). In sum, the Act requires a veterinarian who dispenses a controlled substance to
register with the director of the DPS or his designee.

        The Act also furnishes a number of exemptions from registration. Certain "persons are not
required to register and may possess a controlled substance under this chapter: (1) an agent or
employee of a registered manufacturer, distributor, analyzer, or dispenser ofthe controlled substance
acting in the usual course of business or employment." Id. 5 48 1.062(a)(l) (Vernon 2003) (emphasis
added).

        The Board adopted the rule at issue here under chapter 80 1 of the Occupations Code, which
regulates the "practice of veterinary medicine," defined in relevant part as:

                (A) the diagnosis, treatment, correction, change, manipulation, relief,
                or prevention of animal disease, deformity, defect, injury, or other
                physical condition, including the prescription or administration of a
                drug, biologic, anesthetic, apparatus, or other therapeutic or
                diagnostic substance or technique; [and]

                (B) the representation of an ability and willingness to perform an act
                listed in Paragraph (A)[.]

TEX.OCC.CODEANN.5 801.002(5)(A)-(B) (Vernon 2004). A "veterinarian" is "a person licensed
by the [Bloard under this chapter to practice veterinary medicine." Id. 5 801.002(1), (6). The Board
is empowered to "adopt rules as necessary to administer this chapter" and to "adopt rules of
professional conduct appropriate to establish and maintain a high standard of integrity, skills, and
practice in the veterinary medicine profession." Id. 5 80 1.151(a)-(b). The Board is required to adopt
rules to:

                 (1) protect the public; and

                 (2) ensure that alternate therapies, including ultrasound diagnosis
                 and therapy, magnetic field therapy, holistic medicine, homeopathy,
                 chiropractic treatment, acupuncture, and laser therapy, are performed
                 only by a veterinarian or under the supervision of a veterinarian.

Id.   5 801.151(c).
Mr. Dewey E. Helmcamp 111, J.D. - Page 3 (GA-0547)



        Rule 573.43, about which you inquire, provides in relevant part that "a licensee may not
prescribe, dispense, deliver, or order delivered any controlled substance unless the licensee is
currently registered with the . . . (DPS) to dispense controlled substances." 22 TEX.ADMIN. CODE
5 573.43(a) (2007) (Tex. Bd. of Veterinary Med. Exam'rs, Prescribing and/or Dispensing
Medi~ations).~   You indicate that this rule has been challenged as an unlawful exercise by the Board
of the Legislature's grant of authority to adopt rules. See Request Letter, supra note 1, at 2; see also
Board Brief, supra note 1, at 1; Ferrill Brief, supra note 1, at 3-5. It is argued that a veterinarian
who is not registered with the DPS may dispense controlled substances under the exemption of
section 48 1.062 of the Act as "an agent or employee of a registered . . . dispenser of the controlled
substance acting in the usual course of business or employment." TEX.HEALTH& SAFETYCODE
ANN.5 481.062 (a)(l) (Vernon 2003). See Ferrill Brief, supra note 1, at 3; see also Board Brief,
supra note 1, at 2. You ask whether rule 573.43 is a valid exercise of the Board's discretion.

        A state administrative agency has only those powers expressly conferred on it by the
Legislature as well as those implied powers that are reasonably necessary to carry out the express
responsibilities mandated by the Legislature. See State v. Pub. Util. Comm 'n, 883 S.W.2d 190, 194
(Tex. 1994); R.R. Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992). The rule-
making authority of the Board is designed to "protect the public" as well as to "establish and
maintain a high standard of integrity, skills, and practice in the veterinary medicine profession."
TEX.OCC.CODEANN.5 801.151(b)-(c) (Vernon 2004). The Board rule in question follows from
the Board's duties to protect the public and to maintain high standards in the profession it regulates.
See id. Moreover, the rule is not inconsistent with section 48 1.062 of the Act, which permits a non-
registrant who is an "agent or employee" of a licensee to "possess" a controlled substance. TEX.
HEALTH    & SAFETY  CODEANN.5 48 1.062(a)(l) (Vernon 2003). In no respect does section 48 1.062
allow an agent or employee to dispense a controlled substance. See id. Accordingly, we conclude
that the referenced portion of the Board's rule is a valid exercise of the Board's authority.

        You also ask whether the Act confers "exclusive rulemaking authority on the DPS with
regard to controlled substances and thereby preempt[s] or preclude[s] rulemaking on controlled
substances by the Board." Request Letter, supra note 1, at 2. You do not inquire about any
particular Board rule other than rule 573.43, and therefore we will not speculate about the Board's
authority to enact additional rules regarding controlled substances. The Act does not explicitly
confer exclusive rule-making authority on the DPS with respect to controlled substances. See TEX.
HEALTH&SAFETY        CODEANN.55 481.001-.205 (Vernon 2003 & Supp. 2006). And indeed, it could
not do so in light of federal statutes that regulate controlled substances. See, e.g., 21 U.S.C.A. 5 801
(West 1999 & Supp. 2006). Moreover, as we have indicated, rule 573.43 merely restates, with
regard to those persons over whom the Board has jurisdiction, the substance of the Act's
requirements. An individual who dispenses controlled substances must register with the DPS, and
the exemptions provided by section 481.062(a) permit only the possession, rather than the
dispensing, of a controlled substance by an agent or employee of a registrant.


        *The remainder of rule 573.43 relates to the requirement and potential waiver of registration with the federal
Drug Enforcement Administration. See 22 TEX.ADMIN.CODE§ 573.43(b)-(c) (2007) (Tex. Bd. of Veterinary Med.
Exam'rs, Prescribing andlor Dispensing Medications). You do not inquire about these sections. See Request Letter,
supra note 1, at 1-2.
Mr. Dewey E. Helmcamp 111, J.D. - Page 4 (GA-0547)



                                     S U M M A R Y

                      The Texas Board of Veterinary Medical Examiners is
              authorized to adopt a rule that prohibits a Board licensee from
              dispensing any controlled substance unless the licensee is registered
              to do so with the Texas Department of Public Safety.

                                            Very truly yours,




                                            ~ttorne~Cdknera1
                                                          of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
