                               Aunms    I I. -.r*:s.\n
PHIOE    XBASXEL
LIIIm.SvTV .‘w?X~Y_,~

                              September 13, 1951

          Hon. Buster Brown            Opinion No. V-1284
          Secretary
          Texas Board of Pharmacy Re: Whether physicians or
          Temple, Texan               hospital or clllllcdis-
                                      pensarlea may dispense
                                      medications for a sepa-
                                      rate fee without a per-
                                      mit and without being
                                      or retaining a licensed
          pear Sir:                   pharmaciet.
                    You have requested our opinion on the fol-
          lowing Questions pertaMng to the Texas Pharmacy
          Act (Art. 4542a, V.C.S.), aa amended by Seaate Bill
          268, Acts 52nd Leg., R.S. 1951, ch. 469, p. 824:
                       #l. May a physician dispense medi-
                  cation for which a separate fee from hIa
                   rofeaelonal services is charged and not
                  En included under the licensing section
                  of the law?
                      '2. Can the dlepeneary of a hospital
                 or clinic furnish medication at a aepa-
                 rate fee for persona not patients without
                 hiring a pharmacist and obtaining a per-
                 mit?
                      -3. Under terms of the fourth para-
                 graph of Article 7588. Vernon!8 Penal
                 Code, 1s not the dispensing of drugs
                 limited to a licensed pharmaclat whether
                 the dispensary la a retail drug store or
                 a hospital or clinic dispensary?"
                    Section 8 of Ari;Icl.e
                                         4542a a8 amended by
          Senate Bill 268, sunra, provides:
                      #It shall be ~~l:twl~ul
                                            for sny per-
                 son who 18 not a rcglstered pharmacist
                 under the provlslon::of thla Act to com-
                 pound, mix. manufacture, combine, pre-
                 pare, label. sell, or dietribute at re-
Hon. Buster Brown, page 2 (V-1284)


     tail or wholesale any drugs or medicines,
     except In original packages. Provided
     that all persons now registered as phar-
     macists in this State shall have all
     rights granted to pharmacistsunder this
     Act: provided, however, that nothlrgln
     this Act shsll apply to or interfere
     with licensed practitionersof medicine,
     dentlstry or chiropody,who ie duly reg-
     istered as such by his respective State
     Board of Examiners of this State and no




     shall be construeh~to restrain a bona
     fide hospital or clinic from operating
     a dispensary or apothecary shop In order
     to provide services to its patients.
     Provided further, that nothing contained
     in this Act shall be construed to pre-
     vent the personal admfnistratlonof drugs
     and medicines carpied by any physician,
     surgeon, dentist, chiropodist or veter-
     inarian licensed by his respective Board
     of Examiners of this State, in order to
     supply the needs of his patients: nor to
     prevent the sale by peraone,   firms, joint
     stock companies, partnershipsor corpora-
     tions, other than registered pharmaclete,
     of patent or proprietarymedicines, or
     remedies and medicaznents  generally in
     use and which are harmless lf used ac-
     cording to instructionsas contained
     upon the printed label: and insecticides
     and fungicides and chemlcals ueeQ in the
     arte, when properly labeled: nor lneecti-
     cldes or fungicides that are mixed or
     compoundedfor purely agriculturalpur-
     poeee.” (Underscoringsupplied.)
          Prior to the above amendment, a physician
could not operate a retail drug store or dispense
medicationfor any person except his own patients
unless he was a registered pharmacisthimself or
had one continuallyemployed therein. However, the
underscoredprovlslon of the Act as amended clearly
authorizesa physician to dispense medication for
Hon. Buster Brown, page 3 (V-1284)


persona other thanhla patients. Since Section 8
of the Act provides that no provisions of the Act
shall be construed to restrain physicians from
operating a dispensary, prescriptionlaboratory,
or apothecary shop, it is our opinion that a phgsl-
clan cannot be required to obtain a pharmacist's
license in order to dispense medicationsfor which
a fee separate,fromhis professionalservices Ia
charged. Any other constructionwould be contrary
to the plain provisions of Section 8.
         Sections 17 and 19. Article   4542a,   V.C.S.,
as amended,'providet
         'Section 17. Every pereon. firm,
    joint stock company, partnership or
    corporationdesiring to operate a re-
    tall pharmacy, drug store, dispensary,
    or apothecary shop in thla State, as
    the same is defined herein; and every
    manufacturer of drugs and msdlclnee,
    as defined herein, after the passage
    of this Act, shall procure from the
    State Board of Pharmacy a permit for
    each store or factory to be operated
    by making an application to the Board,,
    upon a form to be furnished by the
    Board, setting forth under oath owner-
    ship and location, and the name and
    certificatenumber of \thepharmficlst
    registered in this State who is to be
    continuallyemployed by the drug store
    or pharmacy, or the pharmaceutical
    chemist or chemist qualified by acl-
    entlflc training, who Ia to be employ-
    ed by the factolyor manufacturer;pro-
    vided that the Boara~may in lta dia-
    cretlon refuse to lseue such permit
    to such applicant unless furnished
    with satisfactoryproof that such ap-
    plicant 16 engaged in the business of
    conducting a pharmacy, drug store,
    dldpenaary, apothecary ehop or factory
    for the purpose of manufacturingdrugs.

         *Provided further, that at any
    time after the laauance of a permit by
    the State Board of PhamPacy to such
    applicant, the Board may revoke,suepend
Hon. Buster Brown, page 4 (V-1284)



    or cancel the permit when satisfactory
    proof has been preeented to the Board
    that said permit holder 18 not conduct-
    ing a bona fide pharmacy, drug store,
    dispensary,apothecary shop or preecrlp-
    tlon laboratory,and any inspector,mem-
    belr,or official of the Board la hereby
    empowered to take charge of such permit
    pending final hearing before the Board,
    as to the revocation of same. The permit
    provided for herein shall be lasued an-
    nually by the Board upon receipt of pop-
    ~~~g;~yg,B,~~yg            z&yy;,
    be displayed conspicuouslyat all times
    in the pharmacy, drug store, dispensary,
    apothecary shop OT factory to which it
    ia issued.
        “All such permits shall expire on
    May 31at of each year and must be re-
    newed on or before June 1st of each
    year.
         -Very pemon, firm, joint stock
    company, partnerahlp, corporationor
    manufacturerdeslHng to open a new
    pharmacy, drug &ore, dispensary,apoth-
    ecary shop, or factoryahall procure the
    permit above mentioned before beginning
    its operation as such; and the same
    discretionarypowers may be used by the
    Board ln passing u on such applications;
    not more than one P1) etore or factory
    may be operated under one (1) permit.
         “In case of a change in pereonnel
    of registered pharmaclete,the Board
    shall be notified of such change wlthln
    tea (10) days ; provided the same pharma-
    cl&i’s name shall not appeal?on more
    than oae (1) permit.
         ‘Provided however, that no pro-
    olslon of this Act shall be construed
    to apply to any hospital or cllnlc
    malntalnlng‘3r operating a dispensary,
    apothecary shop or preecrlptlon lab-
    oratory for the care of its patients
Hon. Buster Brown, page 5 (V-1284)


     as long as a licensed pharmacist Is con-
     tinually employed to compound said pre-
     scriptlona.
         “section lg. A P~==cY, drug
     atore, dlapeneary,apothecary shop, or
     preecrlptlon laboratory,as used in
     this Act, is any atore or place where
     drugs or msdlclnee are sold or furnished
     In any manner at retail or for a fee to
     the consumer wherein a registeredphar-
     macist is employed.
         “Provided, however, that no pro-
     vision of thla Act shall be construed
     to apply to any hospital or clinic
     maintaining or operatinga dlapeaaary,
     apothecary ahop or prescriptionlab-
     oratory for the care of lta patleats
     aa long ae a licensed pharmacist is
     continuallyeqloyed to compound said
     prei3criptloaa.
         There is nothiqln the Act which exempta
phyalclansfrom the provlalons of Section 17, which
requires every pereon who operates a drug store to
secure a permit f’rcun
                     the State Board of Pharmacy.
Therefore, it Is our opinion that a physician may
not dispense medlcaton fur which a fee separate
from his’professional services la charged without
first obtaining a permit.
         Although Section 8 of the Act provia&
that.*no,provlslon of the Act shall be construed
to restrain a boaa ride hospital or clinic from
operating a aispeaeary or apothecary shop in order
to provide services to its patlenta,Y both Sections
17 and 19 provide that a registered pharmacist
must be continuallyemp1oye.Q.to compound the pre-
ecrlptiona.,
           In view of the foregoing, It la our opln-
ion that the dispensary of a hospital or clinic
muet continuallyemploy a pkirmaclat to Oomp0~a
the preecrlptloneand may not mnleh medication
to persqps   other than patients for a separate fee
without obtaining   a permit.
                 21 ‘of the Pharmacy Act, codified
         Sec.tlaol
ae Article 758a, V.P.C., was not amended by Senate
Bill 268, eupra. Article 758a, as amended la 1943,
provides in part:
354   Hon. Buster Brown, page 6 (v-1284)


               'Any peraon not being licensed aa~
          a pharmacletwho shall compound,mix.,
          blend, dispense, prepare or sell at re-
          tail any drug6 medicines poisons or
          pharmaceuticalpreparationsupon a
          physlclan'e prescription.or otherwise'
          and whoever being the man&g&r or own-
          er of the drug store, pharmacy or fac-
          tory 01 other place of buslnesa Shall
          manufacture,or permit anyone not ll-
          tensed as a pharmaclet to compound,mix,
          blend, dispense any drugs, medicinea,
          poisons or pharmaceuticalpreparations,
          on phyelclan'sprescription,contrary
          to any of the pro~lsio~  of this Act,
          ahall be subject to the penalties of
          thle Act."
                ObviouslyArticle &42a,V.C.S., ae amended
      and Article 7!j8a,V.P.C., are now in conflict lneo-
      far aa they apply to phyalclana. In Po
      e&$2;;:.         615, 51 S-W. 26 680,

               'As to tb question whether the
          act of 1931 repeals the act of 1930,
          we are of the oplnlonthatltdoes.
          In tbls connectloa It will be noted
          that the act of 1931 ie a later aot,
          and, In 80 far aa prescribing the
          terms of office ia coacerned, it ab-
          solutely conflictswith the 1930 act.
          The former act fixes the term of of-
          fice at four yeare, while the latter
          act fixes such term at two years.
          The act of 1931 does not mention that
          of 1930 but in 80 far a8 the term of
          office is concerned, the two acts
          are abaolutely antagonistic to each
          other. It follows that the latter
          act repeals the former by lmpllca-
          tion.*
                Also see Parehall Q. State, 62 TOX. 0ri.m.
       177, 138 S.W. 759 n911) Robertson Q. State, 70
       Tex. Crlm. 307, 159 S.W.;7-]         Towneeaa v.
       Terrell, 118 Tex. 463, 16 S.W.2d 10:3=9J1     %ate
       v. ou&western Qas 8 Electric Oompan& 145 Ter
                                   Att'y Gen. Ops. v-990
.,   . .




                                                                     33.55
           Eon.   Buster BWn,.'page 7 (V-1284)


                    Article &542a, V.C.S., as amended, having
           been passed subsequent to Article 758a, V.P.C.,
           vi11 control. Therefore, it Is our opinion that
           under the terms of SenateBIll 268, supra, licensed
           practltlonersof mecllcine,dentistry, or chlropoily,
           are exempt from the provision of Article '@a
           vhich states that any person not licensed as a
           pharmacistwho doea any of the enumerated acts
           shall be subject to a penalty.


                        A physician may dispense medication
                  for which a separate fee from his pro-
                  fesslonal services Is charged without
                  obtaining a license to practice   phar-
                  macy,   but he may not do SO without ob-
                  taining a permit as required by Section
                  17 of Artlole 4542a, V.C.S.

                        The aiapeneary of a hospital or
                  clinic must continuallyemploy a phar-
                  macist to 00mp0una   prescriptionsana
                  may not furnish medication for a sepa-
                  rate ree to persons ottir than patients
                  vlthout   obtaining a permit.
                       Senate Bill 268, Acts 52na Leg.,
                  R.S. 1951, oh. 469, p. 824, exempta
                  licenaea practitioners of maiotii3,
                  dentistry, or ohlropody from the pro-
                  vision or Article 758a, V.P.C., vhlch
                  prascrlbes a penalty for the aispens-
                  lag OS drugs by persone other than
                  reglstema   phammclets.
           APPROVEDx                            Yours very trulg
           J. C. Davis, Jr.                        PRICE DARIEL
           County Affairs Division               Attorney C!%neral
           Jesse P.    Luton, Jr.
           Reviewing   Assistant

           Everett Rutahlnaon                    BY   iiZXn%
           Executive Asristant                          Assistant
           BArlgrawo
