               THE           AIIY,MNEY                       GENERAL
                                    OF-XAS
                               AUNTIN. TEXAN             78711


                                November         18, 1975


The Honorable    J. H. Arnctte,R.          Ph.                 Opinion   No.   H- 737
Secretary
Texas State Board of Pharmacy                                  Re: Whether      a person acting
914 Littlefield  Building                                      under the direction     of a licensed
Austin,    Texas  78701                                        practioner    of medicine,    dentistry,
                                                               or chiropody     has the benefit of
                                                               the exemption     which article    4542a,
                                                               V.T.C~.S.,     grants to physicians,
                                                               dentists   and chiropodists.

Dear   Mr.   Arnette:

      You have requested     our opinion regarding      whether  a person acting under
the direction  of a licensed   practitioner   of medicine,    dentistry  or chiropody
has the benefit of the exemption       which article   4542a, V. T. C. S. , grants to
physicians,   dentists  and chiropodists..       Section 8 of article   4542a provides,
in pertinent  part:

                           It shall be unlawful for any person who is not a
                        registered     pharmacist      underthe     provisions    of this
                        Act to compound,         mix, manufacture,         combine,     prey-
                        pare,    label sell, or distribute       at retail or wholesale
                        any drugs or medicines,          except in original      packages.
                        Provided     that all persons     now registered       as pharma-
                        cists in this State shall have all the rights granted to
                        pharmacists      under this Act.        Provided,     however,      that
                        nothing in this Act shall apply to or interfere             with any
                        licensed    practitioner     of medicine,     dentistry,     or chiro-
                        pody, who is duly registered           as such by his respective
                        State Board of Examiners           of this S,tate, who shall sup-
                        ply his or her patients,        as a physician,      dentist,    or
                        chiropodist,     and by them employed          as such, with such
                        remedies      as he or she may desire         and who does not
                        keep a pharmacy,         open shop, or drug store,          advertised
                        or otherwise,       for the retailing     of medicines     or poisons;
                        and provided,       further,   that nothing contained        in this Act




                                                 p.   3135
The Honorable     J. H.   Arnette,   R. F’h.   - page   two   (H-737)



                     shall be construed      to prevent   the personal
                     administration    of drugs and medicines         carried
                     by any physician,      surgeon,    dentist,   chiropodist,
                     or veterinarian    licensed    by his respective      Board
                     of Examiners     of this State, in order to supply the
                     immediate     needs of his patients.       . . .

      Attorney   General   Opinion WW-829( 1960),answered            your question   in the
negative,   holding that an exempted       practitioner    may not authorize     his nurse
or aide to fill and dispense     prescriptions      for his patients.    The Opinion noted
that the granting   of this authority    to an exempted     practitioner   would permit
him to create additional     categories     of exemption    beyond those established      by
the Legislature.

      In Attorney    General    Opinion WW - 1403( 1962), the Attorney   General     held
that a licensed    nurse might “carry     out the duties of the nursing    profession     by
dispensing    or administering      drugs or medicine    as directed  by a licensed
doctor.    . . . ” The Opinion took note of the previous      ruling, but apparently
perceived    no conflict.    It based its conclusion   on “the duty of the nurse.     . . .
to carry out the medical       treatment  prescribed   by a doctor for his patient. ”

     In our opinion,  Attorney   General    Opinion WW-829     controls your question.
As the Attorney   General   there observed,     another portion of section  8

                     exempts ‘certain .aenior pharmacy          students
                     operating    under the direct    supervision    of a
                     registered     pharmacist.    It would appear that
                     if the legislature   has intended that nurses or
                     other aides should also be exempted,           specific
                     mention thereof     would have been made.

Thus, it is our opinion that a person acting under the direction          of a licensed
practitioner   of medicine,    dentistry  or chiropody    does not have the benefit of
the exemption    which article   4542a grants to physicians,      dentists and chiro-
pdists..T.his’ is not to’say that pkrsons might not be able to perform            siniilsr
acts authorized    by other statutes.    -See m       art. 4518 relating   to professional
nursing.




                                     p.   3136
The    Honorable   J. H.   Arnette,    R. ph.   - page three         (H-737)




                                      SUMMARY

                           A person acting under the direction      of a
                       licensed   practitioner   of medicine,  dentistry
                       or chiropody     does not have the benefit of the
                       exemption    which article    4542a, V. T. C. S. ,
                       grants to physicians,      dentists and chiropodists.

                                                Very   truly     yours,




                                                Attorney       General    of Texas




Opinion    Committee


jad:




                                         p.   3137
