# The Attorney General of Texas

JIM MAlTOX Attorney General October 25. 1985

Supreme Ccurt Building P. 0. BOX :254a Austin. TX. 78711~ 2548 512,475-Z%: Telex 910474.1367 Telecopw

512r475-0266 Robert Bernstein,K.D., P.A.C.P. Opinion **No.** m-369

Commissioner Texas Department of Eealth Re: Whether a foreign corporatim 1100 West 49th **Stmet** may receivea permit to prescribe Austin, Texas 78i56 and administersynthetic narcotic drugs to drug-dependentpersons
714 Jackson. Suite 700 Dallas, TX 75202-4506 21417428944

4824 Alberta Ave.. Suite 160 El Paso. TX. 79905.2793 91515333484
loo,Texas.suite 700 Ho”Stor~

-x 77002.3111 7131223~5662

806 Broacway. Suite 312 Lubbock. 7. 79401.3479 806/747-52%

4309 N. Te*:n. Suite B McAllen. 7. 78501-1685 512/682-r5L;

200 Main Plaza. Suite 4W San Antonm, TX. 78205.2797 51a225-4191 Dear Dr. Bernstein:
You have requested an interpretation of article &476-11, V.T.C.S., which ml&es to the regulation of the use of spathetic narcotic drugs 111 the treatment of drug-dependent persons. Specifically, you tnquirewhether a foreign corporation that holds a certificate of auttloritpfrom the Texas Secretaryof State, having met all other requirements for permitting, may receive a permit to prescribe and administer synthetic narcotic drugs to drug-dependerr persons. We conclrde t!m.t the statutedoes not authorize the issuance of such a permit to a corporation that is incorporated in another state. We assume t.k.at your question goes only tomatters of statutor; construction,and c:onsequently, we addressno constitutional issue. Section 4 of ;trticle4476-11,which was enacted in 1971by House Bill No. 139 of the: Sixty-secondLegislature, states that: Any physician licensedby the Texas State Board of Medic&l.Examiners or any institution,public or private, organized and operated under the laws of this stataefor thepurpose of providing health services may apply to the department on form approved by the department for a permit to prescribe and administer syntheticnarcotic drugs to drug-dependent persons. The department shall issue a per&t to applicants qualified according to its rules, regulations. and standards. (Emphasis;

added).
Rouse Bill No. 139 'waspatterned after a similarbill enacted by the Oregon Legislature in 1969 but was rewritten by a house committee substitute. The lmquage of section 4, which originated in the house committee substituix. remains unchanged today, even though section ; was reenacted in 1085 by the Sixty-ninth Legislature to authorize the

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collection of fees for the rtdministration of the act. Acts 1985, 69th Leg., ch. 931. art. 7, 02, at:6797-98.
The legislature authc'rizedthe issuance of a permit to an institution that is organized under the laws of this state and operated under the laws of this state. Those conditions should be construed conjunctively ratber than disjunctively unless a contrary construction isplainly1nd:tcated.

In Board of Insurance Conrmissionersof Texas v. Guardian Life Insurance Co. of Texas, 180-S.W.Zd 906, at 908 (Tex. 1944). the Texas Supreme.Courtquotedwith approval the followingrule:

Ordinarilythe words 'and' and 'or,' are in no sense 1nterchange;~ble terms.but, on the contrary, are used in the s'zructure of language forpurposes entirely variant, the former being strictly of a conjunctive,the latter,of a disjunctive,nature. Nevertheless.in '>:cder to effectuate the intention of the parties to an instrument, a testator, or a legislature,as t'lecasemay be, theword 'and' is sometimesconstrued to mean 'or.' This COtlStr"Ction, however. is never resorted **to** except for strong reasons aud the words should never be so construed unless the context favors the conversion; as where it must be done in order to effectuatethemanifest intention of theuser; and where not to do so would render the meaning ambig"o"s,or rer,u.lt in an absurdity; or would be tantamountto a refusal to correct amistake.
See also White v. State, l!l;' S.W.2d 389, 393 (Tex.Civ. App. - Austin 1946,writ ref'dn.r.e.).
We find no indication that the legislature does not intend that an institution be in ccmpliance with both conditions. To the contrary, it is our opinion that the languageused by the legislature plainly indicates an intention to require an institution to be both organized under the laws o:ithis state and operatedunder the laws of this state in order to b,religible for a permit to prescribe and administer syntheticnarcotic drugs under this act.
An incorporated institution is organized under the laws authorizing its incorporatjan. A foreign corporationis a corporation "organized under laws other than the laws of this state." Tex. Bus. Corp. Act, at. 1.02(A)(2);art. 8.01(A). Even if a corporationholds a certificate of authorityfrom the secretaryof state and operates in this state in compliancewLth the Medical Practice Act (V.T.C.S.art. 4495b). and under the other laws of this state, the corporation

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complies with only one of the statutoryrequirements. Since a foreign corporation is not organized under the laws of this state, it cannot meet the second statutorycmditioa.
We do not address issuus in this opinion thatare not included in your question, such as the practice of medicine in Texas by corporations or the exercise of the police ocwer of the state to deny a permit to a foreign corporation, But see GarciaV. Texas State B&d of Medical Examiners, 384 '!.Supp. 434 (W.D. Tex. 1974), aff'd, 421 U.S. 995 (1975) (upholding;Texas statutes that prohibited laycontrolled corporate practiw of medicine BS a reasonable exercise of the police power of the state); Thompson V. Texas State Board of Medical Examiners, 570 S.W.Zd 123 (Tex. Civ. App. - Tyler 1978,writ ref'd n.r.e.) (power of stc.teto regulate practice of medicine under state's police power); Atwrney General Opinion O-5116 (1943) (state may refuse license to sell beer or wine to foreign corporation in exerciseof itspolice pove:r:l.
SUMMARY Section 4 of article 4476-11, V.T.C.S.. does not authorize a i'oreigncorporation to receive a permit to prescribe and administer synthetic narcotic drugs to drug-dependentpersons.

TOM GREEN FirstAssistantAttorneyGenseral
DAVID R. RICBARDS ExecutiveAssistantAttorneyGeneral
ROBERT GRAY SpecialAssistantAttorney General
RICK GILPIN Chairman.Opinion Committee Preparedby Nancy Sutton AssistantAttorney General JIF MATTOX AttorneyGeneral of Texas

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APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Jim Moellinger Jennifer Riggs Nancy Sutton Sarah Woelk Bruce Youngblood **1**

p. 1695