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 receive a permit to prescribe 

Austin, Texas 78i56 and administer synthetic narcotic 

drugs to drug-dependent persons 

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 tnquire whether a foreign corporation that holds a 

certificate of auttloritp from the Texas Secretary of 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 statute does 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 to matters of statutor; 

construction, and c:onsequently, we address no constitutional issue. 

Section 4 of ;trticle 4476-11, which was enacted in 1971 by House 

Bill No. 139 of the: Sixty-second Legislature, states that: 

Any physician licensed by the Texas State Board 

of Medic&l. Examiners or any institution, public or 

private, organized and operated under the laws of 

this statae for thepurpose of providing health 

services may apply to the department on form 

approved by the department for a permit to prescribe and administer synthetic narcotic 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 'was patterned after a similar bill 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 

p. 1692 
Dr. Robert Bernstein - Page 2 (X4-369) 

collection of fees for the rtdministration of the act. Acts 1985, 69th 

Leg., ch. 931. art. 7, 02, at: 6797-98. 

The legislature authc'rized the 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 is plainly 1nd:tcated. 

In Board of Insurance Conrmissioners of Texas v. Guardian Life 

Insurance Co. of Texas, 180-S.W.Zd 906, at 908 (Tex. 1944). the Texas 

Supreme.Court quoted with approval the following rule: 

Ordinarily the words 'and' and 'or,' are in no 

sense 1nterchange;~ble terms. but, on the contrary, 

are used in the s'zructure of language for purposes 

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'le case may be, the word 'and' is 

sometimes construed 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 

effectuate the manifest intention of the user; and 

where not to do so would render the meaning 

ambig"o"s, or rer,u.lt in an absurdity; or would be 

tantamount to a refusal to correct a mistake. 

See also White v. State, l!l;' S.W.2d 389, 393 (Tex. Civ. App. - Austin 

1946, writ ref'd n.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 language used by the legislature 

plainly indicates an intention to require an institution to be both 

organized under the laws o:i this state and operated under the laws of 

this state in order to b,r eligible for a permit to prescribe and 

administer synthetic narcotic drugs under this act. 

An incorporated institution is organized under the laws 

authorizing its incorporatjan. A foreign corporation is 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 corporation holds 

a certificate of authority from the secretary of state and operates in 

this state in compliance wLth the Medical Practice Act (V.T.C.S. art. 

4495b). and under the other laws of this state, the corporation 

p. 1693 
Dr. Robert Bernstein - Page 3 (m-369) 

complies with only one of the statutory requirements. Since a foreign 

corporation is not organized under the laws of this state, it cannot 

meet the second statutory cmditioa. 

We do not address issuus in this opinion that are 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 Garcia V. 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.te to 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 

exercise of its police pove:r:l. 

SUMMARY 

Section 4 of article 4476-11, V.T.C.S.. does 

not authorize a i'oreign corporation to receive a 

permit to prescribe and administer synthetic 

narcotic drugs to drug-dependent persons. 

TOM GREEN 

First Assistant Attorney Genseral 

DAVID R. RICBARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

JIF MATTOX 

Attorney General of Texas 

p. 1694 
Dr. Robert Bernstein - Page s& (34-369) 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

Bruce Youngblood 

1 

p. 1695