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### OFTEXAS

Honorable R.L. Wilson, Member Texas Board of Pharmacy Huntsville, Texas

Dear Sir: OpinionNo. 

### O-3577 Re: (1) Whether the Texas Board of Pharmacymay refuse to issue a reciprocity license to an applicant licensed in another State on grounds of moral character. (2) Whether the Board may call an appltcantwho seeks a license by reciprocitybefore it for examination as to character, ethics and past experience.

We have given careful considerationto the above questions upon which you have requested our opinion. These questions involvea construction of Section 9 of 4542a,Vernon's Annotated Civil Statutes, known as the Texas Pharmacy Law. We quote said Section 9 and underscore those provisIonswhich relate dfrectly to the questions under consideration:

"Sec.go Every applicant for license as a registered Pharmacist shallbe not less than twenty-oneyears of age, of good moral character, and a graduate of a school or college of pharmacy recognizedby the Board. Such applicant, in addition to the time required to graduate from school or college of pharmacy and exclusive of the portion of the year spent in attendance at school or college, shall have had at least one year of practical experience in retail pharmacy under the dFrect supervisionof a registered pharmacfst,which experfence shall be principally work directly related to sellingdrugs and poisons, compounding of pharmaceuticalpreparations and physicians' prescrlptfons,and keeping of records and maklng reports required under the State and Federal statutes;and to obtain
a license shall pass a theoretlcaland practical examination satisfactoryto the Board of pharma0 prOVfa8a that theBoard may at itsdlscrez?on grant lfcense as pharmacist to persons whoHonorable R.L. Wilson, page 2 o-3577

furnish Droof that thev hav such In some other Statg9-v good moral character,provided such other State In its examinationrequired the samegeneral degree of fitness~requiredby this State and grants the same reciprocal privileges to pharmaclsts of this State; and provided that exemption from the graduate in pharmacy requirement for entrance to examination for registration as pharmacist shallbe allowed to personswho before this Act becomes effective have been employed for at least sixmonths in a retail phtirmacy under the supervision of a registeredpharmacist, and who registerwith the Board for such examinationwithin one year after thisAct beoomes effective a-hd who, within not more than five gears from date~~on which this Act becomes effective
,produce satisfactoryevidence to the Board of Pharmacy of having haa four years of pharmaceutical tralnfng under the supervision of a registeredpharmacist and shall successfully pass the examinationrequired of Pharmacy." (Underscoringours). by the Board

The validity of the Texas PharmacyLaw as a regulation of the profession of pharmacy in the Interestof the public health cannot be questtoned. 21 Tex. Jur.,~~511; Ratizal

v. City of l&n Antonio, 221 S-W. 237. The good moral character of~those practicing pharmacy is as vital to the safety of the public as IS their training and experience, The Legislaturemay properly make character as well as training a prerequisite to a llcgnse,

?3 American Jwisprudenc,e 372; McDonough v.'Gooacell, 13 Cal. 28) 741, 91 P, (2a) 1035, 123 A. L. R, 1205. The discretion and duty to pass upon the moral fitness of applicantsmay be conferredby the Legislature upon the administrativeboard or'" agency chargedwith granting the licenses. 48 Corpus Jurls 1090.

We have been unable to find any Texas cases passing upon the precise questfons submitted,but we refer to two cases frdm other States which by analogy are applicable. The Supreme~Court of Oklahoma InRe Mosher, 24 Okla. 61, 102 P. 705, held that a reclprocltyprovision In the Oklahoma Constitutionas to licensing attorneys dfd not preclude inquiry into themoral qualiflcations of applicants from other.States, Fernel v. State Board of Keaical Examiners, 267 Pac. 561, by the CaliforniaCourt of Appeals hbldsi'thatan tippllcantfor a reciprocrty certificate to practice niedlclne tiustsatI@ the board of his good moral character,under the provfsions"of the Medlcal PracticeAct of California, We quote from the courts opinion in that case:Honorable R.L. Wilson, page 3 o-3577

"If Itbe required that one shall show reasonable evidence that he Is an ordinarily decent fellow before he shall have the privllege of submittinghimself to the 'examination provided before he may emerge from the status of a student to.that of a licensedpractltloner in our state,what reason could be advanced to excuse this showing In a recent comer in our midst, whose history is unknown to us;and who may have found it convenient to seek pastures new for reasons not comfortableto disclose?"

The underscoredportion of Section 9 of the Act quoted above, manifests, in our opinion, a clear intention on the part of the Legislature to make proof of good moral character of the applicant to the board's satisfactiona prerequisite to the granting of a license to onewho was previously licensed in another State. If the board acts arbitrarilyand without justlf~ication

In this regard, the applicantmay have his remedy ln the courts.

We likewisebelieve that itwould be within the authority and discretion of the State Board of Pharmacy to require applicants for licenses as pharmacists,whether by examinationor reciprocity, to appear before it in order that Itmay make personal examinationof the applicant as to his moral Character, ethics, experience, etc. Section 4 ofArticle 4542a provides in part:

ëI* *l* The Board shall have the power to make by-laws and regulations, not Inconsistent with the law, for the proper performance of Its duties * * **'I Requiring the personal appearance of applicantsbefore the boardwould, we believe, comewithin the scope of discretion
as to the manner of discharging Itsduties which has been delegated to the board by the Legislature. As statedat 27 Texas Jurisprudence 888:

"In conferringpower to license and prescribingrules under which the power Is to be exercised,
a law-makingbody does not delegate a legislative function,but an adminlstratlve or quasi-judicial one, even though considerable latitude is given the licensing offlclal in exercising suchpower."Honorable R, L, Wilson, page 4 0-3577

Yours very truly

ATTORNEYGENERAL OF TFXAS
By s/WalterR. Koch WalteFR. Koch Assistant

WRK:RS:wc

APPROVED JUN 9, 1941 s/GroverSellers FIRST ASSISTANT ATTORNEY GENHLAL Approved Opinion CommitteeBy s/BWB Chairman

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