JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12549 

Austin, TX. 79711.2548 

512/475.2501 

Telex 9101974-1357 

Telecooier 512/4750256 

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Dallas. TX. 75202.4506 

2141742-9944 

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El Paso, TX. 79905.2793 

91515353484 

1001 Texas, Suite 700 

Houston, TX. 77002-3111 

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Lubbock, TX. 79401.3479 

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M~Alkn, TX. 78501~1695 

5121882.4547 

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San Antonio, TX. 78205.2797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attortwy General of Texas 

tune 19, 1986 

Ronorable Chet Brooks 

Chairman 

Bealth and Human Resources 

Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Dear Senator Brooks: 

Opinion No. JM-500 

(corrected 7-14-86) 

Re: Proper location of a Class D 

pharmacy 

You ask several questions regarding the statutory construction of 

the Texas Pharmacy Act. In particular, you ask about the BoaEd of 

Pharmacy's authority to promulgate rules governing Class D pharmacies. 

To put your questim in context, we will first set out the statutes 

governing Class D !?bamacies. Since 1981 the Texas Pharmacy Act has 

provided for four different licensing classifications for pharmacies: 

'Class A pharmacy license' or 'conmunity 

pharmacy license means a license issued to a 

pharmacy dispensing drugs or devices to the 

general ;mblic pursuant to a prescription drug 

order. 

'Class ‘B pharmacy license' or 'nuclear pharmacy 

license' means a license issued to a pharmacy 

dispensing or providing radioactive drugs or 

devices for administration to an ultimate user. 

'Class C pharmacy license' or 'institutional 

pharmacy license means a license issued to a 

pharmacy located in a hospital or other in-patient 

facility that is licensed under the Texas Hospital 

Licensing 'Law (Article 4437f. Vernon's Texas Civil 

Statutes) or Chapter 6, Texas Mental Health Code 

(Article :5547-l et seq., Vernon's Texas Civil 

Statutes), or to a pharmacy located in a hospital 

maintained or operated by the state. 

'Clash :D pharmacy license' or 'clinic pharmacy 

license' neans a license issued to a pharmacy 

p. 2296 
Honorable Chet Brooks - Pagmz 2 (JM-500) 

dispensing a lisited type of drugs or devices 

pursuant to a prexription drug order. 

V.T.C.S. art. 4542a-1, §5(5)-(8). 

The Pharmacy Act requires all pharmacies to be under the supervision of a pharmacist. V.T.C.S. art. 4542a-1, 929(c). Class A 

pharmacies, Class B pharmacLes, and Class C pharmacies in institutions 

with more than 100 beds must be under the continuous on-site supervision of a pharmacist. Id. A Class D pharmacy, in contrast, must be 

under the continuous supe=ision of a pharmacist "whose services shall 

be required according to the needs of the pharmacy." Id. In other 

words, the supervising pharmacist of a Class D phacy need not 

always be on-site. 

The State Board of Pharmacy has authority to adopt rules for the 

proper administration and enforcement of the Pharmacy Act. Art. 

4542a-1, 916(a). Also, the act specifically provides that the board 

shall have "discretion to determine under which classifications a 

pharmacy applicant may be 1Lcensed.u Art. 4542a-1, $29(e). : 

Your first question about the regulation of Class D pharmacies 

is: 

1. Does the Texas Board of Pharmacy have the 

authority to change the definition of 'limited 

type of drug' in a manner which would preclude an 

outpatient clinic from being eligible for a Class 

D permit if that clinic limits the drugs it 

dispenses to only' dangerous drugs (&, no controlled substances) that are administered or 

provided only to patients of the clinic (&, not 

to the general pUb:Lic)? 

A brief you submitted argues that the Board of Pharmacy must grant a 

Class D license to a pharmacy seeking such a license as long as that 

pharmacy limits its formulary to dangerous drugs. We think that the 

legislature intended a Class! D pharmacy to be more restricted in the 

range of drugs it dispenses .than your brief urges. 

If the legislature had :intended that any pharmacy that limits its 

formulary to "dangerous drugs" must be licensed as a Class D pharmacy, 

it could have easily done :so. The Pharmacy Act defines "dangerous 

drug." V.T.C.S. art. 4542;~1, V.T.C.S. 55(12). Therefore, it would 

have been a simple matter for the legislature to define a Class D 

pharmacy as one that dispenses only "dangerous drugs." Instead, the 

legislature described a C3.as.s D pharmacy as one that dispenses "a 

limited type of drugs or dev,Lces." Art. 4542a-1, §5(8). 

p. 2297 
Honorable Chet Brooks - Page 3 (JM-500) 

The briefs submitte'i in response to your question show 

considerable disagreement shout what the legislature intended a Class 

D pharmacy to be. We think that the legislature's obvious intent was 

to allow clinics that provide a limited range of medical services to 

maintain a pharmacy wit11 a formulary that meets the limited 

pharmaceutical needs of the clinic's patients. We think that this 

intent is clear when all the provisions in the Pharmacy Act that refer 

to a Class D pharmacy are read together. First, a Class D pharmacy is 

a "clinic" pharmacy that (.ispenses a "limited type of drugs." Art. 

4542a-1, 55(s). Second, a clinic pharmacy need not be under the 

continuous on-site supervi!ri:on of a pharmacist. Third, the Pharmacy 

Act indicates that a clinic pharmacy does not serve the general 

public. See Art. 4542a-1, 530(h). Finally, the legislature made 

clear that~clinic pharmacy would be somewhere other than a doctor's 

office, but nonetheless c:omewhere at which a doctor could leave 

standing orders. See art. 4542a-1. $33(a) (allowing a physician to 

delegate the administering; or provision of dangerous drugs in the 

physician's office); art. 4542a-1, 533(b) (allowing a physician to 

delegate the administering or provision of dangerous drugs if such 

provision is provided thrcugh a Class D pharmacy). Taken together, 

these provisions indicate .that the legislature intended a Class D 

pharmacy to be located at a clinic that provided medical services so 

limited in scope that its ,patients could be adequately served by a 

pharmacy that does not requ?-re the constant presence and expertise of 

a licensed pharmacist. The legislature left it to the 'board's 

discretion to determine wh::ch clinics are in fact so limited in scope 

that the needs of their patients can be met by a Class D pharmacy. 

In conclusion, it would be consistent with both the statutory 

definition of "Class D pharmacy" and also with the purpose of a Class 

D pharmacy to define "limited type of drugs" in a way that would 

preclude an applicant from obtaining a Class D license if the only 

limit on its formulary wc,uld be that it dispensed only "dangerous 

drugs." 

Your second question J.6: 

2. May a Class D pharmacy be located on the 

premises of a physician's practice located in a 

facility commonl~~ referred to as a minor emergency 

center? 

This question seeks answers to factual matters. "Minor emergency 

center" has no legal definj.tion. Whether or not the services provided 

by such a facility are so limited that a Class D pharmacy could be 

located on the premises is a matter within the discretion of the Board 

of Pharmacy. 

p. 2298 
Honorable Chet Brooks - PaHe 4 (JM-500) 

SUMMARY 

A Class D phalnlacy is one with a formulary that 

is limited to ssrving the purposes of a clinic 

that provides limited medical services. The Board 

of Pharmacy has discretion to determine which 

pharmacies can br licensed as Class D pharmacies. 

J-I M MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2299