Dr. James E. Peavy 

Commissioner of Health 

Opinion No. C-507 

Texas State Department of Health Re: Whether or not the proAustin, Texas visions of the Texas 

Dangerous Drug Act as 

amended by House Bill 

No. 228, 59th Legislature , 1965, conflict 

with the Texas Hazardous 

Substances Act insofar 

as both relate to the 

sale of substsnces 

Dear Dr. Peavy: containing thallium. 

Your letter of August 19, 1965, requesting our opinion 

relative to the above captioned matter reads in part aa follows: 

"Article 726-1, V.T.P.C., which is generally 

referred to as the Texas Hazardous Substance Act, 

provides certain prohibited acts in Section 3, 

subsection (a) which reads as follows: 

'Sec. 3. No person shall sell, offer for 

sale, or hold for sale in this State in a container 

suitable for or intended for household use my of 

the following: 

'(a) Any mixture or substances containing 

thallium sulfate or any thallium salt, containing 

more than one per cent (1s) of thallium, expressed 

as metallic thallium.' (Emphasis ours) 

"The 59th Legislature at its Regular Session 

passed House Bill No. 228, codified as Article 

726e, v.T.P.c., which amended the Texas Dangerous 

Drug Act by making thallium subject to prescription 

as f0me in Section 2, subsection (a) as follows: 

'(a) The term "dangerous drug" means any drug 

unsafe for self-medication, exce t preparations of 

drugs defined in Subdivisions (a P (5), (a) (6), 

(a) (8), and (a) (9) hereof, designee for the 

purpose of feeding or treating animals (other than man) 

-2392- 
Dr. James E. Peavy, page 2 (C-507) 

or poultry, and so labeled, and includes the 

following: 

'. . . 

'(11) Thallium or any'cempound thereof. 

1. . .' 

"We believe that there is a conflict between 

House Bill No. 228 snd Section 3(a) of the Texas 

Bazardous Substances Act Article 726-1, V.T.P.C.) 

since House Bill No. 228 I Article 726d, V.T.P.C.) 

does not expressly repeal all laws and parts of 

laws in conflict therewith. 

"Since House Bill No. 228 as passed by the 

59th Legislature becomes effective on Auguat 30, 

1965, we need 8 clarification from your office 

as to whether or not there is 8 conflict . . .' 

In answering your question, we look to the Texas 

Dangerous Substances Act and the Texas Dangerous Dr Act 

for the Legislative intent. Article 726-1, Sec. 2(c ue: , Vernon's 

Texas Pen81 code, defines "hazardous substance" 8s 'any 

substance or mixture of substances the customary or directed 

handling or use of which may result in the risk or SUbStanti8l 

personal injury or illness by reason of: (1) its toxicity 

through ingestion, inhalation, or 8bSorption through the skin; 

(2) its corrosiveness; 

its fl8mm8bility; or (5 f 

3) its irritating properties; (4) 

the likelihood of bursting of the 

container in which the substance is contained." 

By enacting the Texas Hazardous Substances Act, we 

believe the Legislature intended to regulate the sale and 

labeling of h828rdOUS substances in containers Suit8ble for 

or intended for household use. While the Legislature declared 

that any mixture or substances contsining thallium sulfate 

or any th8lliUm Salt, containing more than one per Cent (1%) 

of thallium, expressed 8s metallic thallium, was 8 hazardous 

substance, it did not prohibit its sale. The prohibition 

under Sec. 3(a) of Article 726-l extends only to the sale of 

mixtures or substances containing thallium sulfate or any 

thallium salts, containing more than one per cent (l$) of 

thallium, expressed 8s metallic thallium, in 8 container 

suitable for or intended for household use~mphasis added), 

-2393- 
Dr. James E. Peavy, page 3 (C-507) 

The purpose and intent of the Legislature in 

enacting the Texas Dangerous Drug Act is deCl8red in Section 1 

of Article 726e 88 follows: 

"The Legislature of the State of Texas 

hereby finds that it is essential to the public 

health and safety to regulate and control the 

handling, sale and distribution of 'dangerous 

drugs,' 8s defined in this Act. 

"It is, therefore, hereby declared to be 

the policy and intent of the Legislature of 

the State of Texas and the purpose of this 

Act to regulate and control such handling, 

sale, and distribution, 8nd, in particular, 

but without limitation of such purpose, to 

insure that the public shall,receive the 

therapeutic benefits of 'dangerous drugs' 

under medical supervision to the full extent 

required to assure safety and efficiency in 

their use; to complement and supplement the 

Laws and Regulations of the Congress of the 

United States and the appropriate agencies 

of the Federal Sovernment affecting such 

handling, sale, end distribution; to prevent 

such handling, s&le, and distribution for 

harmful or illegitim8te purposes; end to 

place upon manufacturers, wholesalers, 

licensed compounders or prescriptions and 

persons prescribing such drugs, 8 basic 

responsibility for preventing the improper 

distribution of such drugs to the extent 

that such drugs are produced, handled, sold, 

or prescribed by them." 

House Bill No. 228, which amends Section 2 (8) of 

Article 7264, lists thallium 8s a "dangerous drug" and permits 

its sale by prescription. 

While both the TeX86 Dangerous Substances Act and the 

Texas Dangerous Drug Act regulate the sale of thallium, we are 

of the opinion that the provisions of the Acts regulating sales 

are not in conflict. The Acts are mutually exclusive. The 

two Acts regulate different 8reas of public health, and their 

provisions are enforced by different State Agencies. The 

Texas Dangerous Substances Act prohibits the sale of mixtures 

or substances containing an excess of one per cent (1s) of 

thallium in containers suitable for or intended for household 

-2394- 
. - 

Dr. James E. Peavy, page 4 (C-507) 

use. The Texas Dangerous Drug Act regulates the handling, 

sale, and distribution of "dangerous drugs" for therapeutic 

purposes by prescription supervision and dispensation 

requirements imposed on the classes of persons named in s8id 

Act. 

SUMNARY 

Rouse Bill lo. 228, 59th Legislature, 1965, 

which amends Section 2 (8) of Article 7266, Vernon's 

Tex86 Pen81 Code, and which makes thallium subject 

to sale by prescription is not in conflict with 

Article 726-1, Section 3 (a), Vernon's Texas Pen81 

Code, which prohibits the sale of any mixture 

or substance~containing more than one per cent 

(1s) of thallium, expressed as metallic thallium, 

in a container suitable for or intended for household 

use because such statutes are laUtUally exclusive and 

regulete different areas of public health. 

Yours very truly, 

WAGGOEER CARR 

Attorney General 

By: 

Assistant 

DA:ml:sJ 

APPROVED: 

oPIEIOE COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

P8t Bailey 

George Black 

Howard Fender 

APPROVED FORTBEATTOREEY GEEERAL 

BY: T. B. Wright 

-2395-