Dr. James E. Peavy

Commissionerof Health Opinion No. C-507
Texas State Department of Health Re: Whether or not the proAustin, Texas visions of the Texas DangerousDrug Act as amended by House Bill 

### No. 228, 59th Legislature, 

### 1965,conflict with the Texas Hazardous SubstancesAct 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 captionedmatter reads in part aa follows:

"Article 726-1,V.T.P.C.,which is generally referred to as the Texas Hazardous SubstanceAct, provides certainprohibited 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.' (Emphasisours) "The 59th Legislatureat 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 "dangerousdrug" 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)
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### (C-507)

or poultry, and so labeled,and includes the following:
'.
. . '(11)Thallium or any'cempound thereof. 1.

. .'
"Webelieve that there is a conflictbetween House Bill No. 228 snd Section 3(a) of the Texas Bazardous SubstancesAct 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. "SinceHouse Bill No. 

### 228as passed by the 59th Legislaturebecomes effective on Auguat 

### 30, 1965,we need 8 clarification fromyour office as to whether or not there is **8** conflict

. . .'
In answeringyour question,we look to the Texas Dangerous SubstancesAct 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 substanceor mixture of substances the customary or directed handling or use of which may result in the risk or SUbStanti8l personal injury or illnessby reason of: (1) its toxicity through ingestion, inhalation,or 8bSorption through the skin; (2) its corrosiveness; its fl8mm8bility;or 

### (5 f 

### 3) its irritatingproperties; 

### (4) the likelihoodof bursting of the container in which the substance is contained."

By enacting the Texas Hazardous SubstancesAct, 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 Legislaturedeclared that any mixture or substances contsining thallium sulfate or any th8lliUm Salt, containingmore 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-lextends only to the sale of mixtures or substances containing thallium sulfate or any thallium salts, containingmore than one per cent (l$)of thallium, expressed 8s metallic thallium, in 8 container suitable for or intended for household use~mphasis added),

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### 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 Legislatureof the State of Texas hereby finds that it is essential to the public health and safety to regulate and control the handling, sale and distributionof 'dangerous drugs,' 8s defined in this Act. "It is, therefore,hereby declared to be the policy and intent of the Legislatureof 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 therapeuticbenefits of 'dangerousdrugs' under medical supervision to the full extent required to assure safety and efficiency in their use; to complementand 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 suchhandling, s&le, and distribution for harmful or illegitim8tepurposes; end to place upon manufacturers,wholesalers, licensed compoundersor prescriptionsand persons prescribing such drugs, 8 basic responsibility for preventing the improper distributionof such drugs to the extent that such drugs are produced, handled, sold, or prescribedby them."
House Bill No. 

### 228,which amends Section 2 (8) of Article 

### 7264,lists thallium 8s a "dangerousdrug" and permits its saleby prescription.

While both the TeX86 Dangerous SubstancesAct and the Texas Dangerous Drug Act regulate the sale of thallium,we are of the opinion that the provisions of theActs regulating sales are not in conflict. The Acts are mutually exclusive. The two Acts regulate different 8reas of public health, and their provisions are enforcedby different State Agencies. The Texas Dangerous SubstancesAct prohibits the sale of mixtures or substances containingan excess of one per cent (1s)of thallium in containers suitable for or intended for household

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Dr. James E. Peavy, page 4 

### (C-507)

use. The Texas Dangerous Drug Act regulates the handling, sale, and distribution of "dangerousdrugs" for therapeutic purposesby prescription supervisionand 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 saleby prescription is not in conflictwith Article 

### 726-1,Section 

### 3 (a),Vernon's Texas Pen81 Code,which prohibits the sale of any mixture or substance~containingmore than one per cent (1s)of thallium, expressed as metallic thallium, in a container suitable for or intended for household use because such statutesare **laUtUally** exclusive and regulete differentareas 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

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