Honorable Bert Ford, Administrator

Texas Liquor Control Hoard Austin, Texas
Dear Sir: Opinion Ho. O-2668 Re: Authority under Texas. Liquor ControlAct to issue .medicinal pharmacy permit to a pharmacy which failed to secure renewal of its pharmacy permit until approximately twomonths after expiration of originalpermit. This will acknowledge receipt of your letter ofAugust 20, 1940, requesting an opinion from this department. It appears from the facts.stated inyour letter that the State Board of~Pharmacyissued a pharmticy permit to the Gentry Drug Company,which permit expired of its own terms on May 31, 1940.; For some reason the Gentry Drug Company did not seek the renewal of thispermit until July 25, 1940, approximately twomonths after the date of the expiration of the originalpermit. At this time the full year's permit fee of $2.00was pald,.and the State Board of Pharmacy issued a new permit purporting to be for the year beginningJune 1 and endingMay 31, l#l.

,Uponthis statement of facts,you askwhether the drug store in 1uestion is entitled,to receive a medicinal pharmacy permit un er the provisions of the Texas Liquor ControlAct. Article 666, Section 15, Subsection 18, Vernon's Penal Code, reads as follows:

"Medical Permits. Retail Pharmacists' shall be entitled to receivemedical permits and sell or dispense liquor for medical purposes only, The holders of such permits are authorized to purchase liquor from holders of wholesaler'spermits in this state. Any pharmacy for which a permit is sought must be. -

Honorable Bert'

Ford, page 2

a bona fjde~pha$macyregisteredwith the State Board of Pharmacy;must employ and have on duty at all times a registered pharmacist and must have been in operation as a pharmacy for at least two years In the particular political subdivision inwhich a permit is sought." When the statute speaks of an operation as @ p,harmacy for at least twoyears, it is clear that in leg* ative contemplationa legal rather than an unlawful ,A operatio for thatperiod of time is contemplated, 'And, as herd in our OpinionNo. O-2244; the statute contemplates that the operation aa a pharmscy'@hall be for at least twoyears next preceding the date on wh$ch the permit is sought.

Section 17 of Article 4542a,Revised Civil Statutes of Texas, requires that every person, firm or ,corporationdesiring to operate a retail pharmacy or drug store in this state, and every manufactur@r of drugs andmedicine, shall procure'from the State Board of Pharmacy a permit for each store to be operated, such permit to be Issued annuallyby the Board upon a receipt of proper application accompaniedby a fee of $2.00.

iUnder the facts stated, the drug store in question was operatircg:l'fdr almost twomonths in v elation of the provisions of Section 17 ofArticle 4542a,, Aevlsed Civil Statutes of Texas, inthat the originalpermit had expires and no renewalpermitwas issueduntil almost twomonths after the expiration.'

of the originalpermit. During this 'period. of time, the operation of theGentry Drug Store was not a lawful one. While~'itis true that the State Board of Pharmacy, in issuingthe renewalpermit onJuly 25,,sought to make it effective as of'June 1,preceding, in so,doing the State Board of Pharmacy exceeded108 authority under the law. The authority to operate a business affordedby a license dates from the issuance or delivery of the lib&se or permit. In the absence of statutory authority therefor, authorities chargedwith the duty of issuing licenses for the operation of certain businesses or professionshave no authorit to make them retroactive in effect. 37 Corpus Juris p.2 4.We t find no such statutory authority conferredupon theTexas Board of Pharmacyby the provisions of theAct in question.

For the reasons above,stated,you are advised that the Gentry Drug Store is not eligible under the provisions ofHonorable Bert Ford, page 3

Article 666, Section 15, Subsection 18, to receive a medicinal pharmacy permit.
Yours very truly
ATTORNEYGENERAL.OF TEXAS

By s/ R.,W Fairchild Rich&d W. Falrchild

Assistant APPROVEDAug. 31, 1940
Grover Sellers FirstAssistant Attorney General RWF:jm:bt