Honorable Don Kennard 

Chairman, Senate Committee 

on Public Health 

State Capitol 

Austin, Texas 

Opinion No. M-875 

Re: Constitutionality of 

House Bill 166, 62nd Leg., 

Regular Session, relating 

to the establishment of a 

schedule of abused drugs 

by rule and regulation of 

the State Board of Pharmacy, 

and the dispensing of 

abused drugs. 

Dear Senator Kennard: 

You have requested the opinion of this office as to the 

constitutionality of House Bill 166, which would amend 

Article 726d. Vernon's Penal Code, the Texas Dangerous Drug 

Act, by adding a new section which reads as follows: 

"Section 16. (a) The said Board of Pharmacy 

shall establish a schedule of abused drugs in 

conformity with the schedules set out in the 

Federal Comprehensive Drug Abuse Prevention 

and Control Act. Any new drug or a drug containing any narcotic which is being abused or 

may be abused may be put on the schedule of 

abused drugs by the State Board of Pharmacy. 

Such determination shall be made only after 

ten (10) days notice of hearing has been delivered 

to the manufacturer of such drug or preparation 

and a hearing pursuant to such notice has been 

held. Appeals from the decision of the Board 

shall be in the same manner as other appeals from 

action of the Board as provided in Section 12 

of Article 4542a, Vernon's Texas Civil Statutes. 

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Honorable Don Kennard. Page 2 (M-875) 

"(b) In making the determination regarding 

the drug, the State Board of Pharmacy shall consider the following: 

"(1) the actual or relative potential for 

abuse: 

"(2) the scientific evidence of its pharmacological effect, if known: 

"(3) the state of current scientific 

knowledge regarding the substance: 

"(4) the history and current pattern of abuse; 

"(5) the scope, duration, and significance 

of abuse; 

"(6) the risk to the public health: and 

"(7) the potential of the substance to 

produce psychic or physiological dependence 

liability. 

"(c) The Board shall not place on the schedule 

of abused drugs any non-narcotic drug or preparation 

which may, under the Federal Food, Drug, and Cosmetic 

Act and the law of this State, be lawfully sold 

over the counter without a prescription. 

"(d) Any drug placed on the schedule of abused 

drugs by the State Board of Pharmacy may not be 

sold or dispensed except under the rules and regulations provided by the Board or may not be dispensed to an ultimate user without a written or 

oral prescription, except when dispensed directly 

by a practitioner to an ultimate user. Such prescriptions may not be filled or refilled more 

than six months after the date on which they were 

issued or be refilled more than five times after 

the date of the prescription unless renewed by 

the practitioner." 

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Honorable Don Kennard, Page 3 (M-875) 

We are also advised that your Committee has adopted 

Committee Amendments 1 and 2. Committee Amendment No. 1 

adds the following sentence to Section 16(d) of House Bill 

166: 

"The rules and regulations promulgated hereunder shall in no manner be enforced by the 

imposition of any penalties in Section 15 hereof: 

any violation of such rules and regulations may 

be enforced by the Board of Pharmacy against any 

licensee of that Board in the same manner as 

provided in Section 12 of Article 4542a. for revocation, 

cancellation or suspension of licenses granted by such 

Board, and against non-licenses by injunction as provided in Section 5 of Article 4542a." 

Committee Amendment No. 2 strikes the phrase "non-narcotic" 

from Sub-section (c) of Section 16, quoted supra. 

We are also advised that your Committee has under consideration a proposed Committee Amendment No. 3, which would 

strike the phrase "or a drug containing any narcotic" from 

Sub-section .(a) of Section 16, quoted supra. 

You have requested that we consider the effect of the 

aforementioned Committee Amendments and the proposed Committee Amendment in preparing this opinion. 

Our initial comments will deal with the bill in its 

present form, including Committee Amendments 1 and 2. It is 

a general rule that the Legislature may not delegate its 

legislative powers, except as expressly permitted in the 

Constitution, and any attempt to commit those powers to 

another agency is invalid. In re Mitchell, 109 Tex. 11, 177 

S.W. 953 (lgd. However, the Legislature possesses many powers 

that may be exercised by it either directly or through the 

agency of another body. Spears vs. San AntOniO, 110 Tex. 

618, 223 S.W. 166 (1920). If the Legislature has prescribed 

sufficient standards to guide the discretion conferred, the 

power is not legislative and a delegation is lawful. When 

the Legislature cannot practically or efficiently perform 

the functions required, it has the authority to designate 

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Honorable Don Kennard, page 4 (M-875) 

some agency to carry out the purposes of such legislation. 

The general rule in determining the validity of a delegated 

power is that the Legislature may declare the policy and fix 

the primary standard. It may then confer on administrative 

officials the power to fill in the details by prescribing 

rules and regulations to promote the spirit of the legislation and to carry it into effect. Marqolin v. State, 205 

S.W.Zd 775 (Ct.Crim.App., 1947). 

With the foregoing principles in mind, it is our view 

that House Bill 166 does not convey an unconstitutional 

delegation of authority to the State Board of Pharmacy, in 

that the criteria to be applied in placing drugs upon the 

abused list are clearly set forth and are complete within 

themselves. 

In addition to your question as to the delegation of 

legislative function, you asked in your opinion request 

whether the provisions of the Act authorize the Board of 

Pharmacy to amend the Penal Code by regulation. You also 

asked whether the effect of House Bill 166 would be to 

authorize the Board of Pharmacy to modify or repeal 

Sections 8, 9 and 23 of Article 72533, Vernon's Penal Code. 

After careful study, we are of the view that the provisions 

of House Bill 166, as it is presently constituted, do not 

authorize the State Board of Pharmacy to amend any portion 

of the Penal Code by regulation, and, specifically, this 

Bill does not delegate authority to the said Board to modify 

or repeal any sections of Article 725b, V.P.C. This problem 

apparently arises from the phrase "or a drug containing any 

narcoticw, contained in the second sentence of the new Section 16(a) of House Bill 166. All presently existing drugs 

containing narcotics are either prohibited, required to be 

dispensed on prescription, or expressly exempt under Section 8, 

Article 725b. Therefore, if the Bill in its present form is 

valid, the Board of Pharmacy would apparently be authorized 

to impose an additional regulation upon the drugs that are 

listed as exempt in the aforesaid Section 8. 

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Honorable Don Kennard, page 5 

After making the express findings required in order to 

place a drug upon the abused list, the sanctions that may be 

impos'ed by the State Board of Pharmacy are limited to administrative action against the license of a pharmacist or injunctive 

action against a non-licensee. While we recognize that the 

problem is a serious one and that valid arguments exist on 

both sides of the question, we take the view that the exempt 

preparations listed in Section 8 of Article 725b have been 

so exempted because of the unlikelihood of such preparations 

being abused and their value as easily accessible household 

remedies. Four of the required findings by the Board deal 

with actual abuse being made of a particular drug. Thus, in 

order to place a drug upon the abused list the State Board of 

Pharmacy must make findings that are contrary to the reasons 

for which the particular preparations were initially placed 

on the exempt list. Further, the authority that could be 

exerted by the State Board of Pharmacy under House Bill 

166 could not have the effect of increasing or decreasing 

the felony penalties that are imposed by Article 72533 in any 

way. The sanctions that may be imposed by the State Board 

of Pharmacy are administrative in nature and reflect a 

different aspect in dealing with a complex problem. 

You are'accordingly advised that it is the opinion of 

the Attorney General that House Bill 166, as submitted to 

this office, is constitutional. 

The proposed Committee Amendment 3, deleting the phrase 

"or a drug containing any narcotic",if adopted, would have 

the effect of limiting the scope of House Bill 166 to new 

drugs only, and would remove any present discussion as to the 

possible effects of placing an exempt drug upon the abused 

list. In view of our discussion above, it is our opinion 

that Committee Amendment No. 3 is not essential to the constitutionality of House Bill 166. 

SUMMARY 

House Bill 166, 62nd Legislature, Regular 

Session, as amended by Committee Amendments 1 

and 2, is constitutional. 

Attorney General of Texas 

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Hon. Don Kennard, page 6 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Pat Bailey 

Larry Craddock 

Wardlow Lane 

Rex White, Jr. 

MEADE F, GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

(M-875) 

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