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 anew 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 adrug containing any narcotic which isbeing abused or may be abused may be put on the schedule of abused drugs by the State Board of Pharmacy. Such determination shall bemade only after ten (10)days notice ofhearing has been delivered to themanufacturer of such drug orpreparation and ahearing pursuant to such notice has been held. Appeals from the decision of the Board shall be in the samemanner as other appeals from action of the Board asprovided inSection 12 ofArticle 4542a, Vernon's Texas Civil Statutes.

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"(b) Inmaking thedetermination 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 itspharmacological effect, ifknown: "(3)the state of current scientific knowledge regarding the substance: "(4)thehistory and current pattern of abuse; "(5)the scope, duration, and significance of abuse; "(6) the risk to thepublic health: and "(7)thepotential 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 orpreparation which may, under the Federal Food, Drug, and Cosmetic Act and the law of this State, be lawfully sold over the counter without aprescription. "(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 ormay not be dispensed to an ultimate userwithout awritten or oralprescription, except when dispensed directly by apractitioner to an ultimate user. Such prescriptions may not be filled or refilled more than sixmonths after the date onwhich theywere issued orbe refilled more than five times after thedate of theprescription unless renewed by thepractitioner."

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We are also advised that your Committee has adopted Committee Amendments 1and 2. Committee Amendment No. 1 adds the following sentence to Section 16(d) of House Bill 166: "Therules and regulations promulgated hereunder shall innomanner be enforced by the imposition of anypenalties in Section 15hereof: 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 inSection 12ofArticle 4542a. for revocation, cancellation or suspension of licenses granted by such Board, and against non-licenses by injunction asprovided inSection 5ofArticle 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 aproposed Committee Amendment No. 3,which would strike the phrase "ora drug containing any narcotic" from Sub-section .(a)of Section 16, quoted supra. You have requested thatwe consider the effect of the aforementioned Committee Amendments and the proposed Committee Amendment inpreparing this opinion. Our initial comments will dealwith the bill in its present form, including Committee Amendments 1and 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 reMitchell, 109Tex. 11, 177 S.W. 953 (lgd. However, the Legislature possesses many powers thatmay be exercised by it either directly or through the agency of another body. Spears vs. San AntOniO, 110Tex. 618, 223 S.W. 166 (1920). If the Legislature has prescribed sufficient standards to guide the discretion conferred, the power isnot legislative and a delegation is lawful. When the Legislature cannot practically or efficiently perform the functions required, ithas the authority to designate

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some agency to carry out the purposes of such legislation. The general rule indetermining the validity of adelegated power is that the Legislature may declare thepolicy and fix theprimary standard. It may then confer on administrative officials the power to fill in the details by prescribing rules and regulations topromote 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 inmind, it is our view that House Bill 166does not convey an unconstitutional delegation of authority to the State Board of Pharmacy, in that the criteria tobe applied inplacing drugs upon the abused list are clearly set forth and are complete within themselves.
Inaddition toyour question as to the delegation of legislative function, you asked inyour opinion request whether theprovisions of theAct authorize the Board of Pharmacy to amend the Penal Code by regulation. You also asked whether the effect of House Bill 166would be to authorize the Board of Pharmacy tomodify or repeal Sections 8, 9and 23 ofArticle 72533,Vernon's Penal Code. After careful study, we are of theview that theprovisions of House Bill 166, as it ispresently 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 tomodify or repeal any sections ofArticle 725b,V.P.C. This problem apparently arises from the phrase "ora 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 tobe dispensed onprescription, or expressly exempt under Section 8, Article 725b. Therefore, if the Bill in itspresent 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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After making the express findings required in order to place a drug upon the abused list, the sanctions thatmay be impos'edby the State Board of Pharmacy are limited to administrative action against the license of apharmacist or injunctive action against anon-licensee. While we recognize that the problem is a serious one and that valid arguments exist on both sides of the question, we take theview that the exempt preparations listed in Section 8 ofArticle 725bhave 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 aparticular drug. Thus, in order toplace a drug upon the abused list the State Board of Pharmacy must make findings that are contrary to the reasons forwhich 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 byArticle 72533inany way. The sanctions thatmay be imposedby the State Board of Pharmacy are administrative innature and reflect a different aspect indealing with a complex problem.
You are'accordingly advised that it is the opinion of theAttorney General that House Bill 166, as submitted to this office, is constitutional. The proposed Committee Amendment 3,deleting the phrase "ora drug containing any narcotic",if adopted, would have the effect of limiting the scope of House Bill 166 to new drugs only, andwould remove anypresent discussion as to the possible effects ofplacing an exempt drug upon the abused list. Inview of our discussion above, it isour opinion that Committee Amendment No. 3 isnot 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 -4271-. _

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Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman
PatBailey LarryCraddock Wardlow Lane RexWhite,Jr.

MEADE F, GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant (M-875)

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