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Hon. John Peterson 

County Attorney 

Potter County 

Amarillo, Texas 

Opinion No. V-1326 

Re: Legality of the county nurse’s 

administering barbiturates to 

a county patient under orders 

of the physician employed by 

the county to care for its indigent patients subsequent to the 

enactment of Senate Bill 295, 

Dear Sir: Acts 52nd Legislature. 

Your request for our opinion is substantially as follows: 

The Walker Convalescent Home, operated by Fotter County, is caring for a county patient who is addicted to barbiturates. The county nurse, under the 

orders of the physician employed’by the county to administer to its indigent patients, has been purchasing 

these barbituratesthrough a wholesale drug house in 

order to obtain them at a lower cost. There is on 

h&d. at present, approximately four months’ supply. 

The county nurse; under the direct supervision of the 

physician employed by the county to care for its indigent patients, has been administering the barbiturates to the patient. Is it legal for the county nurse 

to continue to give these barbiturates, under the doctor’s orders, in view of Senate Bill 295, Acts 52nd 

Leg;;RS. 1951, ch. 413; p. 7587 

T,he pertinent parts of Setite Bill 295, supra. are as follows: 

“Sec. 3. The following acts, the failure to act as 

hereinafter set forth, and the causing of any such act 

or failure are hereby declared unlawful except as provided in SeCtion 4: 

“(a) The delivery of any barbiturate unless: 

“( 1) Such barbiturate is deR%ered bp,a pharmacist, upon an original prescription, and tEere is affixed to the immediate container in which such drug 

is delivered’s, label bearing (A) the name and address 
Hon. John Peterson. page 2 (V-1326) 

of the owner of the establishment from which such 

drug was delivered; (B) the date on which the prescription for such drug was filled; (C) the number 

,of such prescription as filed in the prescription 

files of the pharmacist who filled such prescription; (D) the name of the practitioner who prescribed such drug; (E) the name and address of 

the patient, and if such drug was prescribed for 

an animal, a statement showing the species of 

the animal; and (F) the directions for use of the 

drug as contained in the prescription; or 

“(2) Such barbiturate is delivered by a practitioner in the course of his practice and the immediate container in which such drug is delivered 

bears a label on which appears the directions for 

use of such drug, the name and address of such 

practitioner. the name and address of the patient, 

and, if such drug is prescribed for an animal, a 

statement showing the species of the animal. 

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. . . 

“(e) The possession of a barbiturate by any 

person unless such person obtained the drug under 

the specific provision of Section 3a (1) and (2) of 

this Act and possesses the drug in the container 

in which it was delivered to him by the pharmacist 

or practitioner selling or dispensing the same; and 

any other possession of a barbiturate shall be prima facie evidence of illegal possession.~” 

*a 

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“Sec. 5. The provisions of paragraphs (a 

(e) of Section 3 shallnot be applicable: (a) to t h 

and 

e delivery of barbiturates to persons included in any of 

the classes hereinafter named, or to the agents or 

employees of such persons, for use in the usual 

course of their business or practice or in the performance of their official duties, as the case may be; 

or (b) to the possession of barbiturates by such persons or their agents or employees for such use: 

(1) Pharmacists; 

(2) Practitioners; 

(3) Persons who procure barbiturates (A) for disposition by or under the supervision of pharmacists or practitioners employed by them; or (B) for the purpose of lawful research, teaching, or testing, and not for resale; 

^. 
Hon. John Peterson, page 3 (V-1326) 

(4) Hospitals ‘and other institutions which procure 

barbiturates fork lawful administrationby practitioners; 

(5) Officers or employees,of Federal; State, or 

local Government; 

(6) Manufacturers and Nholesalers; 

(7) Carriers and Warehousemen.” 

Section 2 of the Act defines “practitioner” as including 

a person licensed by the State Board of Medical Examiners. 

Under the language of Section’5’ of the Act, ‘physicians 

and their agents or employees are exempt from the provisions 

of Section 3 relating to the delivery and possession of barbiturates. Since the county nurse received and possesses the barbiturates for the purpose of administering them under the orders of a physician, she is acting as his agent ,and comes within 

the exemption of subdivision (2) of Section 5. It is unnecessary 

for us to determine whether she is also exempt under other subdivisions of this section. 

There~fore, it is our opinion that the possession of these 

barbiturates under the circumstances outlined in your letter is 

not illegal and that the county nurse may continue to purchase 

and administer barbiturates to a patient in a county institution 

under direct supervision of the physician employed by the county to care for its indigent patients. 

In this connection, we call your attention to the provision of Section 6 of the Act which reads: 

“Persons (other than carriers) to whom the provisions of Section 5 are applicable shall: (1) make a 

complete record of all stocks of barbiturates on hand 

on the effective date of this Act and retain such record 

for not less than two (2) calendar years immediately 

following such date; and (2) retain each commercial or 

other record relating to barbiturates maintained by them 

in the usual course of their business or occupation, for 

not less than two (2) calendar years immediately following the date of such record.” 

SUMMARY 

A county nurse who administers barbiturates to 

an indigent patient in a county institution ,under orders 
Hon. John Peterson, page 4 (V-1326) 

of the physician employed by the county to care for 

its indigent patients is exempt from the provisions 

of Section 3, S.B. 295, Acts 52nd Leg., R.S. 1951,~ 

ch. 413, p. 758, relating to unlawful delivery and 

possession of barbiturates. 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DANIEL 

Attorney General 

Jesse P. Luton, Jr. 

Reviewing Assistant 

Everett Hutchinson 

Executive Assistant 

Assistant 

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