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- Hon. John Peterson County Attorney Potter County Amarillo, Texas Opinion No. V-1326 Re: Legality ofthe county nurse’s administering barbiturates to a county patient under orders ofthe physician employed by the county to care for its indigent patients subsequent tothe 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 tobarbiturates. The county nurse, under the orders ofthe 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 ata lower cost. There is on h&d. at present, approximately four months’ supply. The county nurse; under the direct supervision ofthe 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, inview ofSenate Bill 295, Acts 52nd Leg;;RS. 1951,ch. 413;p. 7587 T,hepertinent parts ofSetite Bill 295, supra. are as follows: “Sec. 3. The following acts, the failure to act as hereinafter set forth, and the causing ofany 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 tothe immediate container inwhich such drug is delivered’s, label bearing (A) the name and addressHon. John Peterson. page 2 (V-1326)

ofthe owner of the establishment from which such drug was delivered; (B) the date onwhich the prescription for such drug was filled; (C) the number ,ofsuch 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 ofthe drug as contained inthe prescription; or “(2) Such barbiturate is delivered by a practitioner inthe course of his practice and the immediate container inwhich such drug is delivered bears a label onwhich appears the directions for use of such drug, the name and address of such practitioner. the name and address ofthe 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 ofabarbiturate 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 itwas delivered tohim by the pharmacist or practitioner selling or dispensing the same; and any other possession ofabarbiturate shall be prima facie evidence of illegal possession.~” *a

. . . “Sec. 5. The provisions ofparagraphs (a (e) of Section 3shallnot be applicable: (a) tothand e delivery ofbarbiturates to persons included in any of the classes hereinafter named, or tothe agents or employees of such persons, for use in the usual course oftheir business or practice or in the performance of their official duties, as the case may be; or (b) tothe possession ofbarbiturates 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 forklawful administrationby practitioners; (5) Officers or employees,of Federal; State, or local Government; (6) Manufacturers and Nholesalers; (7) Carriers and Warehousemen.” Section 2ofthe Act defines “practitioner” as including a person licensed by the State Board of Medical Examiners.

Under the language of Section’5’ ofthe Act, ‘physicians and their agents or employees are exempt from the provisions of Section 3relating tothe delivery and possession ofbarbiturates. Since the county nurse received and possesses thebarbiturates for the purpose ofadministering them under the orders ofa physician, she is acting as his agent ,andcomes within the exemption of subdivision (2) of Section 5. Itis unnecessary for us to determine whether she is also exempt under other subdivisions ofthis section.

There~fore, it is our opinion that the possession ofthese barbiturates under the circumstances outlined inyour 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 ofthe physician employed by the countyto care for its indigent patients.

Inthis connection, we call your attention to the provision ofSection 6ofthe Act which reads:

“Persons (other than carriers) towhom the provisions of Section 5are applicable shall: (1) make a complete record ofall stocks ofbarbiturates onhand onthe effective date ofthis 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 tobarbiturates 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 ordersHon. John Peterson, page 4 (V-1326)

ofthe 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 ofbarbiturates. 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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