# The Attorney General of Texas

December 17, 1981 MARK WHITE Attorney General

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An Equal Opportunity/ Affirmative Action Employa Mr. Fred S. Brinkley,Jr. ExecutiveDirector/Secretary Texas StateBoard of Pharmacy 211 East 7th Street, Suite 1121 Austin, Texas 78701 Opinion No.~~+,$l0
Re: Co"str"ctio" of House Bill No. 1628, the Texas PharmacyAct
DearMr. Brinkley:
You have asked several questions concerning the interpretationof the recently enacted article 4542a-1, V.T.C.S., Texas Pharmacy Act, Acts 1981, Sixty-seventhLegislature, chapter 255, at 638.
We note, at the outset, that the act dealswith two separate and distinct licenses -- the license of the pharmacist and the licenseof thepharmacy.
A license to operate a pharmacy is'= restricted to licensed pharmacists. Any individual or entity may apply for a license to ~operatea pharmacy; section 30 of the act simply requires that the applicant for a license to operate a pharmacy furnish certain information, including the pharmacist license number of each pharmacist employed by the pharmacy and the license number of the pharmacist-in-charge. Sections 5(25) and (26). respectively,define the terms "pharmacist"and "pharmacist-in-charge." "Practice of pharmacy" is defined in section 5(29) to include dispensing drugs and devices which require a prescription. Section 19(a) makes it unlawful for a person to dispense or distribute prescriptiondrugsunlesshe is a licensedpharmacistor is authorized by the act to dispenseor distributeprescriptiondrugs. The principal class authorized by the act to dispense drugs without being a licensed pharmacist is the "practitioner." "Practitioner"is defined in section 5 as follows:

(30) "Practitioner" means a physician, dentist,podiatrist,veterinarian,or otherperson licensedor registered to distributeor dispensea prescription drug or device in the course of professional practice in this state or a person licensed by another state in a health field in

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which, under Texas law, licensees in this state -Y legally prescribe dangerous drugs. 'Practitioner'does not include a person licensed under thisAct. (Emphasisadded). Section 19(c) provides that a practitionerwho supplieshis own patients with drugs is not engaged in the practice of pharmacy, ~0 long as such practitioner does not operate a pharmacy for the retailingof prescriptiondrugs. Thus, it seems clear, at thispoint, that it is the intentof the act to preclude all but licensed pharmacists from dispensing prescriptiondrugs, except that a practitionermay supplyprescription drugs to his own patients. When the practitioner supplies his own patients he is not regarded as practicing pharmacy. However, if a practitioner exceeds the very narrow exception provided him in the act, and is. in fact, engaged in the practice of pharmacy, such practitionermust be licensedas a pharmacistunder thisact.
You ask: May a practitioner operate a licensed pharmacy without employing a 'pharmacist or pharmacist-in-chargeof thepharmacy?
As previously stated, any entity may be licensed to operate a pharmacy; however, no pharmacy may be operated unless there is a pharmacist-in-charge of the operation who must be a licensed pharmacist. Since section 30(b)(4) requires that the applicant for a pharmacy license designate on the application the name and pharmacist license number of the pharmacist-in-charge of the pharmacy, it necessarily follows that, unless there is a pharmacist-in-charge,the pharmacy may not legally operate. We therefore conclude that a practitioner may not operate a pharmacy without employing and designatinga pharmacist-in-chargewho is a licensedpharmacist.
You next ask: May a practitioner dispense prescription drugs from a licensed pharmacy pursuant to a lawful prescriptionorder of anotherpractitioner? The dispensingof prescriptiondrugs is thepracticeof pharmacy, unless such dispensingoccurs under the very narrow exceptionallowed a practitioner. A practitionerwho dispensesor providesdrugs to his own patients is not, by definition, engaged in the practice of pharmacy. However, if a practitioner lawfully prescribes drugs for his patients and another practitioner fills this prescription, the latterpractitioneris engaging in the practice of pharmacy.

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We conclude, therefore, that a practitioner may not fill a prescriptionupon the order of another practitioner, since thiswould constitutethepractice of pharmacy.
You ask: If a practitioner dispenses prescription drugs from his office and charges a fee for the drugs that is separate from the fee ofmedical services, ishe operatinga pharmacy?
We answer in the affirmative. Section 5(28) defines "pharmacy" as "a facilitywhere the practice of pharmacy occurs." Section 5(29) defines the "practice of pharmacy" as including the offering or performing of "services and transactions necessary to operate a pharmacy." Where a fee separate from the practitioner's fee for medical services is charged for the dispensing of drugs, we believe the practitionerengages in the "practice of pharmacy." Cf. Attorney GeneralOpinionV-1284 (1951) (physiciancouldnot dispens~edication for which separate fee was charged prior to Pharmacy Act amendment authorizing physician to operate a dispensary). Section 19(c) provides that the statute "does not apply to a practitioner licensed by the appropriatestateboardwho supplieshis patientswith drugs in a manner authorizedby state or federal law andwho doesnot operatea pharmacy for the retailing of prescription drugs." A "retail" sale has been defined as a sale directly to the ultimate consumer. Websters Third International Dictionary at 1938; see White Motor Company V. Littleton, 124 F2d 92 (5th Cir. 1941). We believe a physicianwho charges a separate fee for dispensingdrugs to a patient for self-medication engages in the retailing of drugs. When a physician retails drugs, he is engaging in the practice of pharmacy within the statutorydefinition. A physicianmay, however,administer drugs directly to his patients, see sections 5(2), 19(d), and we believehe may make a separate charge for so doingwithout engaging in the practiceof pharmacy.
You next ask:

Is a written prescription for a dangerous drug or controlledsubstance lawful if it doesnot contain two signature lines for the physician to sign as prescribed by section 40(g) of the Texas PharmacyAct? Section 40 of the act takes effect January 1, 1982. Texas Pharmacy Act, Acts 1981, 67th Leg., ch. 255, sec. 45(b), at 663. It providesas follows:

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(g) No written prescriptionmay be dispensed unless it is ordered on a form containing two signaturelines of equal prominence, side-by-side, at thebottom of the form. Under either signature line shall be printed clearly the words 'product selectio" permitted,' and under the other signature line shall be printed clearly the words 'dispense as written.' The practitioner shall communicate dispensing instructions to the pharmacistby signing on the appropriate line. If the practitioner's signature does not clearly indicate that the prescription must be dispensed as written, generically equivalent drug selection ispermitted. No prescription form furnishedby a practitioner shall contain a preprinted order for a drug product by brand name, generic name, or manufacturer.
We see no room for interpretation of this section. There is no ambinuitv. The mandate of the statute is clear and uneauivocal 'and therefore.must be enforced according to its specific terms. Brasos River Authorityv. City of Graham, 354 S.W.2d 99 (Tex. 1961). It is our conclusion, therefore, that after January 1. 1982. a written prescriptionmay not be dispensed unless it is-on a form as required by the act. Since your remaining questions are predicated upon an affirmative answer to the preceding question, they need not be answered.
SUMMARY'

A "practitioner" may not practice pharmacy unless he is also licensed as a pharmacist under this act. No licensed pharmacy may legally operateunless there is a pharmacist-in-chargewho is a licensed pharmacist. A practitioner who undertakes to fill a prescription of another practitioner engages in the practice of pharmacy, which he may not do unless licensed as a pharmacist. A practitionerwho dispensesdrugs to his own patients from his office, and charges a separate fee therefor, is engaged in the practice of pharmacy,which he may not do unless licensed as a pharmacist. After January 1, 1982, no written prescription is lawful unless it is on a formwhich meets the requirementsof section40(g) of the act.

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MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General
RICRARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Robert Gauss AssistantAttorney General
APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible RobertGauss Rick Gilpin Jim Moellinger

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