The Attorney General of Texas 

December 17, 1981 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin, TX. 78711 

5121475-2501 

Telex 9101874-1367 

Telecopier 51214750268 

1807 Main St., Suite 1400 

Dallas. TX. 75201 

214l7428944 

4824 Alberta Ave.. Suite 160 

El Paso, TX. 79905 

915/533-34S4 

1220 Dallas Ave.. Suite 202 

Houston. TX. 77002 

713/8500888 

SC6 Broadway, Suite 312 

Lubbock. TX. 79401 

W&747-5238 

4309 N. Tenth, Suite 6 

McAlle”, TX. 78501 

512B82-4547 

2M) Main Plaza. Suite 400 

San Antonio, TX. 78205 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employa 

Mr. Fred S. Brinkley, Jr. 

Executive Director/Secretary 

Texas State Board 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 

Pharmacy Act 

Dear Mr. Brinkley: 

You have asked several questions concerning the interpretation of 

the recently enacted article 4542a-1, V.T.C.S., Texas Pharmacy Act, 

Acts 1981, Sixty-seventh Legislature, chapter 255, at 638. 

We note, at the outset, that the act deals with two separate and 

distinct licenses -- the license of the pharmacist and the license of 

the pharmacy. 

A license to operate a pharmacy is'= restricted to licensed 

pharmacists. Any individual or entity may apply for a license to 

~operate a 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 

prescription drugs unless he is a licensed pharmacist or is authorized 

by the act to dispense or distribute prescription drugs. 

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 other person 

licensed or registered to distribute or dispense a 

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 

p. 1397 
Mr. Fred S. Brinkley, Jr. - Page 2 (Mw-410) 

which, under Texas law, licensees in this state 

-Y legally prescribe dangerous drugs. 

'Practitioner' does not include a person licensed 

under this Act. (Emphasis added). 

Section 19(c) provides that a practitioner who supplies his own 

patients with drugs is not engaged in the practice of pharmacy, ~0 

long as such practitioner does not operate a pharmacy for the 

retailing of prescription drugs. 

Thus, it seems clear, at this point, that it is the intent of the 

act to preclude all but licensed pharmacists from dispensing 

prescription drugs, except that a practitioner may supply prescription 

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 

practitioner must be licensed as a pharmacist under this act. 

You ask: 

May a practitioner operate a licensed 

pharmacy without employing a 'pharmacist or 

pharmacist-in-charge of the pharmacy? 

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 

designating a pharmacist-in-charge who is a licensed pharmacist. 

You next ask: 

May a practitioner dispense prescription drugs 

from a licensed pharmacy pursuant to a lawful 

prescription order of another practitioner? 

The dispensing of prescription drugs is the practice of pharmacy, 

unless such dispensing occurs under the very narrow exception allowed 

a practitioner. A practitioner who dispenses or provides drugs 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 

latter practitioner is engaging in the practice of pharmacy. 

p. 1398 
Mr. Fred S. Brinkley, Jr. - Page 3 (IS+410) 

We conclude, therefore, that a practitioner may not fill a 

prescription upon the order of another practitioner, since this would 

constitute the practice 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 of medical services, 

is he operating a pharmacy? 

We answer in the affirmative. Section 5(28) defines "pharmacy" 

as "a facility where 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 practitioner engages in the "practice of pharmacy." Cf. Attorney 

General Opinion V-1284 (1951) (physician could not 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 appropriate state board who supplies his patients with drugs in 

a manner authorized by state or federal law and who does not operate a 

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 

physician who charges a separate fee for dispensing drugs 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 statutory definition. A physician may, however, administer 

drugs directly to his patients, see sections 5(2), 19(d), and we 

believe he may make a separate charge for so doing without engaging in 

the practice of pharmacy. 

You next ask: 

Is a written prescription for a dangerous 

drug or controlled substance lawful if it does not 

contain two signature lines for the physician to 

sign as prescribed by section 40(g) of the Texas 

Pharmacy Act? 

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 

provides as follows: 

p. 1399 
Mr. Fred S. Brinkley, Jr. - Page 4 (MW-410) 

(g) No written prescription may be dispensed 

unless it is ordered on a form containing two 

signature lines of equal prominence, side-by-side, 

at the bottom 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 

pharmacist by 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 

is permitted. No prescription form furnished by 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 Authority v. City of Graham, 354 S.W.2d 99 (Tex. 1961). It is 

our conclusion, therefore, that after January 1. 1982. a written 

prescription may 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 

operate unless there is a pharmacist-in-charge who 

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 practitioner who dispenses drugs 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 

form which meets the requirements of section 40(g) 

of the act. 

p. 1400 
Mr. Fred S. Brinkley, Jr. - Page 5 (MW-410) 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICRARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Robert Gauss 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Robert Gauss 

Rick Gilpin 

Jim Moellinger 

p. 1401