**PHIOE XBASXEL**  **Aunms I**  **I.** **-.r*:s.\n**

**LIIIm.SvTV**

**. ‘** **w?X~Y_,~** September 13, 1951

Hon. Buster Brown OpinionNo. V-1284 **Secretary** Texas Board of Pharmacy Re: Whether physiciansor Temple, Texan hospital or clllllcdispensarleamay dispense medications for a separate fee without a permit and without being
or retaining a licensed pear Sir: pharmaciet.

You have requested our opinion on the following QuestionspertaMng to the Texas Pharmacy Act (Art. 4542a, V.C.S.), aa amended by Seaate Bill 268, Acts 52nd Leg., R.S. 1951, ch. 469, p. 824:

#l. May a physician dispensemedication for which a separate fee from hIa

En rofeaelonal services is charged and not included under the licensing section of the law?

'2. Can the dlepeneary of a hospital
or clinic furnish medicationat a aeparate fee for persona not patients without hiring a pharmacist and obtaininga **per** mit?

-3. Under terms of the fourth paragraph of Article 7588. Vernon!8 Penal Code, 1s not the dispensing of drugs limited to a licensed pharmaclatwhether the dispensary la a retail drug store or a hospital or clinic dispensary?"
Section 8 of Ari;Icl.e 4542a a8 amended by Senate Bill 268, sunra, provides:

#It shall be ~~l:twl~ul for sny person who 18 not a rcglstered pharmacist under the provlslon:: of thla Act to compound, mix. manufacture, combine, prepare, label. sell, or dietribute at re-Hon. Buster Brown, page 2 (V-1284)

tail or wholesale any drugs or medicines, except In originalpackages. Provided that all persons now registeredas pharmacists in this State shall have all rights granted to pharmacistsunder this Act: provided,however, that nothlrgln this Act shsll apply to or interfere with licensedpractitionersof medicine, dentlstry or chiropody, who ie duly registered as such by his respectiveState Board of Examiners of this State and no

shall be construeh~ to restrain a bona fide hospital or clinic from operating
a dispensaryor apothecary shop In order to provide services to its patients. Provided further, that nothing contained in this Act shall be construed to prevent the personal admfnistratlon of drugs and medicines carpiedby any physician, surgeon,dentist, chiropodistor veterinarian licensedby his respectiveBoard of Examiners of this State, in order to supply the needs of his patients:nor to prevent the sale by **peraone,** firms, joint stock companies,partnershipsor corporations, other than registeredpharmaclete, of patent or proprietary medicines, or remedies and medicaznents generally in
use and which are harmless lf used according to instructions as contained upon the printed label: and insecticides and fungicidesand chemlcalsueeQ in the arte, when properly labeled:nor lneecticldes or fungicides that are mixed **or** compoundedfor purely agriculturalpurpoeee.” (Underscoring supplied.)
Prior to the above amendment,a physician could not operatea retail drug store or dispense medicationfor any person except his own patients unlesshe was a registeredpharmacisthimself or had one continuallyemployed therein. However, the underscored

provlslon of the Act as amended clearly authorizes

a physician to dispensemedicationforHon. Buster Brown, page 3 (V-1284)

persona other thanhla patients. Since Section 8 of the Act provides that no provisions of the Act shall be construedto restrain physicians from operatinga dispensary,prescriptionlaboratory,
or apothecaryshop, it is our opinion that a phgslclan cannot be required to obtain a pharmacist's license in order to dispense medicationsfor which
a fee separate,from his professionalservices Ia charged. Any other construction would be contrary to the plain provisions of Section 8.

Sections 17 and 19. Article 4542a, V.C.S., as amended,'providet

'Section 17. Every pereon. firm, joint stock company,partnershipor corporationdesiring to operate a retall pharmacy,drug store, dispensary,
or apothecary shop in thla State, as the same is defined herein; and every manufacturerof drugs and msdlclnee,
as definedherein, after the passage of this Act, shall procure from the State Board of Pharmacy a permit for each store or factory to be operated by making an applicationto the Board,, upon a form to be furnishedby the Board, setting forth under oath ownership and location,and the name and certificate

number of \the

pharmficlst registered in this State who is to be continuallyemployed by the drug store or pharmacy, or the pharmaceutical chemist or chemist qualifiedby aclentlflc training,who Ia to be employed by the factolyormanufacturer;provided that the Boara~may in lta diacretlon refuse to lseue such permit to such applicantunless furnished with satisfactoryproof that such applicant 16 engaged in the business of conductinga pharmacy,drug store, dldpenaary,apothecary ehop or factory for the purpose of manufacturingdrugs.
*Provided further, that at any time after the laauance of a permit by the State Board of PhamPacy to such applicant, the Board may revoke,suependHon. Buster Brown, page 4 (V-1284)

or cancel the permit when satisfactory proof has been preeented to the Board that said permit holder 18 not conducting a bona fide pharmacy, drug store, dispensary,apothecary shop or preecrlptlon laboratory,and any inspector,membelr, or official of the Board la hereby empowered to take charge of such permit pending final hearing before the Board, as to the revocation of same. The permit provided for herein shall be lasued annually by the Board upon receipt of pop- ~~~g;~yg,B,~~yg z&yy;, be displayed conspicuously at all times in the pharmacy, drug store, dispensary, apothecaryshop OT factory to which it ia issued.

“All such permits shall expire on May 31at of each year and must be renewed on or before June 1st of each year. -Very pemon, firm, joint stock company,partnerahlp,corporationor manufacturerdeslHng to open a new pharmacy,drug &ore, dispensary,apothecary shop, or factoryahallprocure the permit above mentioned before beginning its operationas such; and the same discretionary

powers may be used by the Board ln passing u not more than one Pon 1) such applications; etore or factory may be operatedunder one (1) permit.

“In case of a change in pereonnel of registeredpharmaclete,the Board shall be notified of such changewlthln tea (10) days ; provided the same pharmacl&i’s name shall not appeal? on more than oae (1) permit.
‘Provided however, that no proolslon of this Act shall be construed to apply to any hospital or cllnlc malntalnlng‘3roperatinga dispensary, apothecary shop or preecrlptlonlaboratory for the care of its patientsHon. Buster Brown, page 5 (V-1284)

as long as a licensedpharmacistIs continuallyemployed to compound said prescriptlona.
“section lg. A P~==cY, drug atore, dlapeneary,apothecaryshop, or preecrlptlonlaboratory,as used in this Act, is any atore or place where drugs or msdlclnee are sold or furnished In any manner at retail or for a fee to the consumerwherein a registeredpharmacist is employed. “Provided,however, that no provision of thla Act shall be construed to apply to any hospital or clinic maintaining **or** operatinga dlapeaaary, apothecaryahop or prescriptionlaboratory for the care of lta patleats
aa long ae a licensedpharmacistis continuallyeqloyed to compound said prei3criptloaa.

There is nothiqln the Act which exempta phyalclansfrom the provlalons of Section 17, which requires every pereon who operatesa drug store to secure a permit f’rcun the State Board of Pharmacy. Therefore,it Is our opinion that a physicianmay not dispensemedlcaton fur which a fee separate from his’

professionalservices la chargedwithout first obtaininga permit.

Although Section 8 of the Act provia& that. *no, provlslon of the Act shall be construed to restrain a boaa ride hospital or clinic from operatinga aispeaeary or apothecary shop in order to provide services to its patlenta,Yboth Sections 17 and 19 provide that a registeredpharmacist must be continuallyemp1oye.Q. to compound the preecrlptiona.,

In view of the foregoing, It la our oplnion that the dispensary of a hospital or clinic muet continuallyemploy a pkirmaclat to Oomp0~a the preecrlptlone

and may not mnleh medication to **persqps other**  than patients for a separate fee without obtaining a permit.

Sec.tlaol

21 ‘ofthe PharmacyAct, codified
ae Article 758a, V.P.C., was not amended by Senate Bill 268, eupra. Article 758a, as amended la 1943, provides in part:

### 354 Hon. Buster Brown, page 6 (v-1284)

'Any peraon not being licensedaa~ a pharmaclet

who shall compound,mix

., blend, dispense,prepare or sell at retail any drug6 medicines poisons or pharmaceutical

preparations

upon a physlclan'eprescription.or otherwise' and whoever being the man&g&r or owner of the drug store, pharmacy or factory 01 other place of buslnesa Shall manufacture,or permit anyone not lltensed as a pharmacletto compound,mix, blend, dispense any drugs, medicinea, poisons or pharmaceutical preparations,
on phyelclan'sprescription,contrary to any of the pro~lsio~ of this Act, ahall be subject to the penalties of thle Act." ObviouslyArticle &42a,V.C.S., ae amended and Article 7!j8a,

V.P.C., are now in conflict lneofar aa they apply to phyalclana. In Po e&$2;;:. 615, 51 S-W. 26 680,

'As to tb questionwhether the act of 1931 repeals the act of 1930, we are of the oplnlonthatltdoes. In tbls connectloaIt will be noted that the act of 1931 ie a later aot, and, In 80 far aa prescribing the terms of office ia coacerned, it absolutely conflictswith the 1930 act. The former act fixes the term of office at four yeare, while the latter act fixes such term at two years. The act of 1931 does not mention that of 1930 but in 80 far a8 the term of office is concerned,the two acts are abaolutelyantagonisticto each other. It follows that the latter act repeals the former by lmpllcation.*
Also see Parehall Q. State, 62 TOX. 0ri.m. 177, 138 S.W. 759 n911) Robertson Q. State, 70 Tex. Crlm. 307, 159 S.W.;7-] Towneeaa v. Terrell, 118 Tex. 463, 16 S.W.2d 10:3=9J1 %ate
v. ou &western Qas 8 Electric Oompan& 145 Ter Att'y Gen. Ops. v-990., . .

**Eon.** Buster BWn,.'page 7 (V-1284) 

### 33.55

Article &542a, V.C.S., as amended,having been passed subsequentto Article 758a,V.P.C., vi11 control. Therefore, it Is our opinion that under the terms of SenateBIll268, supra, licensed practltlonersof mecllcine, dentistry,or chlropoily,
are exempt from the provision of Article '@a vhich states that any person not licensedas a pharmacistwho doea any of the enumeratedacts shall be subject to a penalty.

A physicianmay dispensemedication for which a separate fee from his professlonal services Is chargedwithout obtaininga license to practice pharmacy, but he may not do SO without obtaining a permit as required by Section 17 of Artlole 4542a,V.C.S.
The aiapeneary of a hospital or clinicmust continuallyemploy a pharmacist to 00mp0una prescriptions ana may not furnishmedication for a separate ree to persons ottir than patients vlthout obtaininga permit.

Senate Bill 268, Acts 52na Leg., R.S. 1951, oh. 469, p. 824, exempta licenaeapractitionersof maiotii3, dentistry, or ohlropody from the provision or Article 758a, V.P.C., vhlch prascrlbes a penalty for the aispenslag OS drugs by persone other than reglstema phammclets.

APPROVEDx

J. C. Davis, Jr. County Affairs Division

Jesse P. Luton, Jr. Reviewing Assistant

Everett Rutahlnaon ExecutiveAsristant BArlgrawo Yours very trulg

PRICE DARIEL Attorney C!%neral

BY iiZXn% Assistant