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

LIIIm.SvTV .‘w?X~Y_,~ 

September 13, 1951 

Hon. Buster Brown Opinion No. V-1284 

Secretary 

Texas Board of Pharmacy Re: Whether physicians or 

Temple, Texan hospital or clllllc dispensarlea may 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 Questions pertaMng 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 dispense medication 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 medication at a aeparate fee for persona not patients without 

hiring a pharmacist and obtaining a permit? 

-3. Under terms of the fourth paragraph of Article 7588. Vernon!8 Penal 

Code, 1s not the dispensing of drugs 

limited to a licensed pharmaclat whether 

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 original packages. Provided 

that all persons now registered as pharmacists in this State shall have all 

rights granted to pharmacists under this 

Act: provided, however, that nothlrgln 

this Act shsll apply to or interfere 

with licensed practitioners of medicine, 

dentlstry or chiropody, who ie duly registered as such by his respective State 

Board of Examiners of this State and no 

shall be construeh~ to restrain a bona 

fide hospital or clinic from operating 

a dispensary or 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 carpied by any physician, 

surgeon, dentist, chiropodist or veterinarian licensed by his respective Board 

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, partnerships or corporations, other than registered pharmaclete, 

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 fungicides and chemlcals ueeQ in the 

arte, when properly labeled: nor lneecticldes or fungicides that are mixed or 

compounded for purely agricultural purpoeee .” (Underscoring supplied.) 

Prior to the above amendment, a physician 

could not operate a retail drug store or dispense 

medication for any person except his own patients 

unless he was a registered pharmacist himself or 

had one continually employed therein. However, the 

underscored provlslon of the Act as amended clearly 

authorizes a physician to dispense medication for 
Hon. 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 construed to restrain physicians from 

operating a dispensary, prescription laboratory, 

or apothecary shop, it is our opinion that a phgslclan cannot be required to obtain a pharmacist's 

license in order to dispense medications for which 

a fee separate,from his professional services 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, partnership or 

corporation desiring to operate a retall pharmacy, drug store, dispensary, 

or apothecary shop in thla State, as 

the same is defined herein; and every 

manufacturer of drugs and msdlclnee, 

as defined herein, 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 application to the Board,, 

upon a form to be furnished by 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 

continually employed by the drug store 

or pharmacy, or the pharmaceutical 

chemist or chemist qualified by aclentlflc training, who Ia to be employed by the factolyor manufacturer; provided that the Boara~may in lta diacretlon refuse to lseue such permit 

to such applicant unless furnished 

with satisfactory proof that such applicant 16 engaged in the business of 

conducting a pharmacy, drug store, 

dldpenaary, apothecary ehop or factory 

for the purpose of manufacturing drugs. 

*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,suepend 
Hon. 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, 

apothecary shop 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, corporation or 

manufacturer deslHng to open a new 

pharmacy, drug &ore, dispensary, apothecary shop, or factoryahall procure the 

permit above mentioned before beginning 

its operation as such; and the same 

discretionary powers may be used by the 

Board ln passing u 

not more than one P 

on 

1) 

such applications; 

etore or factory 

may be operated under one (1) permit. 

“In case of a change in pereonnel 

of registered pharmaclete, the Board 

shall be notified of such change wlthln 

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 ‘3r operating a dispensary, 

apothecary shop or preecrlptlon laboratory for the care of its patients 
Hon. Buster Brown, page 5 (V-1284) 

as long as a licensed pharmacist Is continually employed to compound said prescriptlona. 

“section lg. A P~==cY, drug 

atore, dlapeneary, apothecary shop, or 

preecrlptlon laboratory, 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 consumer wherein a registered pharmacist is employed. 

“Provided, however, that no provision of thla Act shall be construed 

to apply to any hospital or clinic 

maintaining or operating a dlapeaaary, 

apothecary ahop or prescription laboratory for the care of lta patleats 

aa long ae a licensed pharmacist is 

continually eqloyed to compound said 

prei3criptloaa. 

There is nothiqln the Act which exempta 

phyalclans from the provlalons of Section 17, which 

requires every pereon who operates a drug store to 

secure a permit f’rcun the State Board of Pharmacy. 

Therefore, it Is our opinion that a physician may 

not dispense medlcaton fur which a fee separate 

from his’ professional services la charged without 

first obtaining a 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 

operating a aispeaeary or apothecary shop in order 

to provide services to its patlenta,Y both Sections 

17 and 19 provide that a registered pharmacist 

must be continually emp1oye.Q. to compound the preecrlptiona., 

In view of the foregoing, It la our oplnion that the dispensary of a hospital or clinic 

muet continually employ 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 ‘of the Pharmacy Act, 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 licensed aa~ 

a pharmaclet who shall compound, mix ., 

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

pharmaceutical preparations upon a 

physlclan'e prescription. 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 pharmaclet to compound, mix, 

blend, dispense any drugs, medicinea, 

poisons or pharmaceutical preparations, 

on phyelclan's prescription, contrary 

to any of the pro~lsio~ of this Act, 

ahall be subject to the penalties of 

thle Act." 

Obviously Article &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 question whether the 

act of 1931 repeals the act of 1930, 

we are of the oplnlonthatltdoes. 

In tbls connectloa It 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 conflicts with 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 abaolutely antagonistic to 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 subsequent to Article 758a, V.P.C., 

vi11 control. Therefore, it Is our opinion that 

under the terms of SenateBIll 268, supra, licensed 

practltloners of mecllcine, dentistry, or chlropoily, 

are exempt from the provision of Article '@a 

vhich states that any person not licensed as a 

pharmacist who doea any of the enumerated acts 

shall be subject to a penalty. 

A physician may dispense medication 

for which a separate fee from his professlonal services Is charged without 

obtaining a 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 

clinic must continually employ a pharmacist to 00mp0una prescriptions ana 

may not furnish medication for a separate ree to persons ottir than patients 

vlthout obtaining a permit. 

Senate Bill 268, Acts 52na Leg., 

R.S. 1951, oh. 469, p. 824, exempta 

licenaea practitioners of 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 

Executive Asristant 

BArlgrawo 

Yours very trulg 

PRICE DARIEL 

Attorney C!%neral 

BY iiZXn% 

Assistant