### ATTORNEY GENERAL OF 

### TEXAS GREG ABBOTT

August 19,2004

Mr. Chris Kloeris Executive Director Texas Optometry Board 333 Guadalupe Street, Suite 2-420 Austin, Texas 78701-3942 Opinion No: GA-0236
Re: Whether the Board ofNurse Examiners may permit registered nurses to administer adangerous drug on the order of a therapeutic optometrist (RQ-018%GA)
Dear Mr. Kloeris: Onbehalf ofthe Texas Optometry Board you askwhether the Board ofNurse Examiners may permit registered nurses to administer adangerous drug on the order of atherapeutic optometrist.’ Occupations Code chapter 351 governs the licensing oftherapeutic optometrists. See TEX. OCC. CODE ANN.ch. 3.51(Vernon 2004). Therapeutic optometrists arerequired tocomplete courses inpharmacology and pass alicensing examination inaddition tothe basic requirements forbecoming an optometrist. See id. 5 351.252. After meeting these additional requirements, therapeutic optometrists are permitted to prescribe certain dangerous drugs in order to treat particular ocular diseases. See id. $3 351.160, ,358, and .3581. The Texas Dangerous Drug Act, Health and Safety Code chapter 483, includes physicians, dentists, podiatrists, veterinarians, and optometrists in the definition of “practitioner,” which is a person permitted to prescribe and administer dangerous drugs. See TEX. HEALTH & SAFETY CODE ANN. $ 483.001(12)(A) (Vernon 2003). Also included in the definition of “practitioner” are advanced practice nurses (“APNs”) and physician assistants (“PAS”) to whom a physician has delegated the authority to carry out or sign prescription drug orders. See id. §483,001(12)(D); see also TEX. OCC. CODE ANN. $5 157.0511, .053-.0542 (Vernon 2004) (outlining the manner and circumstances in which aphysician may delegate toAPNs and PAS the authority to perform certain medical acts). Ofthese practitioners, Occupations Code chapter 301, the Nursing Practice Act (the “Act”), expressly grants authority tophysicians, dentists, and podiatrists to give orders to registered nurses to administer medication ortreatments. See TEX. Oct. CODE ANN.3301.002(2)(C) (Vernon 2004). The Board ofNurse Examiners, the agency charged with implementing the Act, reads section

‘SeeLetter from Chris Kloeris, Executive Director, Texas Optomehy Board, toHonorable Greg Abbott, Texas Attorney General (Feb. 23,2004) (on tile with the Opinion Committee, also available ar http://www.oag.state.tx.us) [hereinafter Request Letter].Mr. Chris Kloeris - Page 2 (GA-0236)

301.002(2)(C) to cover registered muses acting on the orders ofAPNs and PAS because physicians are statutorily authorized to use APNs and PAS, by way of duty delegation, to act vicariously.’ On behalf of atherapeutic optometrist who employed aregistered nurse, you sent aletter to the Board ofNurse Examiners and asked whether amuse is authorized to administer adangerous drug on the order of atherapeutic optometrist. See Request Letter, supra note 1,at 1. The Board ofNurse Examiners responded:

Registered Nurses are not authorized to act on orders issued by a therapeutic optometrist. Sec. 301.002. Definitions of the Nursing Practice Act states in part that professional nursing involves the administration ofamedication ortreatment asordered by aphysician, podiatrist, or dentist?
You argue that the Board ofNurse Examiners has interpreted section 301.002 ofthe Act to authorize registered nurses toacton the orders ofAPNs and PAS, despite the plain language ofthe section, and that you can find “no distinction in the ability to prescribe dangerous drugs of the above health practitioners versus therapeutic optometrists.” Id. Thus, you ask:

Do the Nursing Practice Act, the Optometry Act, and the Health and Safety Code give the Board ofNurse Examiners authority to allow registered muses to administer a dangerous drug on the order of a therapeutic optometrist? Id.
Inconstruing astatute we are charged with determining and giving effect to the legislature’s intent. See City of Sun Antonio v. City ofBoerne, 111 S.W.3d 22, 25 (Tex. 2003). This is accomplished by establishing the “plain and common meaning of the statute’s words.” Id. Generally, if a statute’s meaning is unambiguous, we interpret the statute according to its plain meaning. Id. However, we determine legislative intent from the entire act and not just isolated portions. Id..;see also TEX. GOV’T CODE ANN. $311.023 (Vernon 1998) (regardless ofwhether a statute isconsidered ambiguous, acourt may consider, inter ah, the circumstances under which the statute was enacted and the legislative history). With these rules guiding our discussion, we now turn to your question.

*&e Board ofNurse Examiners for the State ofTexas, Position Statements 15.1 (Jan. 1994) (detemining that nurses may act on orders from PAS), 15.18 (Jan. 2001) (determining that nurses may act on orders from APNs) attachment toRequest Letter, also avaiiableathttp://www.bne.state.tx.us; see also TEX.Oct. CODEANN. $5 157.0511, ,053,..0542 (Vernon 2004).

‘Letter from Sandra Owen, MN, RN, Director ofProfessional Nursing, Board ofNurse Examiners for the State ofTexas, to Chris Kloeris, Executive Director, Texas optometry Board (Jan. 28,2003) (attachment to Request Letter).Mr. Chris Kloeris - Page 3 (GA-0236)

Section 301.002 ofthe Act reads in relevant part: “‘Professional nursing’ involves

. . .the administration of amedication ortreatment asordered by aphysiciqpodiatrist, or dentist.” TEX. Oct. CODEANN. 5301.002(2)(C) (Vemon 2004) (emphasis added). The language ofthe statute is unambiguous and by its terms only authorizes aphysician, podiatist, or dentist to give orders to muses toadminister medication ortreatments. Nevertheless, inyour brief accompanying the request letter, you suggest that this statute’s unambiguous language belies acontrary legislative intent!
You first note that since 1989 the legislature has amended the relevant sections of the Occupations and Health and Safety Codes to include “three additional types ofhealth professionals inthe group ofpersons authorized toprescribe and administer drugs to humans.” TOB Brief, supra note 4,at4. In 1991, these amendments gave therapeutic optometrists the authority toprescribe and administerdangerousdrugs. SeeActofMay21,1991,72dLeg.,R.S.,ch.588,§ 12,199lTex.Gen. Laws 2106, 2111 (expanding the optometric profession to include therapeutic optometrists, and amending the Health and Safety Code to add therapeutic optometrists to the definition of “practitioner”). Yet, you say, Nursing Practice Act section 301.002(2)(C) was last amended prior to 1991 to read as it does now. See TOB Brief, supra note 4, at 3-4. At the time of the 1991 amendment, physicians, dentists, andpodiatrists constituted the onlyheahhprofessionals authorized to prescribe and administer dangerous drugs. See id. Because, you continue, it took many years from the time podiatrists were made practitioners forthe legislature tocorrect anoversight toinclude podiatrists in the language of 301.002(2)(C), you conclude that “the history of amending 5301.002(2)(C) atleast strongly suggests that the legislature has simply not been able tokeep up-todate with all the interrelated laws in this area.” Id. at 5n.19. We are unpersuaded by this argument. Even ifthe legislature had never revisited section 301.002, “astatute isnot repealed by nonuse, but remains in full force and effect until itis amended or repealed by the legislature, or impliedly repealed by an irreconcilable statute.” Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 941, 957 (Tex. Civ. App.-Dallas, 1928), rev’d on other grounds, 49 S.W.2d 403 (Tex. 1932); accord Tex. Att’y. Gen. Op. No. JC-0136 (1999) at 3. However, section 301.002 is not aforgotten provision that conflicts with amore evolved statutory scheme. Discounting its codification inthe Occupations Code, section 301.002 has been revisited by the legislature multiple times since therapeutic optometrists were authorized to prescribe dangerous drugs. See, e.g., Act ofMay 26, 1993,73d Leg., ch. 840, 5 12, 1993 Tex. Gen. Laws 3303,~3310; Act ofMay 29,1995,74th Leg., ch. 965,s 54,1995 Tex. Gen Laws 4789,4823; Act ofApril 26,2001,77th Leg., ch. 112,s 4,200l Tex. Gen. Laws 219,221-22; Act ofMay30,2003, 78th Leg., ch. 553, 5 1.002, 2003 Tex. Gen. Laws 1874, 1874. And within section 301.002’s legislative history subsequent tothe 1991 addition oftherapeutic optometrists, subsection (2)(C) has been amended specifically. See Act ofMay 29,1995,1995 Tex. Gen. Laws at4823 (amending Act ofMay26,1993, 1993 Tex. Gen. Laws at3310, former article 4518, section 5ofthe Revised Civil Statutes, the predecessor to section 301.002, to replace “Podiatry” with “Podiatric.“). At the minimum, this history is illustrative of alegislature actively revising this area ofthe law.

‘See Brief from Chris Kloeris, Executive Director, Texas Optometry Board (Feb. 23, 2004) (attachment to Request Letter) [hereinafter TOB Brief-j.Mr. Chris Kloeris - Page 4 (GA-0236)

You next contend that torely on the plain language ofsection 301.002(2)(C) would frustrate the legislature’s intent to give therapeutic optometrists the same overall prescriptive authority asthat exercised by physicians, podiatrists, and dentists. See TOB Brief, supra note 4, at 5. To reach this conclusion, we would have to agree first that the authority to give orders to nurses to administer medication and treatments is necessarily included within one’s prescriptive authority. We do not agree with your premise. As the Texas Nurses Association observed, section 301.002(2)(C) covers two distinct situations: administering medication and administering treatments (medicinal and otherwise).’ These are two very separate powers, and were we to reach your conclusion, we would be forced bythis construction torecognize veterinarians also ashaving the authority found in section 301.002. Veterinarians are authorized bysection483.001 oftheHealth and SafetyCode toprescribe and administer dangerous drugs. See TEX. HEALTH & SAFETY CODE ANN. 5 483,001(12)(A) (Vernon 2003). Clearly, veterinarians arenot trained to work in conjunction with registered nurses and sohave not been extended the powers ofsection 301.002(2)(C). The statute requires ustoreach the same result with respect to therapeutic optometrists. Finally, the legislature hasnot established astatutory scheme forphysicians todelegate duties to therapeutic optometrists. Physicians cannot use therapeutic optometrists vicariously like physicians can use APNs and PAS, and asaconsequence, the Board ofNurse Examiners cannot read section 301.002 to include therapeutic optometrists. The legal context of section 301.002(2)(C) does not alter the plain meaning ofits text. The plain language of section 301.002(2)(C) only authorizes physicians, podiatrists, and dentists to give registered nurses orders to administer medication and treatments. Therefore, were the Board of Nurse Examiners to allow therapeutic optometrists to give registered nurses such orders, it would be reaching beyond the scope of its powers.

‘See Brief from James Willmann, General Counsel and Director Governmental Affairs, Texas Nurses Association, at 5 (Apr. 27,2004) (on file with the Opinion Committee).Mr. Chris Kloeris - Page 5 (GA-0236)

SUMMARY The Board of Nurse Examiners may not permit registered nurses to administer a dangerous drug on the order of atherapeutic optometrist.

Attorney General of Texas

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S.FULLER Chair, Opinion Committee Daniel C. Bradford Assistant Attorney General, Opinion Committee