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 of Nurse Examiners may 

permit registered nurses to administer a dangerous 

drug on the order of a therapeutic optometrist 

(RQ-018%GA) 

Dear Mr. Kloeris: 

On behalf ofthe Texas Optometry Board you ask whether the Board ofNurse Examiners may 

permit registered nurses to administer a dangerous drug on the order of a therapeutic optometrist.’ 

Occupations Code chapter 351 governs the licensing of therapeutic optometrists. See TEX. 

OCC. CODE ANN. ch. 3.5 1 (Vernon 2004). Therapeutic optometrists are required to complete courses 

in pharmacology and pass a licensing examination in addition to the basic requirements for becoming 

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 a physician may delegate to APNs and PAS the authority to perform certain 

medical acts). Ofthese practitioners, Occupations Code chapter 301, the Nursing Practice Act (the 

“Act”), expressly grants authority to physicians, dentists, and podiatrists to give orders to registered 

nurses to administer medication or treatments. See TEX. Oct. CODE ANN. 3 301.002(2)(C) (Vernon 

2004). The Board ofNurse Examiners, the agency charged with implementing the Act, reads section 

‘See Letter from Chris Kloeris, Executive Director, Texas Optomehy Board, to Honorable 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 of APNs and PAS because physicians 

are statutorily authorized to use APNs and PAS, by way of duty delegation, to act vicariously.’ 

On behalf of a therapeutic optometrist who employed a registered nurse, you sent a letter to 

the Board of Nurse Examiners and asked whether a muse is authorized to administer a dangerous 

drug on the order of a therapeutic optometrist. See Request Letter, supra note 1, at 1. The Board 

of Nurse 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 of a medication or treatment as ordered by a physician, 

podiatrist, or dentist? 

You argue that the Board ofNurse Examiners has interpreted section 301.002 ofthe Act to authorize 

registered nurses to act on the orders of APNs 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 of Nurse Examiners authority to allow 

registered muses to administer a dangerous drug on the order of a 

therapeutic optometrist? 

Id. 

In construing a statute we are charged with determining and giving effect to the legislature’s 

intent. See City of Sun Antonio v. City of Boerne, 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 of whether a 

statute is considered ambiguous, a court 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 of Texas, 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 to Request Letter, also avaiiableathttp://www.bne.state.tx.us; see also TEX. Oct. CODE ANN. $5 157.0511, 

,053,..0542 (Vernon 2004). 

‘Letter from Sandra Owen, MN, RN, Director ofProfessional Nursing, Board ofNurse Examiners for the State 

of Texas, 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 of the Act reads in relevant part: “‘Professional nursing’ involves . . . the 

administration of a medication or treatment as ordered by aphysiciqpodiatrist, or dentist.” TEX. 

Oct. CODE ANN. 5 301.002(2)(C) (V emon 2004) (emphasis added). The language of the statute is 

unambiguous and by its terms only authorizes a physician, podiatist, or dentist to give orders to 

muses to administer medication or treatments. Nevertheless, in your brief accompanying the request 

letter, you suggest that this statute’s unambiguous language belies a contrary 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 

in the group ofpersons authorized to prescribe and administer drugs to humans.” TOB Brief, supra 

note 4, at 4. In 1991, these amendments gave therapeutic optometrists the authority to prescribe 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, and podiatrists 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 for the legislature to correct an oversight to include 

podiatrists in the language of 301.002(2)(C), you conclude that “the history of amending 

5 301.002(2)(C) at least strongly suggests that the legislature has simply not been able to keep up-todate with all the interrelated laws in this area.” Id. at 5 n.19. 

We are unpersuaded by this argument. Even if the legislature had never revisited section 

301.002, “a statute is not repealed by nonuse, but remains in full force and effect until it is 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 a forgotten provision that conflicts with a more evolved statutory 

scheme. Discounting its codification in the 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 of May 26, 1993,73d Leg., ch. 840, 5 12, 1993 Tex. Gen. Laws 

3303,~3310; Act of May 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 to the 1991 addition oftherapeutic optometrists, subsection (2)(C) has 

been amended specifically. See Act of May 29,1995,1995 Tex. Gen. Laws at 4823 (amending Act 

ofMay26,1993, 1993 Tex. Gen. Laws at 3310, former article 4518, section 5 ofthe Revised Civil 

Statutes, the predecessor to section 301.002, to replace “Podiatry” with “Podiatric.“). At the 

minimum, this history is illustrative of a legislature actively revising this area of the 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 to rely on the plain language of section 301.002(2)(C) would frustrate 

the legislature’s intent to give therapeutic optometrists the same overall prescriptive authority as that 

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 by this construction to recognize veterinarians also as having 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 are not trained to work in conjunction with registered nurses 

and so have not been extended the powers of section 301.002(2)(C). The statute requires us to reach 

the same result with respect to therapeutic optometrists. 

Finally, the legislature has not established a statutory scheme for physicians to delegate duties 

to therapeutic optometrists. Physicians cannot use therapeutic optometrists vicariously like 

physicians can use APNs and PAS, and as a consequence, 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 of its 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 a therapeutic 

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