JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711.2546 5121475-2501 Telex 910/674-1367 Telecopier 5121475.0266

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

Ma:ech14, 1986

Mr. Fred S. Brinkley,Jr. ExecutiveDirector/Secretary Texas StateBoard of Pharmacy 211 East 7th Street Suite 1121 Austin,Texas 787101

Dear Mr. Brinkley: OpinionNo. JM-452

Re: Whether theTexas State Board of Pharmacymay licensea foreign. pharmacy graduate under certain circumstances

You advise us that the Foreign Pharmacy Graduate Examination Comission (FPGEC) of the National Association of Boards of Pharmacy offers the Foreign Pharmacy Graduate Equivslency Examination to foreign pharmacy I:raduates who seek educational equivalency certification as partial fulfillment of the eligibility requirements fcr licensure to practice pharmacy in the United States. You ask, in a situation in which the professionalpharmacy degree cf the college is not accredited by the American Council on Pharmaceutical Education, whether the Texas Pharmacy Act authorizes the Texas State Board of Pharmacy to licens~can individual who graduates from a college of pharmacy locatedoutside the United States if the applicantobtains an FPGEC certification,fulfillsother licensingrequirements,and passes the licensingexamfnationadministeredby theboard. We conclude that the Texas PharmacyAct neither prohibitsnor requires the licensingof suchpersonsby theTaxas StateBoard of Pharmacy.
The Texas Phz,rmacyAct, article 4542a-1, V.T.C.S., provides, in pertinentpart, as :Eollows:

Sec. 5. In thisAct, unless the context of its use clear:ly

indicatesotherwise:
(1) 'A.C.P.E.'means the American Council on PharmacclticalEducation.

. . . . (9) 'College of pharmacy' mesas a school, university, or college of pharmacy that satisfies the accreditationstandardsof A.C.P.E. as adopted by the board: or that has degree requirements

p. 2050Mr. Fred S. Brinkley, Jr. - Page 2 (m-452)

which meet the standards of accreditation set by theboard.

. . . . Sec. 21. (a) To qualify for a license to practice pharmac>,,an applicant for licensing by examinationmust submit to theboard a license fee as determinedby the board and a completed application on a forn prescribed by the board with satisfactorysworn evidence that he:

. . . . (4) has gradca,ted and received s professional degree from an a$credited collegeof pharmacy that has been spprovedibytheboard; and

. . . . Sec. 22. (a) To qualify for a license to practicepharmacy 'byreciprocity,an applicant for licensingmust:

. . . . (3) have graduatedand receiveda professional

-- degree from an accredited college of pharmacy that has been approved:bytheboard;

. . . . Sec. 26. (a) The board shall refuse to issue
a pharmacist 1i:ense for failure to meet the requirementsof Section 21 or 22 of thisAct.
The Rules of the Texas StateBoard of Pharmacy state that

The following are the educational and age requirementseach applicantmust meet:
(1) have obtsined a B.S. in pharmacy or a Pharm.D. from a college of pharmacy accreditedby ACF'Eand meeting the requirements of the board; and
(2) provide satisfactoryevidence that the age of 21 years has been obtained.

p. 2051Mr. Fred S. Brinkley, Jr. -.Page 3 (JM-452)

22 T.A.C. 9283.3 (1982).
The issue is neither the residency nor nationality of an applicantbut whether, under the Texas Pharmacy Act, personswho have completeda pharmacy educal:ion at a pharmacy schooloutside theUnited Statesmay be licensedby the Texas State Board of Pharmacy [Boardof Pharmacy].
The dominant considerntion in construing statutes is legislative intent. The Texas SupremeCourt recently stated that

[nlo inflexible ,rulecan be announced for the construction of e,tatutes. However, the dominant rule to be obsa?rvedis to give effect to the intention of the Legislature. Generally the intent and meaning is obtained primarily from the language of the statute. In arriving at the intent and purpose of the law, it is proper to consider the l:i,storyof the subject matter involved, the en3 to be attained, the mischief to be remedied,and thepurposes tobe accomplished.

y Commission, 643 S.W.2d 681, 684 quotingwI;ji S.W.2d 488,'490 CoahomaV. PublicUtility Commissioa, 626

(Tax. 19817 and Magnolia Petroleum Co. v. Walker, 83 S.W.2d 929 (Tex. 1935).
The Texas PharmacyAc: was enactedby House BillNo. 1628, Sixtyseventh Legislature. in l%l to replace article 45428, V.T.C.S., and to continue the existence and operation of the Board of Pharmacy as part of theTexas SunsetC,ndssion reviewprocessprovidedby article 5429k,V.T.C.S. (nowrecod.LJi1e.d as chapter 325, GovernmentCode). The bill analysis of Rouse BilLNo. 1628,prepared for theHouse Committee on Government Organizatti)n,on file with the Texas Legislative Reference Library, expla::nsthat the term "college of pharmacy" defined in section S(9) of the bill appears in section 9(a) of the replacedpharmacy act, but that the termwas not defined in the prior act. The bill analysis describes section 21(a) as "Section 9(a) of the current act" (art. 454:2a)and section 22(a) as "Section 9(c) of the current act." See mts 1979, 66th Leg., ch. 837, at 2202. Section 9(a) of article 4542a provided that an applicant seeking to take the examination given,by the Board of Pharmacy shall present satisfactory evidence "that he has attended and graduated from a reputable university, school, or college of pharmacy which meets the requirements of the Board." (Emphasis added). Section 9(c) of article 4542a authorized :%ensing by reciprocity for applicantswho furnishproof that they arL registeredas pharmacists in a starewhose board "in its examination required the same general degree of fitness requiredby this State."

p. 2052Mr. Fred S. Brinkley, Jr. - Page 4 (JM-452)

The Texas State Board of Pharmacy Staff Report to the Sunset Advisory Commission,dated June 19, 1980, states that

The licensing standards for pharmacists can be broken down into three basic components: education, experience and examination. With regard to education, the ststute requires at least an undergraduate degree from a board-approved.school of pharmacy. (Fmphe,sis added).
The Pharmacy Board Report to the Sunset Commission suggestedmodifications to the Pharmacy Board statute but contained no indication that foreignpharmacy schoolspr,esented a problem and no suggested legislation on that subject. The Sunset Commission Report on the Board of Pharmacy did not recommenC.any statutory changes relating to educational requirements.

We find no indication that the legislature intended the Texas Pharmacy Act enacted In 195L, to deny to the Texas Board of Pharmacy the discretion to approve, for licensingpurposes, schools of pharmacy that meet standards set by the board or to limit schools that are eligible for approval to those schools of pharmacy that satisfy accreditation standards of A.C.P.E. The legislature defined a "college of pharmacy" to m'ssna school of pharmacy that satisfies the accreditation standards of A.C.P.E. as adopted by the board or that has degree requirementswhLch meet the standardsof accreditat% set by theboard.

One of the fundament%:lrules of statutory construction is the rule that words in connnon use, when contained in a statute,will be read according to theirnat:u.ral, ordinary,and popularmeaning, unless a contrary intention is clearly apparent from the context. See National Life Co. v. Stly&, 169 S.W.2d 155, 157 (Tex. 1943); Attorney General Opinion WW-1271 (1962). A dictionary may be consulted to ascertain the meaning of a word. See Board of Insurance Commissioners v. Duncan, 1174S.W.2d 326, 328(Tex. Civ. App. - Amarillo 1943, writ ref'd'l;; Attorney General Opinion B-1277 (1978). Black's Law Dictionary 19 (5th cd. 1979), defines "accredit" to mean "to recognize as having sufficient academic standards to qualify graduates for higher educa,tionor for professional practice." In Ballentine's Law Dictionary 14 (3rd ed. 1969), "accredit" means "to recognizeasworthy ofmer:.tor rank, as to accredit a college."
The effect of Rule 2X).3, as presently adopted by the Board of Pharmacy, is that only colleges of pharmacy in the United Statesmeet the board's educational requirements because foreign colleges of pharmacy are not accredited by A.C.P.E. The Board of Pharmacy is authorized to utilize the A.C.P.E. and its standards to assist the board in determining the ~~rofessional degree programs of colleges of

p. 2053Mr. Fred S. Brinkley, Jr. -.Page 5 (JM-452)

pharmacy that meet the edc,cational requirements of the board for the purpose of licensure of pharmacists. We believe, however, that the legislature did not intend the Texas Pharmacy Act to preclude the board from utilizing other methods and tests which the board deems appropriate for determining the colleges of pharmacy with standards thatmerit board approval for the purpose of licensingpharmacists.
The state has the power to regulate licensed professions. See Texas State Board of Pub+ Accountancy V. Fulcher, 515 S.W.2d 950 (Tex. Civ. App. - Corpus Christi 1974, writ ref'd n.r.e.). The legislaturemay delegatepsrt of that authorityby creating licensing agencies to make rules and ,cegulations consistentwith the purpose of their respective enablinp licenses. acts and to grant. - . refuse. or revoke In so doing, the legislaturemay limit a licensingboard's authority. See Francisco v. 619, 621 (T=Tiv. App. Board of Dental Examiners, 149 S.W.2d

- 'ii.ustin

1941,writ ref'd).

We believe that, if l:h.e legislature intended the Texas Pharmacy Act to prohibit the licerls,ure of graduates of all schools located outside the United Statecl,it expressly would have provided such prohibitions or 1imitation:l.We conclude that the Texas Pharmacy Act authorizes the Board of Phz.tmacy to decidewhether FPGEC certification of a foreign pharmacy graduate constitutes an appropriate method or test for determining whether the degree requirements of a school located outside the United !;tates meet the standards of accreditation set by the board. Cf. V.T.C.S. art. 4495b, $5.04 (individualwho has been student of a fzgn medical school is eligible for licensurc to practice medicine in this state if he meets specific requirements); V.T.C.S. art. 4544, 62 (l'erasState Board of Dental Examiners may provide in rules and reguls,tions the procedures and requirements for graduates of foreign dent;Il. schools to become licensed to practice dentistry);V.T.C.S. art. 4518, $§I, 3 (Boardof Nurse Examiners shall accredit schools of nursing;and educational programs that meet its requirements and standards .andevery applicant for registrationmust complete an accredited pro;gramof professional nursing education); V.T.C.S. art. 4552-3.02 (applicant for license to practice optometry must graduate from a reputableuniversityor college of optometry that meets the requirementsof the Texas OptometryBoard).
Second,you also askwhether the Board of Pharmacymay require a foreign pharmacy graduate tihohas obtained an FPGEC certification to pass an oral communicatioas skill examination to determine such a person's oral communicatior, ability. It is our opinion that the Board of Pharmacy does not have authority to require an applicant for licensingtopass an oral communicationsskill examination in order to qualify for a license.

It is well establish#!dthat an administrative agency has only thosepowers expressly grarted to itby statuteor necessarily implied

p. 2054Mr. Fred S. Brinkley, Jr. - :Page6 (JM-452)

from the statutoryauthority conferredor duties imposed. See City of Shermanv, PublicUtility Commission, 643 S.W.2d 681, 686 (G. 1983); Staufferv. City of SanAnt;&, 344 S.W.2d 158 (Tex. 1961).
Section 21 of the Texas PharmacyAct expressly provides qualifications for licensing by examination. The legislature specified qualifications relating to age, moral character, internship or other experience,education,and the passage of "the examinationrequiredby theboard." Sec. 21(a). The examination shallbe prepared tomeasure the competenceof the appU.c,ant to engage in the practice of pharmacy and the board may employ and cooperate with any organization or consultant, including a national testing service, in the preparation and grading of an appropriate examination. Sec. 21(d), (e). Section 21(f) directs that each applicant for licensing shall obtainpractical experience in the practice of pharmacy. Under section 21(g), the board shall establish stand,ardsfor internship or any other program necessary to qualify an applicant for the licensing examination and shall determine the necessary qualifications for any preceptors used in an internshipor otherprogram.
Rules and regulations adopted by Texas administrative agencies may not impose additional burdens, conditions, or restrictions in excess of or inconsistentwith statutoryprovisions. See Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214, 216-17 (TX Civ. App. - San Antonio 1980, no writ) (in absence of statutory language indicating legislative intent zbat a board have the power to add to licensing qualifications enumerated by the legislature, it is not within the power of a board to impose qualificationsthat add to those expressed in the statute).

We find nothing in t'xeTexas Pharmacy Act which suggests that oral communication ability is a qualification for licensure or would constitute express or impl.iedauthority to the board to require passage of an oral communj.c:ation skills examination. You advise us that the Foreign Pharmacy Graduate Equivalency Examination is given only in English and that a requirement for FPGEC certification is documentation that the pe:rrron has passed the Test of English as a ForeignLanguage (TOEFL)examination. Oral communicationskill is not necessarily the same as Enl&ish language skill,but it appears that a person's English language skill will have received some measure of testingwhen he obtains an FPGEC certification.
The legislaturehas given the Board of Pharmacy broad power to approve the educational sta,ndardsof the colleges of pharmacy which the board deems necessary :iorthe purpose of licensingpharmacists in this state. While it is O'UCopinion that oral communicationskill as such is not a qualificati~xlfor licensure, we believe the Board of Pharmacy may require an oral communication skills examination to be given uniformly to all graduates of the colleges of pharmacy, if the

p. 2055,- Mr. Fred S. Brinkley, Jr.
.. Page 7 (JM-452)

board needs to ascertain their skill for thepurpose of evaluating the quality of education acquiredby the graduates.

SUMMARY
The Texas Pharmacy Act neither prohibits nor requires the Tex,ssState Board of Pharmacy to license persons who graduate from colleges of pharmacy located outside the United States. The Texas Board of Pharmacy has discretion to approve colleges of pharmacy for licensing purposes and =Y utilize accreditation or certification by agencies it deems appropriate to assist the board in determining t'lacolleges of pharmacy that meet standards set by the board. The Texas Board of Pharmacy has not bean granted express or implied authority to add verbal communication ability to the qualifications for a license to practice pharmacy. 

# Jr?Jj+L&

Attorney General of Texas

JACKRIGRTOWRR FirstAssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorney General

ROBERT GRAY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee Preparedby Nancy Sutton AssistantAttorneyGeneral

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