Hareh 7, 1950


Hon. Walter CowIns, Jr., Ssoretarg
'Eexaa Board of Pharmacy
'Dallas, Texas               opinion ao. v-1017.

                              Re: The authority 0r the
                                  Texas Board of Phar-
                                  macy to license gradu-
                                  ates of aohools which
                                  do not maintain a stu-
                                  dent disp8UOry,  In
                                  view of an alleged oon-
                                  fliot in the existing
Dear SIP:                         statutes.

          Ref%renOe is made to your MO8nt   requ8st which
reads in part as follows:

          "Under Seotion 8, Art.$5@a, Title 71
     in The Texas Pharmacy LOW, it ia stated that
     'It shall be unlawful for any person who is
     not a registered phamaoist    under the pro-
     viaiona of this Act to oompound, mix, manu-
     facture, ~ombiw, pr8par8, label, sell or
     distribute at retail or wholesale any drugs
     or smdicillds, except in original paokages,'
     and under Art. 758a, paragraph 4 it further
     states that 'Any person not being licensed
     aa a pharmacist who shall compound, mix, blend,
     dispense, prepare or sell at retail any drugs,
     medicines, polsonm or pharmaoeutioal prepapa-
     tions upon a PhysLcLan's prescription, or
     otherwise, and Whoever, being the manager OF
     own8r o$ the drug store, pharmacy or faotory,
     or other plaoe of business, shall manufaoture,
     or permit anyone not licensed as a pharmacist
     to compound, mix, blend, disp8ns8 any drugs,
     medicines, poisons or pharmaceutioal prepar-
     atlons, on physloianls presoription, oontram
     to any of the provisions of this Aot,&shall
     be subjeot to the penaltlqs of this Aot,'
     while Seotion 9 of the same Act provides that
     among other things a person to acquire a li-
     oense to praotice phamacy    'shall have had
Eon. Walter Cousins, Jr., page 2        (V-1017)



     at least one (1) year 0r praotioal experience
     in a retell pharmacy under the dlreot auper-
     vision 0r a register8d pharmaciat,V all 0r
     which pPOa8ntS a Conflict which has been em-
     barrassing to this Board in some Instances
     and W8 would appreciate having your SUggeS-
     tiOw as t0 how W8 might pPOG88d pending leg-
     islative oorr8otlon.

           "The Board has allowed, for the exper-
     ience requirement, work done at the student
     health dispensary at the UniversLty of Texas
     While they were  Of Undergraduate status but
     some other institutions do not have such
     facilities and we aPe faoed with either de-
     nying the right to take examinations to them
     if they have not had experienoe and at th8
     same time making it impossible for them to
     obtain the experience. We are attaching here-
     to an inquiTJr in this category tn order that
     you may a88 the dilemma in which we find OUP-
     selves."

            ‘Ph8    inquiry which you refer to provides:

          "Is it possible that I Could, upon grad-
     uation from the Univewity  of Colorado, go
     directly to Texas and obtain my necessary ex-
     perience and then take the examination given
     by the State Boa$d of Pharmacy of T8XaS with-
     Out   l’9CipX’OGity?

            Section 8 of Article 4542a, V.C.S., provides
in part:

          "It shall be unlawful for any person
     who is not a PegisteP8d phaPmaOiSt Und8P th8
     provisionS 0r this AOt to compound, mLx manu-
     facture, aombine, prepare, label, sell or dia-
     tribute at retail or wholesale any drugs or
     mediGFnea, except in origlnal paokagea . . ."

          Th8 pertinent part of Article 758a, V.P.C.,
provides as follows:

          *Any p8PSOn not being liG8nS8d as a phar-
     macist who shall compound, mix, blend, dispense,
     prepare or sell at retell any drugs, U38diGLn89,
     poLsons or phaPUiaO8UtiCal pPepaPatiOns UpOU a
     Hon. Walter Cousins, Jr., page 3   (V-1017)



          physiciaa's prescription, or OtherwiSe, and who-
          ever, being the manager or owner of the drug
          store, pharmacy or faotory, or other place
          of busiuesa, shall manufacture, or permit
          anyone not licensed as a pharmacist to oom-
          pound, mix, blend, dtSp8na8 any drugs, sledi-
          oines, polsons or phar+zaoeutloal preparations,
          on physloian's preaoription, contrary to any
          of the provisions of this Act, shall be aub-
          j8Ct to the p8USltiea of this Act. . .

               "Any person, firm, corporation, partner-
          ship, or joint stock company violating any
          provision 0r this Act shall be guilty 0r a
          miSd8mOOnoP and upon conviction shall be fin-
          ed not less than Fifty    50.00) Dollars, nor
          more than Five Hundred tb500.00) Dollars, or
          be oonflned in jail fop not less than one (l),
          nor mpr8 than six (6) montha, or by both SUGh
          fine and imprisonment. Each day of such vio-
          lation shall be a separate offense.
r‘
                "It shall be unlawful r0P any member 0r
          th8 Board to permit any applicant to take the
          examination h8Peln provided for, unless   such
          applicant fuPIIiSh88~written proof tom said
          Board that such applicant is quaMfi.ed as
          herein provided in thFs Act to take such ex-
          amination. Any member of the Pharmacy Board
          violating this Section shall be guilty of a
          misdemeanor and shall b8 punished as provid-
          8d in then preceding parsgraph."

               Section 9 Of Article 4542a provides in part:

               %very person desiring t@ praotioe phar-
          macy in the State of Texas shellbe required
          to pass the examination given by the State
          Board of Pharmacy. The applioant shall make
          applioation by preaentlng to the Secr8tary of
          the Board, on forms furnlshed by the Board,
          satisfactory sworn 8Vid8IIGO that he has at-
          tained th8 age 0r twenty-one (21) years, la
          of good moral oharacter, is a citizen of the
          United States, and has at least graduated
          from a first grade high sohool, or has a pre-
          liminary eduoation equivalent thereto, permit-
          ting matriculation in th8 University Of Texas,
_-        and that he has attended and graduated fPoln a
Hon. Walter Cousins, Jr., page 4   (V-1017)



     reputable university, school or college of
     pharmacy which meets with the requirements
     of the Board, and shall have had at least one
     11) rear 0r praotloal sxperienoe in a retell
     phaPmaGY under the direct supervision of a
     PeRiSt8POd pharmacist. . ." (Rmphaaia added)

          All of the OboV8 quoted Acts wer8 amended in
1943 aud are a part of Senate Bill 128, Acts 48th Leg.,
B.S. 1943, oh.395, p.710.

          In Hidaluo County Drainage Dist. 100.1 v. David-
-,   102 Tex.-!39* 120 9.x. g4g (1909) * It is stated at
page 851:

           "In determining the sense in which the
     language was used by the Legislature, w8 will
     look to the context and to the purpose of the
     Legislature In enacting th8 law.n

          Also, in Longoria v. State, 126 Tex.Crlm. 362,
(1934), i'l S.W.2d 268, we find th 0 following:

          "we fuPth8P observe that in aooordanoe
     with settled rules of interpretation of stat-
     utea, even when the language used is suscep-
     tible 0r two meanings, the courts are to give
     it that meaning which will GOUfOFm to the
     SQOPO0r the aGt and aarry out the puPpOSe 0r
     the statute. Mr. BlaGk, in his Rornbook on
     Interpretation of Laws, p.56, lays down th8
     rule that, where the language used is ambigu-
     ous, or admits of more than one meaning, it
     is to be taken In auoh a sense as ~111 con-
     form to the scope of the act and oarry out
     the purpose or the statute."

          And fUPtheP, in Trimmer v. CadtOn,   116 Tex.
572, 296 S.W. 1070 (1927), It is stated:

          '%e ought not to give any legislative act
     a constrwtion whloh will throw the law 'into
     some degree or confuaioa, 1 if it can b8 aa-
     certained that the Legislature had fairly  8X-
     pressed any other purpose."

          We must thellefore look to the Act aa a whole
in order to determine legislative Intent. When this Is
don8 the only reasonable oonstruotlon that could be
    I




P
        Hon. welter Cousins, Jr., Page 5     (V-1017)



        placed on the provision which deals with the on8 yeap
        0r practical experienoe in a retail pharmaoy b8fGP8 an
        applicant may take the examination is that any p8PsOU
        Who meet9 all th8 oth8P P8qUiPenwtntS may g8t that prac-
        tical experience in a retail pharmacy under th8 direct
        supervision of a registered pharmaolst wlthout violating
        the law. It was not the intent of the Legislature in en-
        acting this law to create such an anomalous situation as
        to say to an applicant you must have one year of praoti-
        Gal experience in a retail pharmaoy before you may be
        permitted to take the examination and at the aam time
        say to him if you attempt to get this reqnir8d experieL1ce,
        you will be violating the law and subfect to prosecution
        under the Act. In other words, this practioal experience
        is Simply an appr8ntloeahlp which muat be S8rVed  before
        an applioant may take the examination.

                   Therefore, with respect to yotu- specific quea-
        tion, If  an Out-Of-stat8 applicant has the required col-
        lege work and meets all other requirements, he would b8
        authorized Under the Aot to get on8 year of practical
        experience in a retail pharmacy in this State under the
        direct supervision of a registered pharmacist without
        violating the law.



                     An applioant who meets all other require-
                IWnts iS authorized to get the one year pPaG-
                tical exgerience in a r8tail pharmacy in this
                State under the direct supervision of a regia-
                tered nharmaciat without violatiw   the law.
                Seo.g,-Apt.4542a, V.C.S., Trimmer~v. Carlton,
                116 TAX. 573, 296 8.~. 107bT19.27) .

                                         Yours very truly,

                                           PRICR DARlRL
        APPROVED:                        Attorney General

        J. C. Davis, Jr.                       /l       /
        county Affairs Division
                                         By/&h
        Charles D. Mathews                - '@f&o% Allen
        -8GUtiV8  Assistant                    Assistant

        BA:mw