Can an optometrist in Texas use cocaine eye drops to diagnose eye conditions?

Plain-English summary

The Texas Optometry Act distinguished between two kinds of providers. An ordinary optometrist could examine eyes and prescribe corrective lenses but could not administer drugs. A therapeutic optometrist could administer certain drugs, specifically a "topical ocular pharmaceutical agent," to diagnose and treat conditions of the human eye and the "adnexa" (the lids and drainage system of the eye). The drug could not be an antiviral or antiglaucoma agent, and the Texas Optometry Board had to specify by rule which agents a therapeutic optometrist could use.

The board had amended its rules (title 22 of the Texas Administrative Code, section 280.5) to add "cocaine eye drops for diagnostic purposes" to the list of permitted agents. The Texas State Board of Medical Examiners objected, arguing the change pushed optometry past its proper scope. Its point: cocaine eye drops are used mainly to diagnose Horner's syndrome, and a letter accompanying the request described Horner's syndrome as a serious systemic disease affecting neurologic pathways, not a disease of the eye or adnexa.

The Attorney General concluded that the board could authorize a therapeutic optometrist to administer cocaine eye drops, but only within the limits the statute set. Cocaine drops could not be an antiviral or antiglaucoma agent, and they could be used only to diagnose problems of the eye and adnexa. If the drops' only diagnostic use was to detect Horner's syndrome, and Horner's syndrome was not a disease of the eye or adnexa, then a therapeutic optometrist could not administer them and the board's rule would be invalid (because an agency may not adopt a rule that conflicts with statute). Whether Horner's syndrome is a disease of the eye or adnexa was a question of fact the office could not resolve in the opinion process; the board had to decide it, subject to judicial review. The office also confirmed that the Texas Controlled Substances Act did not stand in the way, because a therapeutic optometrist authorized to administer the drug in professional practice fit the act's definition of a "practitioner."

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Texas Optometry Act provisions cited here used the Vernon's Texas Civil Statutes article numbers (article 4552) in effect in 1996. Texas has since recodified much of its occupational-licensing law, so the article and section numbers may not match the current code. Anyone with a present-day question about what an optometrist or therapeutic optometrist may administer should check the current statute and the Optometry Board's current rules.

What the opinion meant at the time

Therapeutic optometrists: The opinion meant that, if the board adopted a valid rule, a therapeutic optometrist could administer cocaine eye drops, but only to diagnose conditions of the eye and adnexa, never as an antiviral or antiglaucoma agent, and not to diagnose conditions outside the eye and adnexa.

Ordinary optometrists: The opinion was clear that an optometrist who was not a therapeutic optometrist could not administer any drugs, and the board could not adopt a rule purporting to let one do so.

The Texas Optometry Board: The opinion told the board its rule was valid only within the Optometry Act's limits. The board, not the Attorney General, had to resolve the underlying fact questions (whether Horner's syndrome is a disease of the eye or adnexa, and whether cocaine drops can diagnose other eye or adnexa conditions), subject to judicial review, and it had to follow the proper rulemaking procedures, including V.T.C.S. article 4552-2.14, the Open Meetings Act, and the Administrative Procedure Act.

Common questions

Could a Texas optometrist use cocaine eye drops under this opinion?
Only a therapeutic optometrist could, not an ordinary optometrist, and only if the Texas Optometry Board adopted a rule allowing it. Even then, the drops could be used only to diagnose conditions of the eye and adnexa.

Why would an optometrist use cocaine eye drops at all?
The request explained that cocaine eye drops are used to diagnose Horner's syndrome. The dispute was whether using them for that purpose fit within optometry's scope, which the statute limited to diagnosing conditions of the human eye and adnexa.

What was the catch about Horner's syndrome?
The Medical Examiners board argued Horner's syndrome is a systemic neurological disease, not a disease of the eye or adnexa. The Attorney General said that if cocaine drops' only diagnostic use was detecting Horner's syndrome, and Horner's syndrome was not a disease of the eye or adnexa, then optometrists could not use them and the board's rule would be invalid. Whether Horner's syndrome counts as an eye or adnexa disease was a fact question the office could not decide; the board had to, subject to court review.

Did the opinion let the board write the rule?
Yes, within limits. The board could permit a therapeutic optometrist to administer cocaine eye drops for diagnostic purposes, provided the drops were not an antiviral or antiglaucoma agent, the use was limited to diagnosing eye and adnexa conditions, and the board followed proper rulemaking procedures.

Background and statutory framework

The Texas Optometry Act (V.T.C.S. article 4552) provided for both optometry and therapeutic optometry. Under article 4552-1.03(b), a therapeutic optometrist could administer a topical ocular pharmaceutical agent, other than an antiviral or antiglaucoma agent, to diagnose and treat "visual defects, abnormal conditions, and diseases of the human eye and adnexa." Article 4552-1.03(d) directed the Texas Optometry Board to specify by rule the pharmaceutical agents a therapeutic optometrist could use, which the board did in title 22 of the Texas Administrative Code, section 280.5.

Two limits drove the analysis. First, the statute confined a therapeutic optometrist's drug use to diagnosing and treating the eye and adnexa, so a drug usable only to detect a non-eye condition would fall outside that scope. Second, an administrative agency may not adopt a rule inconsistent with its governing statute, a principle the office drew from State v. Jackson, 376 S.W.2d 341 (Tex. 1964). Putting the two together, the board could authorize cocaine eye drops only for in-scope diagnostic use; a rule reaching further would be invalid.

The office also addressed the Texas Controlled Substances Act (Health and Safety Code chapter 481), which controls who may possess and administer cocaine. Only a "practitioner" may administer a controlled substance, and although the act did not name therapeutic optometrists, its definition reached any person permitted to administer a controlled substance in the course of professional practice. Because article 4552-1.03(b) gave a therapeutic optometrist that permission for in-scope diagnostic use, the Controlled Substances Act did not bar the rule. In adopting any rule, the board still had to comply with V.T.C.S. article 4552-2.14 and other applicable statutes, including the Open Meetings Act (Government Code chapter 551) and the Administrative Procedure Act (Government Code chapter 2001).

Citations

Statutes and rules:

• V.T.C.S. art. 4552-1.03(b) (therapeutic optometrist may administer a topical ocular pharmaceutical agent for diagnosis and treatment of the eye and adnexa)
• V.T.C.S. art. 4552-1.02(2) (defining the powers-of-vision examination)
• V.T.C.S. art. 4552-1.02(3) (defining fitting lenses or prisms)
• V.T.C.S. art. 4552-1.02(5)
• V.T.C.S. art. 4552-1.03(d) (board must specify permitted agents by rule)
• V.T.C.S. art. 4552-2.14 (rulemaking)
• 22 T.A.C. § 280.5 (board rule listing permitted pharmaceutical agents)
• 21 Tex. Reg. 1093 (1996)
• Health and Safety Code ch. 481 (Texas Controlled Substances Act)
• Gov't Code ch. 551 (Open Meetings Act)
• Gov't Code ch. 2001 (Administrative Procedure Act)

Case:

• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0416
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0416.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 23, 1996

Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
P.O. Box 149134
Austin, Texas 78714-9134

Opinion No. DM-416

Re: Whether the Texas Optometry Board may adopt a rule authorizing a therapeutic optometrist to administer cocaine eye drops for diagnostic purposes (RQ-877)

Dear Dr. Levy:

A therapeutic optometrist may, under V.T.C.S. article 4552-1.03(b), administer a topical ocular pharmaceutical agent, other than an antiviral or antiglaucoma agent, "for the purpose of diagnosing and treating visual defects, abnormal conditions, and diseases of the human eye and adnexa." The Texas Optometry Board (the "board") must, by rule, specify the topical ocular pharmaceutical agents a therapeutic optometrist may use. You ask whether the board may adopt a rule authorizing a therapeutic optometrist to administer cocaine eye drops for diagnostic purposes.[1]

Because V.T.C.S. article 4552-1.03(b) explicitly authorizes a therapeutic optometrist to administer a topical ocular pharmaceutical agent for certain diagnostic purposes, we believe the board may promulgate a rule permitting a therapeutic optometrist to administer cocaine eye drops for those diagnostic purposes. Cocaine eye drops may not, however, be an antiviral or antiglaucoma agent; furthermore, they may be used only for the purpose of diagnosing problems of the human eye and adnexa. To the extent the proposed rule authorizes a therapeutic optometrist to use cocaine eye drops to diagnose problems other than those of the human eye and adnexa, it is invalid.

We begin by briefly discussing pertinent portions of the Texas Optometry Act,[2] which provides for the practice of optometry and therapeutic optometry. Like an optometrist, a therapeutic optometrist may use "objective or subjective means" to ascertain and measure "the powers of vision of the human eye,"[3] examine and diagnose "visual defects, abnormal conditions, and diseases of the human eye and adnexa," and prescribe or fit corrective lenses to remedy vision defects.[4] By contrast, only a therapeutic optometrist may administer or prescribe a drug, if the therapeutic optometrist does so in compliance with the act.[5] Specifically, a therapeutic optometrist may administer a topical ocular pharmaceutical agent,[6] among other things, aside from an antiviral or antiglaucoma agent, to diagnose and treat "visual defects, abnormal conditions, and diseases of the human eye and adnexa."[7] The "adnexa" are the lids and drainage system of the eye.[8]

Under article 4552, the board must specify by rule the pharmaceutical agents a therapeutic optometrist may use in his or her practice.[9] In accordance with this directive, the board claims, it has amended title 22 of the Texas Administrative Code, section 280.5 to include among the list of permissible pharmaceutical agents "cocaine eye drops for diagnostic purposes."[10] You contend that the proposed amendment impermissibly expands the scope of practice of therapeutic optometry. As we understand your argument, cocaine eye drops may be used only in the diagnosis of Horner's syndrome.[11] A letter you enclosed with your request describes Horner's syndrome as "an extremely serious systemic disease[] affecting neurologic pathways."[12] Horner's syndrome is not, according to the letter, a disease of the eye or adnexa.[13]

Whether Horner's syndrome is a disease of the eye or adnexa is a question of fact that we cannot resolve in the opinion process.[14] If it is not such a disease, and if cocaine eye drops' sole use as a diagnostic tool is to detect Horner's syndrome, then a therapeutic optometrist may not administer the eye drops. Moreover, because an administrative agency may not adopt a rule that is inconsistent with statute,[15] the board may not adopt a rule permitting a therapeutic optometrist to use cocaine eye drops. On the other hand, if Horner's syndrome is a disease of the eye or adnexa, or if cocaine eye drops may be used to diagnose conditions, other than Horner's syndrome, of the eye or adnexa, the board's proposed amendment to title 22 of the Texas Administrative Code, section 280.5 is proper.[16] The board is authorized to determine these fact-based questions, subject to judicial review.

We are unaware of any statute mandating a contrary result. The possession and administration of cocaine by health-care professionals is controlled by the Texas Controlled Substances Act.[17] Under that act, only a practitioner, as the act defines that term, may administer a controlled substance, and only in specified circumstances.[18] While the Controlled Substances Act does not define "practitioner" expressly to include a therapeutic optometrist, the definition encompasses any person who is permitted to administer a controlled substance in the course of professional practice. In our opinion, V.T.C.S. article 4552-1.03(b) permits a therapeutic optometrist to administer a controlled substance in the course of professional practice if the drug is not an antiviral or antiglaucoma agent and if the purpose of the drug is to diagnose problems of the human eye and adnexa.

We now will answer your questions explicitly. You first ask whether the Optometry Act authorizes an optometrist to use cocaine, and if so, to what extent. The statute does not authorize an optometrist, as distinguished from a therapeutic optometrist, to use any drugs. A therapeutic optometrist may, however, use certain topical ocular pharmaceutical agents, and the topical ocular pharmaceutical agents may include cocaine eye drops. Cocaine eye drops may not be an antiviral or antiglaucoma agent, and they must be administered for the purpose of diagnosing visual defects, abnormal conditions, and diseases of the human eye or adnexa. Furthermore, a therapeutic optometrist may not administer cocaine eye drops unless the board has adopted a rule authorizing a therapeutic optometrist to use them.

Second, you ask whether the board may promulgate a valid rule allowing optometrists to possess and administer cocaine for diagnostic purposes. Again, an optometrist may not administer any drugs, and the board may not promulgate a rule authorizing an optometrist to do so. On the other hand, the board may promulgate a rule authorizing a therapeutic optometrist to possess and administer a topical ocular pharmaceutical agent if the pharmaceutical agent is not an antiviral or antiglaucoma agent and if the pharmaceutical agent is used for the purpose of diagnosing visual defects, abnormal conditions, and diseases of the human eye and adnexa. The board must, of course, comply with V.T.C.S. article 4552-2.14 and other applicable statutes in adopting its rule.[19]

                             SUMMARY

      The Texas Optometry Board may adopt a rule permitting a therapeutic optometrist to administer cocaine eye drops for diagnostic purposes, but only if the eye drops are not an antiviral or antiglaucoma agent and if the purpose of the eye drops is to diagnose visual defects, abnormal conditions, and diseases of the human eye and adnexa.

                                                Very truly yours,

                                                DAN MORALES
                                                Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Selected footnotes (best-effort transcription; the linked PDF is authoritative):

[1] Because the proposed rule does not refer to the use of cocaine eye drops for treatment purposes, we do not consider whether the board may adopt a rule authorizing a therapeutic optometrist to use cocaine drops for treatment purposes.
[2] V.T.C.S. art. 4552-1.02 - 7.02.
[3] See id. art. 4552-1.02(2) (defining "determining and measuring the powers of vision of the human eye").
[4] Id.; see Attorney General Opinion DM-152 (1992) at 1; see also V.T.C.S. art. 4552-1.02(3) (defining "fitting lenses or prisms").
[5] V.T.C.S. art. 4552-1.02(5); see Attorney General Opinion DM-152 (1992) at 1-2.
[6] See Attorney General Opinion JM-454 (1986) at 1.
[9] Id. art. 4552-1.03(d).
[10] See 21 Tex. Reg. 1093-94 (1996) (codified at 22 T.A.C. § 280.5) (Tex. Optometry Bd.).
[11] See Letter to Lois Ewald, Executive Director, Texas Optometry Board (Nov. 17, 1995).
[14] See, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1968) at 3, O-2911 (1940) at 2.
[15] See State v. Jackson, 376 S.W.2d 341, 344-45 (Tex. 1964).
[17] Health and Safety Code ch. 481.
[19] See Gov't Code ch. 551 (Open Meetings Act); id. ch. 2001, subch. B (Administrative Procedure Act).