Can Texas require a veterinarian to register with DPS before dispensing controlled substances?

TX AG Opinion GA-0547: Can the vet board make vets register with DPS to dispense drugs?

Plain-English summary

The Texas Board of Veterinary Medical Examiners has a rule, 22 Texas Administrative Code section 573.43, that bars a licensed veterinarian from prescribing, dispensing, delivering, or ordering delivered any controlled substance unless the vet is registered with the Texas Department of Public Safety (DPS) to do so. Someone challenged the rule, arguing the Board had overstepped the rulemaking power the Legislature gave it. The Board's executive director asked the Attorney General whether the rule was a valid exercise of the Board's discretion, and separately whether the Texas Controlled Substances Act gives DPS exclusive authority to make rules about controlled substances, which would block the Board from doing so.

On the first question, the Attorney General said the rule is valid. A state agency has the powers the Legislature expressly gives it plus those reasonably necessary to carry out its duties. The Board's enabling statute directs it to adopt rules to protect the public and to maintain a high standard of integrity, skills, and practice in veterinary medicine. Rule 573.43 follows from those duties. Just as important, the rule does not conflict with the Controlled Substances Act. The Act says a person who is not a registrant may not dispense a controlled substance, defines "dispense" broadly (including prescribing, administering, packaging, labeling, or compounding to prepare the substance for delivery), and defines "practitioner" to include a veterinarian. So the Act itself already requires a dispensing veterinarian to register with DPS.

The challenger had pointed to an exemption in the Act, section 481.062(a)(1), which lets an agent or employee of a registered dispenser act without registering. But the Attorney General read that exemption narrowly: it lets such an agent or employee possess a controlled substance, not dispense one. Because the rule only restates, for the vets the Board regulates, what the Act already requires, it does not exceed the Board's authority.

On the second question, the Attorney General concluded the Act does not give DPS exclusive rulemaking authority over controlled substances, and could not, given the overlapping federal controlled-substances statutes. The opinion declined to speculate about the Board's authority to adopt other controlled-substance rules, since only rule 573.43 was before it, and emphasized that this particular rule simply mirrors the Act: a person who dispenses controlled substances must register with DPS, and the agent-or-employee exemption covers only possession, not dispensing.

Currency note

This opinion was issued in 2007. 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 Controlled Substances Act, the Occupations Code veterinary provisions, the Board's administrative rule, and the federal controlled-substances statutes cited here may have changed since 2007. Confirm the current text of Health and Safety Code chapter 481, Occupations Code chapter 801, and 22 Texas Administrative Code section 573.43 before relying on this analysis.

Who this opinion affected (as of 2007)

Licensed veterinarians: The opinion confirmed that a vet had to be registered with DPS to dispense controlled substances, and that the Board's rule requiring it was valid. The Act itself, the opinion explained, already imposed that registration requirement on a dispensing veterinarian.

The Board of Veterinary Medical Examiners: The opinion told the Board that rule 573.43 was within its authority, flowing from its duties to protect the public and maintain professional standards, and that it merely restated the Act's requirements for the vets the Board regulates.

Agents and employees of registered dispensers: The opinion clarified that the Act's exemption let them possess controlled substances, not dispense them, so the exemption did not give an unregistered vet a path to dispense.

Common questions

Does a Texas veterinarian have to register with DPS to dispense controlled substances?
Yes. The opinion explained that the Controlled Substances Act requires a person who dispenses controlled substances, including a veterinarian, to register with DPS, and that the Board's rule requiring it is valid.

Was the Board allowed to make this rule, or did it overstep?
The Attorney General concluded the rule was a valid exercise of the Board's authority. It follows from the Board's statutory duties to protect the public and maintain professional standards and does not conflict with the Act.

Doesn't the Act exempt an agent or employee from registering?
The Act exempts an agent or employee of a registered dispenser, but only to possess a controlled substance. The opinion read the exemption as not allowing such a person to dispense, so it did not let an unregistered vet dispense.

Does DPS have exclusive authority to make controlled-substance rules?
No. The opinion concluded the Act does not give DPS exclusive rulemaking authority over controlled substances, and noted it could not, given the federal statutes in this area. The opinion did not address other possible Board rules.

Background and statutory framework

The Texas Controlled Substances Act provides that a person who is not a registrant may not dispense a controlled substance, and that a registered person may dispense to the extent authorized by the registration; it defines "dispense" to include prescribing, administering, packaging, labeling, or compounding to prepare a substance for delivery, defines "registrant," "director," and "dispenser," and defines "practitioner" to include a veterinarian. Together, these provisions require a dispensing veterinarian to register with the director of DPS or a designee (Tex. Health & Safety Code Ann. §§ 481.001-.205 (Vernon 2003 & Supp. 2006); § 481.061(a)-(b) (Vernon 2003); § 481.002(11), (12), (13), (39)(A), (45) (Vernon Supp. 2006); § 481.063 (Vernon 2003)). The Act exempts an agent or employee of a registered dispenser acting in the usual course of business from registering, but only to possess the substance (Tex. Health & Safety Code Ann. § 481.062(a)(1) (Vernon 2003)).

The Board adopted the rule under Occupations Code chapter 801, which regulates the practice of veterinary medicine, defines "veterinarian," and empowers the Board to adopt rules as necessary, to adopt rules of professional conduct, to protect the public, and to ensure certain therapies are performed only by or under a veterinarian (Tex. Occ. Code Ann. § 801.002(1), (5)(A)-(B), (6), § 801.151(a)-(c) (Vernon 2004)). Rule 573.43(a) provides that a licensee may not prescribe, dispense, deliver, or order delivered any controlled substance unless currently registered with DPS to dispense controlled substances; other parts of the rule address federal Drug Enforcement Administration registration and were not at issue (22 Tex. Admin. Code § 573.43(a), (b)-(c) (2007)).

A state agency has only the powers expressly conferred plus those implied powers reasonably necessary to carry out its express responsibilities (State v. Pub. Util. Comm'n, 883 S.W.2d 190, 194 (Tex. 1994); R.R. Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)). The Attorney General concluded rule 573.43 follows from the Board's duties to protect the public and maintain professional standards and is not inconsistent with section 481.062, which permits only possession by an agent or employee, not dispensing, so the rule is valid. The Act does not confer exclusive rulemaking authority on DPS over controlled substances, and could not given the federal statutes; the opinion did not speculate about other Board rules (21 U.S.C.A. § 801 (West 1999 & Supp. 2006)).

Citations

Statutes and rules:

• Tex. Health & Safety Code Ann. §§ 481.001-.205 (Vernon 2003 & Supp. 2006)
• Tex. Health & Safety Code Ann. § 481.061(a)-(b) (Vernon 2003)
• Tex. Health & Safety Code Ann. § 481.002(11), (12), (13), (39)(A), (45) (Vernon Supp. 2006)
• Tex. Health & Safety Code Ann. § 481.063 (Vernon 2003)
• Tex. Health & Safety Code Ann. § 481.062(a)(1) (Vernon 2003)
• Tex. Occ. Code Ann. § 801.002(1), (5)(A)-(B), (6) (Vernon 2004)
• Tex. Occ. Code Ann. § 801.151(a)-(c) (Vernon 2004)
• 22 Tex. Admin. Code § 573.43(a), (b)-(c) (2007)
• 21 U.S.C.A. § 801 (West 1999 & Supp. 2006)

Cases:

• State v. Pub. Util. Comm'n, 883 S.W.2d 190, 194 (Tex. 1994)
• R.R. Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0547
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0547.pdf

Original opinion text

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

GREG ABBOTT

May 10, 2007

Dewey E. Helmcamp III, J.D.
Executive Director
Texas Board of Veterinary Medical Examiners
333 Guadalupe, Suite 3-810
Austin, Texas 78701-3942

Opinion No. GA-0547

Re: Validity of a rule adopted by the Texas Board of Veterinary Medical Examiners that prohibits a Board licensee from dispensing any controlled substance unless the licensee is registered with the Texas Department of Public Safety (RQ-0553-GA)

Dear Mr. Helmcamp:

You ask about the validity of a rule adopted by the Texas Board of Veterinary Medical Examiners (the "Board") that prohibits a Board licensee from dispensing any controlled substance unless the licensee is registered with the Texas Department of Public Safety (the "DPS") under the Texas Controlled Substances Act, chapter 481 of the Health and Safety Code (the "Act"). See TEX. HEALTH & SAFETY CODE ANN. §§ 481.001-.205 (Vernon 2003 & Supp. 2006).[1]

Section 481.061 of the Act states in relevant part:

(a) Except as otherwise provided by this chapter, a person who is not a registrant may not manufacture, distribute, prescribe, possess, analyze, or dispense a controlled substance in this state.

(b) A person who is registered by the director . . . may possess, manufacture, distribute, analyze, dispense, or conduct research with [a controlled] substance to the extent authorized by the person's registration and in conformity with this chapter.

Id. § 481.061(a)-(b) (Vernon 2003) (emphasis added). A "registrant" is a person who is registered with the director in accordance with the Act's requirements. See id. §§ 481.002(45) (Vernon Supp. 2006), 481.063 (Vernon 2003). The "director" is "the director of the [DPS] or an employee of the [DPS] designated by the director." Id. § 481.002(11). "Dispense" means "the delivery of a controlled substance in the course of professional practice or research, by a practitioner or person acting under the lawful order of a practitioner, to an ultimate user or research subject." Id. § 481.002(12). "Dispense" also "includes the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for delivery." Id. Likewise, a "dispenser" is "a practitioner, institutional practitioner, pharmacist, or pharmacy that dispenses a controlled substance." Id. § 481.002(13). Finally, a "practitioner" is defined to include a veterinarian. Id. § 481.002(39)(A). In sum, the Act requires a veterinarian who dispenses a controlled substance to register with the director of the DPS or his designee.

The Act also furnishes a number of exemptions from registration. Certain "persons are not required to register and may possess a controlled substance under this chapter: (1) an agent or employee of a registered manufacturer, distributor, analyzer, or dispenser of the controlled substance acting in the usual course of business or employment." Id. § 481.062(a)(1) (Vernon 2003) (emphasis added).

The Board adopted the rule at issue here under chapter 801 of the Occupations Code, which regulates the "practice of veterinary medicine," defined in relevant part as:

(A) the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique; [and]

(B) the representation of an ability and willingness to perform an act listed in Paragraph (A)[.]

TEX. OCC. CODE ANN. § 801.002(5)(A)-(B) (Vernon 2004). A "veterinarian" is "a person licensed by the [B]oard under this chapter to practice veterinary medicine." Id. § 801.002(1), (6). The Board is empowered to "adopt rules as necessary to administer this chapter" and to "adopt rules of professional conduct appropriate to establish and maintain a high standard of integrity, skills, and practice in the veterinary medicine profession." Id. § 801.151(a)-(b). The Board is required to adopt rules to:

(1) protect the public; and

(2) ensure that alternate therapies, including ultrasound diagnosis and therapy, magnetic field therapy, holistic medicine, homeopathy, chiropractic treatment, acupuncture, and laser therapy, are performed only by a veterinarian or under the supervision of a veterinarian.

Id. § 801.151(c).

Rule 573.43, about which you inquire, provides in relevant part that "a licensee may not prescribe, dispense, deliver, or order delivered any controlled substance unless the licensee is currently registered with the . . . (DPS) to dispense controlled substances." 22 TEX. ADMIN. CODE § 573.43(a) (2007) (Tex. Bd. of Veterinary Med. Exam'rs, Prescribing and/or Dispensing Medications).[2] You indicate that this rule has been challenged as an unlawful exercise by the Board of the Legislature's grant of authority to adopt rules. See Request Letter, supra note 1, at 2; see also Board Brief, supra note 1, at 1; Ferrill Brief, supra note 1, at 3-5. It is argued that a veterinarian who is not registered with the DPS may dispense controlled substances under the exemption of section 481.062 of the Act as "an agent or employee of a registered . . . dispenser of the controlled substance acting in the usual course of business or employment." TEX. HEALTH & SAFETY CODE ANN. § 481.062(a)(1) (Vernon 2003). See Ferrill Brief, supra note 1, at 3; see also Board Brief, supra note 1, at 2. You ask whether rule 573.43 is a valid exercise of the Board's discretion.

A state administrative agency has only those powers expressly conferred on it by the Legislature as well as those implied powers that are reasonably necessary to carry out the express responsibilities mandated by the Legislature. See State v. Pub. Util. Comm'n, 883 S.W.2d 190, 194 (Tex. 1994); R.R. Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992). The rule-making authority of the Board is designed to "protect the public" as well as to "establish and maintain a high standard of integrity, skills, and practice in the veterinary medicine profession." TEX. OCC. CODE ANN. § 801.151(b)-(c) (Vernon 2004). The Board rule in question follows from the Board's duties to protect the public and to maintain high standards in the profession it regulates. See id. Moreover, the rule is not inconsistent with section 481.062 of the Act, which permits a non-registrant who is an "agent or employee" of a licensee to "possess" a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.062(a)(1) (Vernon 2003). In no respect does section 481.062 allow an agent or employee to dispense a controlled substance. See id. Accordingly, we conclude that the referenced portion of the Board's rule is a valid exercise of the Board's authority.

You also ask whether the Act confers "exclusive rulemaking authority on the DPS with regard to controlled substances and thereby preempt[s] or preclude[s] rulemaking on controlled substances by the Board." Request Letter, supra note 1, at 2. You do not inquire about any particular Board rule other than rule 573.43, and therefore we will not speculate about the Board's authority to enact additional rules regarding controlled substances. The Act does not explicitly confer exclusive rule-making authority on the DPS with respect to controlled substances. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.001-.205 (Vernon 2003 & Supp. 2006). And indeed, it could not do so in light of federal statutes that regulate controlled substances. See, e.g., 21 U.S.C.A. § 801 (West 1999 & Supp. 2006). Moreover, as we have indicated, rule 573.43 merely restates, with regard to those persons over whom the Board has jurisdiction, the substance of the Act's requirements. An individual who dispenses controlled substances must register with the DPS, and the exemptions provided by section 481.062(a) permit only the possession, rather than the dispensing, of a controlled substance by an agent or employee of a registrant.

SUMMARY

The Texas Board of Veterinary Medical Examiners is authorized to adopt a rule that prohibits a Board licensee from dispensing any controlled substance unless the licensee is registered to do so with the Texas Department of Public Safety.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Dewey E. Helmcamp III, J.D., Executive Director, Texas Board of Veterinary Medical Examiners, to Honorable Greg Abbott, Attorney General of Texas, at 1-2 (Nov. 9, 2006) [hereinafter Request Letter]; see also Memorandum Brief attached to Request Letter from Lee H. Mathews, General Counsel, Texas Board of Veterinary Medical Examiners, to Opinion Committee, Office of the Attorney General (Nov. 9, 2006) [hereinafter Board Brief]; Brief attached to Request Letter from Donald A. Ferrill, Brown, Pruitt, Peterson & Wambsganss, P.C., to Lee H. Mathews, Texas Board of Veterinary Medical Examiners (Sept. 29, 2006) [hereinafter Ferrill Brief] (Request Letter and attached briefs on file with the Opinion Committee, also available at http://www.oag.state.tx.us).

[2] The remainder of rule 573.43 relates to the requirement and potential waiver of registration with the federal Drug Enforcement Administration. See 22 TEX. ADMIN. CODE § 573.43(b)-(c) (2007) (Tex. Bd. of Veterinary Med. Exam'rs, Prescribing and/or Dispensing Medications). You do not inquire about these sections. See Request Letter, supra note 1, at 1-2.