Untitled Texas Attorney General Opinion

- i OFTEXAS Honorable R.L. Wilson, Member Texas Board of Pharmacy Huntsville, Texas Dear Sir: Opinion No. O-3577 Re: (1) Whether the Texas Board of Pharmacy may refuse to issue a reciprocity license to an appli- cant licensed in another State on grounds of moral character. (2) Whether the Board may call an ap- pltcant who seeks a license by reciprocity before it for examina- tion as to character, ethics and past experience. We have given careful consideration to the above ques- tions upon which you have requested our opinion. These ques- tions involve a construction of Section 9 of 4542a, Vernon's Annotated Civil Statutes, known as the Texas Pharmacy Law. We quote said Section 9 and underscore those provisIons which re- late dfrectly to the questions under consideration: "Sec. go Every applicant for license as a registered Pharmacist shall be not less than twenty-one years of age, of good moral character, and a graduate of a school or college of pharma- cy recognized by the Board. Such applicant, in addition to the time required to graduate from school or college of pharmacy and exclusive of the portion of the year spent in attendance at school or college, shall have had at least one year of practical experience in retail pharmacy under the dFrect supervision of a registered pharmacfst, which experfence shall be principal- ly work directly related to selling drugs and poisons, compounding of pharmaceutical prepara- tions and physicians' prescrlptfons, and keeping of records and maklng reports required under the State and Federal statutes; and to obtain a license shall pass a theoretlcal and practical examination satisfactory to the Board of pharma- 0 prOVfa8a that the Board may at its dlscre- z?on grant lfcense as pharmacist to persons who Honorable R.L. Wilson, page 2 o-3577 furnish Droof that thev hav such In some other Statg9-v good moral character, provided such other State In its examination required the same general degree of fitness~required by this State and grants the same reciprocal privileges to pharma- clsts of this State; and provided that exemption from the graduate in pharmacy requirement for entrance to examination for registration as pharmacist shall be allowed to persons who be- fore this Act becomes effective have been em- ployed for at least six months in a retail phtir- macy under the supervision of a registered phar- macist, and who register with the Board for such examination within one year after this Act be- oomes effective a-hdwho, within not more than five gears from date~~onwhich this Act becomes effective, produce satisfactory evidence to the Board of Pharmacy of having haa four years of pharmaceutical tralnfng under the supervision of a registered pharmacist and shall success- fully pass the examination required by the Board of Pharmacy." (Underscoring ours). The validity of the Texas Pharmacy Law as a regulation of the profession of pharmacy in the Interest of the public health cannot be questtoned. 21 Tex. Jur.,~~511;Ratizalv. City of l&n Antonio, 221 S-W. 237. The good moral character of~those practicing pharmacy is as vital to the safety of the public as IS their training and experience, The Legislature may properly make character as well as training a prerequisite to a llcgnse, 3 American Jwisprudenc,e 372; McDonough v.'Gooacell, 13 Cal. ?28) 741, 91 P, (2a) 1035, 123 A. L. R, 1205. The discretion and duty to pass upon the moral fitness of applicants may be conferred by the Legislature upon the administrative board or' " agency charged with granting the licenses. 48 Corpus Jurls 1090. We have been unable to find any Texas cases passing upon the precise questfons submitted, but we refer to two cases frdm other States which by analogy are applicable. The Supreme~Court of Oklahoma In Re Mosher, 24 Okla. 61, 102 P. 705, held that a reclproclty provision In the Oklahoma Constitution as to licens- ing attorneys dfd not preclude inquiry into the moral qualifl- cations of applicants from other.States, Fernel v. State Board of Keaical Examiners, 267 Pac. 561, by the California Court of Appeals hbldsi'thatan tippllcantfor a reciprocrty certificate to practice niedlclnetiustsatI@ the board of his good moral character, under the provfsions"of the Medlcal Practice Act of California, We quote from the courts opinion in that case: Honorable R.L. Wilson, page 3 o-3577 "If It be required that one shall show reasonable evidence that he Is an ordinarily decent fellow before he shall have the privl- lege of submitting himself to the 'examination provided before he may emerge from the status of a student to.that of a licensed practltlon- er in our state, what reason could be advanced to excuse this showing In a recent comer in our midst, whose history is unknown to us;and who may have found it convenient to seek pastures new for reasons not comfortable to disclose?" The underscored portion of Section 9 of the Act quoted above, manifests, in our opinion, a clear intention on the part of the Legislature to make proof of good moral character of the applicant to the board's satisfaction a prerequisite to the granting of a license to one who was previously licensed in another State. If the board acts arbitrarily and without justl- f~icationIn this regard, the applicant may have his remedy ln the courts. We likewise believe that it would be within the author- ity and discretion of the State Board of Pharmacy to require ap- plicants for licenses as pharmacists, whether by examination or reciprocity, to appear before it in order that It may make per- sonal examination of the applicant as to his moral Character, ethics, experience, etc. Section 4 of Article 4542a provides in part: ‘I* * l* The Board shall have the power to make by-laws and regulations, not Inconsistent with the law, for the proper performance of Its duties * * **'I Requiring the personal appearance of applicants before the board would, we believe, come within the scope of discretion as to the manner of discharging Its duties which has been dele- gated to the board by the Legislature. As stated at 27 Texas Jurisprudence 888: "In conferring power to license and prescrib- ing rules under which the power Is to be exercised, a law-making body does not delegate a legislative function, but an adminlstratlve or quasi-judicial one, even though considerable latitude is given the licensing offlclal in exercising such power." Honorable R, L, Wilson, page 4 0 -3577 Yours very truly ATTORNEY GENERAL OF TFXAS By s/Walter R. Koch WalteFR. Koch Assistant WRK:RS:wc APPROVED JUN 9, 1941 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENHLAL Approved Opinion Committee By s/BWB Chairman ,