(dissenting).
I dissent to the reversal of this conviction. The majority do not hold simply that the evidence is insufficient to show that appellant violated the Controlled Substances Act when he wrote the prescription for Garner; they hold that because the prescription was written by a doctor, it is impossible to show a violation of that law, regardless of how abbreviated an evaluation of the grounds for writing the prescription was made, or even if no evaluation was made at all. If the actor is a practitioner and a prescription is written, the delivery of a Schedule II controlled substance by prescription is protected under the majority’s holding. Even a set of facts as astounding as that set out in United States v. Moore, *389423 U.S. 122, at 126, 96 S.Ct. 335, at 338, 46 L.Ed.2d 333, at 339, cited by the majority, apparently would be lawful under the holding of the majority.
The majority state:
“We are not aware of any provision or provisions of the Controlled Substances Act which makes it a penal offense for a practitioner to issue a written prescription for a Schedule II controlled substance without giving a medical examination or taking other steps deemed proper in the course of professional practice.”
I would suggest that they have failed to address the issue of whether such acts would violate Sec. 4.03 of the Controlled Substances Act, which provides in part:
“(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”
Phenmetrazine, the substance in this case, is listed in Penalty Group 3. Sec. 4.02(d)(1)(C), Controlled Substances Act. The majority persuasively demonstrate that such acts do not violate Secs. 4.08 and 3.08, but failure of those sections to prohibit the acts does not warrant the conclusion that the acts are authorized by the Act. The language of Sec. 4.03(a), supra, prohibits every delivery of such substances unless expressly authorized by the Act. The conduct here was a delivery (constructive transfer by prescription, see Sec. 1.02(8) and (10)), and unless a specifically authorized delivery, it was an unlawful delivery. I am not aware of any provision or provisions of the Controlled Substances Act that authorize unlimited prescription-writing powers granted to physicians by the majority.
According to footnote 1 of the majority, Sec. 4.03 does not apply for two reasons. First, “dispense” and “deliver” are characterized as “separate and distinct.” It is asserted there, “ ‘Dispense’ relates to those instances where dispensing [delivery?] is pursuant to the lawful order of a practitioner. Thus Sections 4.08 and 3.08 relate to the offense of unlawful dispensing a controlled substance by a practitioner.” This language leaves the impression that dispensing is by definition lawful, yet unlawful dispensing is an offense! The parties in this case and the people of Texas are entitled to clarification of this paradox. Is dispensing by definition lawful, or is there such an offense as unlawful dispensing?
Second, the majority in footnote 1 state that Sec. 4.03 does not apply because that section exempts deliveries authorized by the Act. Reference is made to Sections 3.01(b) and 1.02(24), yet those provisions read:
“Persons registered by the director under this Act to manufacture, distribute, dispense, analyze, or conduct research with controlled substances may possess, manufacture, distribute, dispense, analyze, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this Act.” Sec. 3.01(a). (Emphasis added.)
“ ‘Practitioner’ means:
“(A) a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze or conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; . . . ” Sec. 1.02(24). (Emphasis added.)
The majority, without discussion of the apparent limitations of the emphasized portions of the quoted provisions, asserts “the Act elsewhere provides for authorization” for unlimited prescription-writing powers, yet neglects to specifically identify the statutory language that “elsewhere” so provides.
Furthermore, under the majority’s holding that all prescriptions written by practitioners for Schedule II substances, are valid prescriptions, read in conjunction with Sec. 3.01(e)(3) and Sec. 4.04(a) of the Act, anyone possessing such a controlled substance pursuant to any such prescription is likewise in lawful possession of that controlled substance. Sec. 3.01, supra, provides in part:
*390“(e) The following persons need not register and may lawfully possess controlled substances under this Act:
“(3) an ultimate user, as that term is defined herein, or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a Schedule V substance.” (Emphasis added.)
Section 4.04(a) prohibits possession of a controlled substance “Except as authorized by this Act”, e. g. possession pursuant to a lawful order of a practitioner, which lawful orders include all practitioner-written prescriptions, under the majority’s holding today.
Unless authorization is shown under the Act for unlimited prescription-writing powers for physicians, I must dissent.