Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
Ma:ech14, 1986
JIM MATTOX
Attorney General
Supreme Court Building Mr. Fred S. Brinkley, Jr. Opinion No. JM-452
P. 0. Box 12546 Executive Director/Secretary
Austin. TX. 76711.2546
Texas State Board of Pharmacy Re: Whether the Texas State Board
5121475-2501
Telex 910/674-1367
211 East 7th Street of Pharmacy may license a foreign.
Telecopier 5121475.0266 Suite 1121 pharmacy graduate under certain
Austin, Texas 787101 circumstances
714 Jackson, Suite 700
Dear Mr. Brinkley:
Dallas, TX. 75202.4506
2141742-6944
You advise us that the Foreign Pharmacy Graduate Examination
Comission (FPGEC) of the National Association of Boards of Pharmacy
4624 Alberta Ave.. Suite 160 offers the Foreign Pharmacy Graduate Equivslency Examination to
El Paso, TX. 79905-2793 foreign pharmacy I:raduateswho seek educational equivalency certifi-
915/533G464
cation as partial fulfillment of the eligibility requirements fcr
licensure to practice pharmacy in the United States. You ask, in a
-1 Texas. Suite 7W situation in which the professional pharmacy degree cf the college is
Am, TX. 77002~3111 not accredited by the American Council on Pharmaceutical Education,
71312255866 whether the Texas Pharmacy Act authorizes the Texas State Board of
Pharmacy to licens~c an individual who graduates from a college of
806 Broadway, Suite 312
pharmacy located outside the United States if the applicant obtains an
Lubbock, TX. 79401-3479
FPGEC certification, fulfills other licensing requirements, and passes
606/747-5236 the licensing examfnation administered by the board. We conclude that
the Texas Pharmacy Act neither prohibits nor requires the licensing of
such persons by the Taxas State Board of Pharmacy.
4309 N. Tenth. Suite B
McAllen. TX. 76501-1665
512,682.4547 The Texas Phz,rmacyAct, article 4542a-1, V.T.C.S., provides, in
pertinent part, as :Eollows:
2M) Main Plaza, Suite 400
Sec. 5. In this Act, unless the context of its
San Antonio, TX. 76205.2797
512/225-4191
use clear:lyindicates otherwise:
(1) 'A.C.P.E.' means the American Council on
An Equal Opportunity/ Pharmaccltical Education.
Affirmative Action Employer
. . . .
(9) 'College of pharmacy' mesas a school,
university, or college of pharmacy that satisfies
the accreditation standards of A.C.P.E. as adopted
by the board: or that has degree requirements
p. 2050
Mr. Fred S. Brinkley, Jr. - Page 2 (m-452)
which meet the standards of accreditation set by
the board.
. . . .
Sec. 21. (a) To qualify for a license to
practice pharmac>,, an applicant for licensing by
examination must submit to the board a license fee
as determined by the board and a completed appli-
cation on a forn prescribed by the board with
satisfactory sworn evidence that he:
. . . .
(4) has gradca,tedand received s professional
degree from an a$credited college of pharmacy that
has been spprovediby the board; and
. . . .
Sec. 22. (a) To qualify for a license to
practice pharmacy 'byreciprocity, an applicant for
licensing must:
. . . .
(3) have graduated
-- and received a professional
degree from an accredited college of pharmacy that
has been approved:by the board;
. . . .
Sec. 26. (a) The board shall refuse to issue
a pharmacist 1i:ense for failure to meet the
requirements of Section 21 or 22 of this Act.
The Rules of the Texas State Board of Pharmacy state that
The following are the educational and age
requirements each applicant must meet:
(1) have obtsined a B.S. in pharmacy or a
Pharm.D. from a college of pharmacy accredited by
ACF'E and meeting the requirements of the board;
and
(2) provide satisfactory evidence that the age
of 21 years has been obtained.
p. 2051
Mr. Fred S. Brinkley, Jr. -.Page 3 (JM-452)
22 T.A.C. 9283.3 (1982).
The issue is neither the residency nor nationality of an
applicant but whether, under the Texas Pharmacy Act, persons who have
completed a pharmacy educal:ionat a pharmacy school outside the United
States may be licensed by the Texas State Board of Pharmacy [Board of
Pharmacy].
The dominant considerntion in construing statutes is legislative
intent. The Texas Supreme Court recently stated that
[nlo inflexible ,rule can be announced for the
construction of e,tatutes. However, the dominant
rule to be obsa?rved is to give effect to the
intention of the Legislature. Generally the
intent and meaning is obtained primarily from the
language of the statute. In arriving at the
intent and purpose of the law, it is proper to
consider the l:i,story of the subject matter
involved, the en3 to be attained, the mischief to
be remedied, and the purposes to be accomplished.
y Commission, 643 S.W.2d 681, 684
quoting wI;ji Coahoma V. Public Utility Commissioa, 626
S.W.2d 488,'490 (Tax. 19817 and Magnolia Petroleum Co. v. Walker, 83
S.W.2d 929 (Tex. 1935).
The Texas Pharmacy Ac: was enacted by House Bill No. 1628, Sixty-
seventh Legislature. in l%l to replace article 45428, V.T.C.S., and
to continue the existence and operation of the Board of Pharmacy as
part of the Texas Sunset C,ndssion review process provided by article
5429k, V.T.C.S. (now recod.LJi1e.d
as chapter 325, Government Code). The
bill analysis of Rouse BilL No. 1628, prepared for the House Committee
on Government Organizatti)n, on file with the Texas Legislative
Reference Library, expla::ns that the term "college of pharmacy"
defined in section S(9) of the bill appears in section 9(a) of the
replaced pharmacy act, but that the term was not defined in the prior
act. The bill analysis describes section 21(a) as "Section 9(a) of
the current act" (art. 454:2a) and section 22(a) as "Section 9(c) of
the current act." See mts 1979, 66th Leg., ch. 837, at 2202.
Section 9(a) of article 4542a provided that an applicant seeking to
take the examination given, by the Board of Pharmacy shall present
satisfactory evidence "that he has attended and graduated from a
reputable university, school, or college of pharmacy which meets the
requirements of the Board." (Emphasis added). Section 9(c) of
article 4542a authorized :%ensing by reciprocity for applicants who
furnish proof that they ar L registered as pharmacists in a stare whose
board "in its examination required the same general degree of fitness
required by this State."
p. 2052
Mr. Fred S. Brinkley, Jr. - Page 4 (JM-452)
The Texas State Board of Pharmacy Staff Report to the Sunset
Advisory Commission, dated June 19, 1980, states that
The licensing standards for pharmacists can be
broken down into three basic components: educa-
tion, experience and examination. With regard to
education, the ststute requires at least an under-
graduate degree from a board-approved. school of
pharmacy. (Fmphe,sisadded).
The Pharmacy Board Report to the Sunset Commission suggested modifica-
tions to the Pharmacy Board statute but contained no indication that
foreign pharmacy schools pr,esenteda problem and no suggested legisla-
tion on that subject. The Sunset Commission Report on the Board of
Pharmacy did not recommenC.any statutory changes relating to educa-
tional requirements.
We find no indication that the legislature intended the Texas
Pharmacy Act enacted In 195L, to deny to the Texas Board of Pharmacy
the discretion to approve, for licensing purposes, schools of pharmacy
that meet standards set by the board or to limit schools that are
eligible for approval to those schools of pharmacy that satisfy
accreditation standards of A.C.P.E. The legislature defined a
"college of pharmacy" to m'ssn a school of pharmacy that satisfies the
accreditation standards of A.C.P.E. as adopted by the board or that
has degree requirements whLch meet the standards of accreditat% set
by the board.
One of the fundament%:l rules of statutory construction is the
rule that words in connnonuse, when contained in a statute, will be
ordinary, and popular meaning, unless
read according to their nat:u.ral,
a contrary intention is clearly apparent from the context. See
National Life Co. v. Stly&, 169 S.W.2d 155, 157 (Tex. 1943);
Attorney General Opinion WW-1271 (1962). A dictionary may be
consulted to ascertain the meaning of a word. See Board of Insurance
Commissioners v. Duncan, 1174 S.W.2d 326, 328(Tex. Civ. App. -
Amarillo 1943, writ ref'd'l;; Attorney General Opinion B-1277 (1978).
Black's Law Dictionary 19 (5th cd. 1979), defines "accredit" to mean
"to recognize as having sufficient academic standards to qualify
graduates for higher educa,tion or for professional practice." In
Ballentine's Law Dictionary 14 (3rd ed. 1969), "accredit" means "to
recognize as worthy of mer:.tor rank, as to accredit a college."
The effect of Rule 2X).3, as presently adopted by the Board of
Pharmacy, is that only colleges of pharmacy in the United States meet
the board's educational requirements because foreign colleges of
pharmacy are not accredited by A.C.P.E. The Board of Pharmacy is
authorized to utilize the A.C.P.E. and its standards to assist the
board in determining the ~~rofessionaldegree programs of colleges of
p. 2053
Mr. Fred S. Brinkley, Jr. -.Page 5 (JM-452)
pharmacy that meet the edc,cationalrequirements of the board for the
purpose of licensure of pharmacists. We believe, however, that the
legislature did not intend the Texas Pharmacy Act to preclude the
board from utilizing other methods and tests which the board deems
appropriate for determining the colleges of pharmacy with standards
that merit board approval for the purpose of licensing pharmacists.
The state has the power to regulate licensed professions. See
Texas State Board of Pub+ Accountancy V. Fulcher, 515 S.W.2d 950
(Tex. Civ. App. - Corpus Christi 1974, writ ref'd n.r.e.). The
legislature may delegate psrt of that authority by creating licensing
agencies to make rules and ,cegulationsconsistent with the purpose of
their respective enablinp acts and to grant.- . refuse. or revoke
licenses. In so doing, the legislature may limit a licensing board's
authority. See Francisco v. Board of Dental Examiners, 149 S.W.2d
619, 621 (T=Tiv. App. - 'ii.ustin
1941, writ ref'd).
We believe that, if l:h.e legislature intended the Texas Pharmacy
Act to prohibit the licerls,ureof graduates of all schools located
outside the United Statecl, it expressly would have provided such
prohibitions or 1imitation:l. We conclude that the Texas Pharmacy Act
authorizes the Board of Phz.tmacyto decide whether FPGEC certification
of a foreign pharmacy graduate constitutes an appropriate method or
test for determining whether the degree requirements of a school
located outside the United !;tatesmeet the standards of accreditation
set by the board. Cf. V.T.C.S. art. 4495b, $5.04 (individual who has
been student of a fzgn medical school is eligible for licensurc to
practice medicine in this state if he meets specific requirements);
V.T.C.S. art. 4544, 62 (l'erasState Board of Dental Examiners may
provide in rules and reguls,tionsthe procedures and requirements for
graduates of foreign dent;Il.schools to become licensed to practice
dentistry); V.T.C.S. art. 4518, $§I, 3 (Board of Nurse Examiners shall
accredit schools of nursing; and educational programs that meet its
requirements and standards .and every applicant for registration must
complete an accredited pro;gram of professional nursing education);
V.T.C.S. art. 4552-3.02 (applicant for license to practice optometry
must graduate from a reputable university or college of optometry that
meets the requirements of the Texas Optometry Board).
Second, you also ask whether the Board of Pharmacy may require a
foreign pharmacy graduate tihohas obtained an FPGEC certification to
pass an oral communicatioas skill examination to determine such a
person's oral communicatior,ability. It is our opinion that the Board
of Pharmacy does not have authority to require an applicant for
licensing to pass an oral communications skill examination in order to
qualify for a license.
It is well establish#!d that an administrative agency has only
those powers expressly grarted to it by statute or necessarily implied
p. 2054
Mr. Fred S. Brinkley, Jr. - :Page6 (JM-452)
from the statutory authority conferred or duties imposed. See City of
Sherman v, Public Utility Commission, 643 S.W.2d 681, 686 (G. 1983);
Stauffer v. City of San Ant;&, 344 S.W.2d 158 (Tex. 1961).
Section 21 of the Texas Pharmacy Act expressly provides qualifi-
cations for licensing by examination. The legislature specified
qualifications relating to age, moral character, internship or other
experience, education, and the passage of "the examination required by
the board." Sec. 21(a). The examination shall be prepared to measure
the competence of the appU.c,antto engage in the practice of pharmacy
and the board may employ and cooperate with any organization or
consultant, including a national testing service, in the preparation
and grading of an appropriate examination. Sec. 21(d), (e). Section
21(f) directs that each applicant for licensing shall obtain practical
experience in the practice of pharmacy. Under section 21(g), the
board shall establish stand,ardsfor internship or any other program
necessary to qualify an applicant for the licensing examination and
shall determine the necessary qualifications for any preceptors used
in an internship or other program.
Rules and regulations adopted by Texas administrative agencies
may not impose additional burdens, conditions, or restrictions in
excess of or inconsistent with statutory provisions. See Bexar County
Bail Bond Board v. Deckard, 604 S.W.2d 214, 216-17 (TX Civ. App. -
San Antonio 1980, no writ) (in absence of statutory language indica-
ting legislative intent zbat a board have the power to add to
licensing qualifications enumerated by the legislature, it is not
within the power of a board to impose qualifications that add to those
expressed in the statute).
We find nothing in t'xe Texas Pharmacy Act which suggests that
oral communication ability is a qualification for licensure or would
constitute express or impl.ied authority to the board to require
passage of an oral communj.c:ationskills examination. You advise us
that the Foreign Pharmacy Graduate Equivalency Examination is given
only in English and that a requirement for FPGEC certification is
documentation that the pe:rrronhas passed the Test of English as a
Foreign Language (TOEFL) examination. Oral communication skill is not
necessarily the same as Enl&ish language skill, but it appears that a
person's English language skill will have received some measure of
testing when he obtains an FPGEC certification.
The legislature has given the Board of Pharmacy broad power to
approve the educational sta,ndardsof the colleges of pharmacy which
the board deems necessary :iorthe purpose of licensing pharmacists in
this state. While it is O'UCopinion that oral communication skill as
such is not a qualificati~xlfor licensure, we believe the Board of
Pharmacy may require an oral communication skills examination to be
given uniformly to all graduates of the colleges of pharmacy, if the
p. 2055
Mr. Fred S. Brinkley, Jr. ..Page 7 (JM-452)
,-
board needs to ascertain their skill for the purpose of evaluating the
quality of education acquired by the graduates.
SUMMARY
The Texas Pharmacy Act neither prohibits nor
requires the Tex,ss State Board of Pharmacy to
license persons who graduate from colleges of
pharmacy located outside the United States. The
Texas Board of Pharmacy has discretion to approve
colleges of pharmacy for licensing purposes and
=Y utilize accreditation or certification by
agencies it deems appropriate to assist the board
in determining t'lacolleges of pharmacy that meet
standards set by the board. The Texas Board of
Pharmacy has not bean granted express or implied
authority to add verbal communication ability to
the qualifications for a license to practice
pharmacy.
Jr?Jj+L&
Attorney General of Texas
JACK RIGRTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2056