Attorney General Opinion JM-0452

JIM MATTOX Attorney General Supreme Court Building P. 0. Box 12546 Austin. TX. 76711.2546 5121475-2501 Telex 910/674-1367 Telecopier 5121475.0266 714 Jackson, Suite 700 Dallas, TX. 75202.4506 2141742-6944 4624 Alberta Ave.. Suite 160 El Paso, TX. 79905-2793 915/533G464 -1 Texas. Suite 7W Am, TX. 77002~3111 71312255866 806 Broadway, Suite 312 Lubbock, TX. 79401-3479 606/747-5236 4309 N. Tenth. Suite B McAllen. TX. 76501-1665 512,682.4547 2M) Main Plaza, Suite 400 San Antonio, TX. 76205.2797 512/225-4191 An Equal Opportunity/ Affirmative Action Employer The Attorney General of Texas Ma:ech 14, 1986 Mr. Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy 211 East 7th Street Suite 1121 Austin, Texas 787101 Dear Mr. Brinkley: Opinion No. JM-452 Re: Whether the Texas State Board of Pharmacy may license a foreign. pharmacy graduate under certain circumstances You advise us that the Foreign Pharmacy Graduate Examination Comission (FPGEC) of the National Association of Boards of Pharmacy offers the Foreign Pharmacy Graduate Equivslency Examination to foreign pharmacy I:raduates who seek educational equivalency certifi- cation as partial fulfillment of the eligibility requirements fcr licensure to practice pharmacy in the United States. You ask, in a situation in which the professional pharmacy degree cf the college is not accredited by the American Council on Pharmaceutical Education, whether the Texas Pharmacy Act authorizes the Texas State Board of Pharmacy to licens~c an individual who graduates from a college of pharmacy located outside the United States if the applicant obtains an FPGEC certification, fulfills other licensing requirements, and passes 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. The Texas Phz,rmacy Act, article 4542a-1, V.T.C.S., provides, in pertinent part, as :Eollows: Sec. 5. In this Act, unless the context of its use clear:ly indicates otherwise: (1) 'A.C.P.E.' means the American Council on Pharmaccltical Education. . . . . (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,ted and 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 'by reciprocity, 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:ion at 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 S.W.2d 488,'490 Coahoma V. Public Utility Commissioa, 626 (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,sis added). 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,esented a 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 connnon use, when contained in a statute, will be read according to their nat:u.ral, ordinary, and popular meaning, unless 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:.t or 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 ~~rofessional degree programs of colleges of p. 2053 Mr. Fred S. Brinkley, Jr. -. Page 5 (JM-452) pharmacy that meet the edc,cational requirements 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 ,cegulations consistent with the purpose of their respective enablinp licenses. acts and to grant. - . refuse. or revoke In so doing, the legislature may limit a licensing board's authority. See Francisco v. 619, 621 (T=Tiv. App. Board of Dental Examiners, 149 S.W.2d - 'ii.ustin 1941, writ ref'd). We believe that, if l:h.e legislature intended the Texas Pharmacy Act to prohibit the licerls,ure of 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.tmacy to 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 !;tates meet 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'eras State Board of Dental Examiners may provide in rules and reguls,tions the 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 tiho has 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. - :Page 6 (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,ant to 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,ards for 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:ation skills 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:rrron has 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,ndards of the colleges of pharmacy which the board deems necessary :ior the purpose of licensing pharmacists in this state. While it is O'UC opinion that oral communication skill as such is not a qualificati~xl for 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'la colleges 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