Texas State Board of Pharmacy Overreaches Statutory Mandate Regarding Deferred Adjudications/Community Supervision:

 

I am currently serving as the defense attorney in several cases before the Texas State Board of Pharmacy that involve clients who are presently on deferred adjudication/community supervision for drug related offenses. In all of these cases the Board has taken the position that their Rules mandate the outright revocation of the license of any pharmacist or pharmacist tech who is on community supervision or probation for a felony drug related offense regardless of the circumstances or any other factor. This is outrageous and a clear contravention of their statutory mandate.

 

All administrative licensing agencies are creatures of statute and accordingly must derive their authority to regulate from law passed by the state Legislature. The Texas Pharmacy Act sets forth the public mandate of the Texas State Board of Pharmacy in § 551.002 of the Texas Occupations Code. This Sections states that it is the purpose of the Pharmacy Act and the Pharmacy Board “to regulate in the public interest the practice of pharmacy in this state as a professional practice…” in such a way that will “promote, preserve, and protect the public health, safety, and welfare.” Tex. Occ. Code § 551.002. Try as it might, the Board must regulate and discipline pharmacists while remaining within the confines of this public mandate.

 

In defiance of § 551.002, the Board has, within the past three years, passed and frequently amended Title 22 § 281.64 of the Texas Administrative Code in such a way as to make it impossible for any pharmacist or pharmacist tech to retain their license if they are also placed on deferred adjudication. For example, under Rule 218.64 any pharmacist or pharmacist tech who has been convicted of or is currently on deferred adjudication or deferred disposition for a felony involving either 1) mere possession or 2) the manufacture, delivery, or possession with intent to deliver, fraud, or theft of drugs is automatically subject to the revocation or denial of their license. This is without regard to the individual’s culpability, rehabilitation, age at the time of offense, or current fitness to serve as a licensed pharmacist or pharmacist tech. In many situations the pharmacist is not even deemed eligible for licensure until 20 years has passed since the date of disposition.

 

This Rule is in clear conflict with the Board’s statutory mandate. That mandate requires the Board to regulate “in the public interest” and in such a way that will “promote, preserve, and protect the public health, safety, and welfare.” Tex. Occ. Code § 551.002. Licensure revocation based merely in the bare fact of being on community supervision or probation for a drug-related offense satisfies neither of these standards. This Rule takes no account of the pharmacist or pharmacist tech’s extent of involvement in the criminal offense, whether they were even aware a criminal offense was being committed, or whether their participation was minimal or expansive. No account is taken of the licensee’s subsequent rehabilitation, their youthfulness at the time of the offense, or their present and future value to the community. The only thing that matters is whether or not twenty years have passed since the date of disposition.

 

Keep in mind that under Chapter 53 of the Texas Occupations Code licensing agencies such as the Pharmacy Board are required to take into account a set of specified mitigating factors, many of which are listed above, when taking a disciplinary action against a licensee who has actually been convicted of the same offense. Arguably on this ground alone, the Pharmacy Board’s Rule 281.64 is ultra vires (A Latin phrase crucial to administrative law which translates as “beyond the powers”) and hence void.

 

The only real explanation for this outrageous policy is a desire to punish pharmacists merely for the fact that they are on criminal probation and thereby guard the public image of the Pharmacy Board. There is no rational reason for summarily revoking a pharmacist who is on deferred adjudication for a drug-related offense. This is underlined by the fact that the Board freely permits chemically dependent and impaired pharmacists to continue to practice. Almost by definition these licensees have committed acts that would be deemed, had they been prosecuted, criminal possession, prescription fraud, and any of a number of offenses under the Texas Health and Safety Code. Many of these licensees also have ongoing addiction and chemical dependency issues, a circumstance which would arguably make their continued licensure more dangerous to public health and safety.

 

Furthermore, in my practice I have served as the defense attorney for hundreds of other licensed health care professionals before the Texas Medical Board, the Texas Board of Dental Examiners, and the State Board of Veterinary Examiners. These agencies are all notable because they all regulate licensees who hold prescriptive authority. None of these agencies have a similar provision in their administrative Rules. It is unclear why these Texas Boards feel that the public health and safety is safeguarded by permitting their licensees, who are also on felony deferred adjudication, to continue to practice under probated suspensions or subject to a reprimand whereas the Pharmacy Board demands outright revocation as a matter of law. Likely they realize that revocation as a matter of law is unreasonable, overly draconian, and likely beyond the bounds of their administrative authority. Even a Texas criminal court has greater discretion in fitting an appropriate punishment to each case.

 

It remains to be seen whether or not Rule 281.64 can actually withstand legal scrutiny in a full contested case or declaratory judgment action. I feel confident that it cannot, however, even challenging this Rule places the pharmacist in a position where they have spend extensive legal fees, not to mention time and frustration, to circumvent Rule 281.64.

 

The lesson any pharmacist or pharmacist tech should take away is that if you are on deferred adjudication for a drug-related offense you should seek the advice of an attorney immediately. This attorney should also be someone who is familiar with the Texas State Board of Pharmacy, the Pharmacy Act, and the applicable administrative rules. Early intervention can mean the difference between continuing as a pharmacist and losing your license and source of income.