Physicians Challenge Licensing Boards’ Limitations on Dispensing

Pharmacy TimesDecember 2023
Volume 89
Issue 12

Unsuccessful arguments at trial court level are upheld on appeal


After legislators in Texas prohibited physicians from dispensing noncontrolled medications and those laws were enforced by licensing boards, physicians challenged the decision.

Focus on hammer, group of files on judge table covered with dust - concept of pending old cases or work at judicial court - Image credit: WESTOCK |

Image credit: WESTOCK |


Under Texas state law, only pharmacists licensed by the state may dispense noncontrolled prescription medication. The prohibition extends to physicians with 2 notable exceptions: first, where the patient has an “immediate need,” although this carve-out specifies that it does not permit a physician to operate a pharmacy in the sense of a traditional retail community pharmacy; and second, if the physician’s practice is located in certain rural portions of the state. This broad, overarching prohibition is referred to as the dispensing ban.

The case was brought to court by 2 physicians who do not have their practices within the qualifying rural areas. They filed the lawsuit against 2 administrative agencies serving the citizens of the state by enforcing this legislative enactment: the Texas State Board of Pharmacy and Texas Medical Board. In addition to filing the matter against the administrative agencies, the plaintiffs added the individual members of the respective licensing boards as well as each board’s executive director as defendants.

There were 2 legal arguments made by the plaintiff physicians, both rooted in the provisions of the state’s constitution:

  1. The ban violates their right to pursue the profession they have chosen, with that right arising from the state constitutional provision known as due course of law.
  2. The ban violates the right to equal protection of the law established by the state constitution, with that allegation arising from the fact that those in urban locations are being treated differently from those in rural locations.

The attorneys representing the state agencies made a motion with the state trial court judge that the agencies and others be granted summary judgment. Summary judgment would conclude the proceedings without a trial. For a judge to grant such a motion, they must conclude that there are no material legal issues in the case to be presented to a jury.

The judge at the trial court level granted that motion, and the attorneys representing the physician plaintiffs took the matter to a state court of appeals, arguing that the trial court judge had made an error in dismissing the case without it going to trial.


The panel of judges on the appellate court agreed with the trial court judge that summary judgment was appropriate in this case.


When pursuing the appeal, the attorneys for the plaintiff physicians argued that the 3 underpinning bases for these rules asserted by the state do not further the particular basic governmental interest in protecting the health of its citizens. In response, the arguments of the state to support the law were promoting safety in medication use by requiring pharmacist’s review prior to dispensing, preventing the potential for conflicts of interest when the physician is also the dispenser, and serving to limit the number of state-licensed dispensing locations to enhance effective regulation of activities there.

The appellate court agreed with state’s position requiring that an independent pharmacist review the request for dispensing medication before it is provided to the patient. They concluded that the requirement is rationally related to a legitimate governmental interest, thereby rejecting the arguments advanced by the physicians. Reviewing the legislature’s creation of a “system which necessarily requires most prescribed medications to be double-checked before dispensing,” the court interpreted the requirement as being rationally related to the interest and responsibility of the state to ensure safe dispensing of such medications.

Another argument advanced by the attorneys for the physicians was that the dispensing ban created a barrier to entry of their profession, thereby depriving the practitioners of their freedom to pursue an occupation. The court of appeals concluded that the plaintiffs had not sufficiently established that the rule deprived them of their occupational freedom.

Finally, the court turned to the plaintiffs’ argument that the different treatment of urban practitioners vs those in rural practice sites was unlawful. The court of appeals judges concluded that the legislature had a legitimate interest in differential treatment of physicians in portions of the state where there was a shortage of pharmacies. Thus, the judges turned down the plaintiffs’ arguments rooted in an equal protection argument.

Having rejected the various arguments advanced by the plaintiffs, the appellate court judges agreed with the trial court judge that summary judgment was the appropriate outcome for this matter.

About the Author

Joseph L. Fink III, JD, DSC (HON), BSPHARM, FAPHA, is an emeritus professor of pharmacy law and policy and former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.


  1. Berlin J. Dispensing with reason? overturning state ban on providing drugs from physician offices. Texas Medical Association. July 2, 2021. Accessed October 30, 2023.
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