Texas Professional License Defense Lawyer Blog

The Open Meetings Act represents an attempt by the Texas Legislature to increase transparency in government by requiring state and local governmental bodies to both open their meetings to the public and also keep records of those meetings, which become public record. The general rule, laid out in Section 551.002 of the Texas Government Code, provides that "Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." Tex. Gov. Code, § 551.002. Furthermore, Section 551.021 provides that "A governmental body shall prepare and keep minutes or make a tape recording of each open meeting of the body." Tex. Gov. Code, § 551.021. Specifically, Section 551.021 requires that the minutes kept by a governmental body must state the subject of each deliberation and provide a record of each vote, order, decision, or action taken. Tex. Gov. Code, § 551.021. In addition to the minutes that the governmental body itself is required to keep, the Act allows a person in attendance at such a meeting to keep their own record of the meeting with a video or audio recording device. Tex. Gov. Code, § 551.023.

The Act is not all-inclusive - it carves out several exceptions in which a closed meeting may be held. For instance, closed meetings are permitted to ponder the purchase, lease, exchange, or value of real property if holding an open meeting on such deliberations would adversely effect the position of the governmental body in negotiations. Tex. Gov. Code, § 551.072. Closed meetings are also permitted, under certain circumstances, by the commissioners' courts of counties with populations of 400,000 or more, provided that the meetings are to "deliberate business and financial issues relating to a contract being negotiated." Tex. Gov. Code, § 551.0725.

The Open Meetings Act has great impact on administrative law, because most if not all administrative agencies are governmental bodies subject to the Act's provisions. This means, for instance, that if the Nursing Board or the Board of Pharmacy meets to deliberate changes to the regulations governing the licensing of nurses or pharmacists, they are required to open those meetings to the public, and provide records of how the various members of the board in question voted on the proposed changes. This makes it easier for administrative lawyers to ascertain the legislative history behind such changes, which in turn simplifies the job of making their arguments to judges. It provides lawyers with knowledge of how board members voted, giving valuable insight should such lawyers wish to undertake lobbying efforts for further changes. It provides medical practitioners with greater access to and notice of the substance of changes and proposed changes to the Texas Administrative Code that might affect their practice. In short, it simplifies the work of both medical practitioners and attorneys. Furthermore, when a Board meets to impose discipline on a licensee, the meeting must comply with the Open Meetings Act. Otherwise, any discipline imposed on the licensee is voidable, pursuant to Section 551.141 of the Act. Tex. Gov. Code, § 551.141.

Texas physicians and pharmacists should be aware of a set of new laws passed by the 81st session of the Texas Legislature which allows a doctor to delegate drug therapy decisions to pharmacists in certain limited situations. Senate Bill No. 381 adds new sections to both the Medical Practice Act and Pharmacy Act implementing this new option for physicians and pharmacists. How the Texas Medical Board and the Texas State Board of Pharmacy will regulate / police this area remains to be seen.

The key features of the new law are as follows:

• It is limited to dangerous drugs only, not scheduled medications;
• The delegating physician is required to have previously made an initial diagnosis and patient assessment and also formulated a medication plan;
• The pharmacist must practice in a hospital, hospital-based clinic, or an academic health care institution;
• The pharmacist's place of employment must have both bylaws and a medical staff policy that permits a physician to delegate to a pharmacist the management of a patient's drug therapy;
• The pharmacist must provide both the delegating physician's and the pharmacist's contact information on each prescription signed by the pharmacist; and
• The pharmacist must provide a copy of the delegation protocol to the Texas State Board of Pharmacy for their approval.

The Pharmacy Board will also maintain a publically available list of pharmacists authorized to sign a prescription drug order pursuant to the new law.

By the start of next year, the Texas State Board of Pharmacy (TSBP) is also required to adopt appropriate administrative rules establishing more definite criteria and procedures to govern when a pharmacist operating under this new law is permitted to implement or modify a drug therapy plan initiated by the delegating physician.

While this is a welcome addition to medical staff's toolkit, physicians and pharmacists should pay careful attention to ensuring their compliance with the statute and its corresponding rules or else they could face a costly and potentially damaging investigation and disciplinary action by the Texas Medical Board and the Texas State Board of Pharmacy.

The Texas Pharmacy Board is enabled by the Texas Pharmacy Act. Tex. Occupations Code 551.001 et seq. The board is to regulate the practice of pharmacy and to license pharmacies. It does this through licensing pharmacists and pharmacies, determining and issuing standards for pharmacy education and training, and enforcing the provisions of the Texas Pharmacy Act.

It consists of nine members. Six are pharmacists and the other three are to represent the public. Each serves for six years; the terms are staggered. The Governor appoints the president of the Board from among its members. The president serves at the governor's pleasure. The board shall employ an executive officer, who must be a pharmacist.

Board Action is through the majority of a quorum.

The Board employs a staff that consists of departments including investigations, enforcement and the legal division or General Counsel's office. The legal division employs four attorneys who are responsible for the enforcement of agency action including the discipline of registered pharmacists (R.Ph.) licenses / registrations. The Texas Pharmacy Board attorneys also prosecute pharmacy violations if probable cause exists to believe a violation of the Texas Pharmacy Act has been committed.