Texas State Board of Pharmacy v. Gibson's Discount Center, Inc.
| Decision Date | 29 September 1976 |
| Docket Number | No. 12330,12330 |
| Citation | 541 S.W.2d 884 |
| Parties | TEXAS STATE BOARD OF PHARMACY et al., Appellants, v. GIBSON'S DISCOUNT CENTER, INC., et al., Appellees. |
| Court | Texas Court of Appeals |
John L. Hill, Atty. Gen. of Texas, John C . Madison, III, Asst. Atty. Gen., Austin, for appellants.
Bardwell D. Odum, Dallas, for Gibson.
Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for Sage International.
By direction of the Supreme Court we review the merits of this appeal. The previous opinions of this Court and that of the Supreme Court appear at 530 S.W.2d 332 (1975), and 539 S.W.2d 141 (1976).
This appeal stems from a permanent injunction entered by the district court of Travis County enjoining Texas State Board of Pharmacy and others, from enforcing Tex.Rev.Civ.Stat.Ann. art. 4542a, § 20A, subdivisions II(a) and II(d) (1973). Appellees are H. R. Gibson, Sr., Gibson's Discount Center, Inc., and other corporations.
Appellees filed a declaratory judgment action seeking a declaration that art. 4542a, § 20A, subdivisions II(a) and II(d) is in violation of Tex.Const. art. I, § 19. After trial before the court, judgment was entered declaring, among other things, that the statute's prohibitions and restrictions concerning the advertising of prescription drugs deprived appellees of property 'without due course of the law of the land' in violation of Tex.Const. art. I, § 19. We will affirm that judgment.
Upon request, the court filed findings of fact and conclusions of law which appellants did not challenge. As a result, appellants are bound by those findings of fact. Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App.1970, no writ); Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App.1967, no writ).
Appellants' most significant contention is that the district court erred in holding that § 20A, subdivisions II(a) and II(d) was in violation of Tex.Const. art. I, § 19.
Section 19 provides that 'no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.'
Texas Rev.Civ.Stat.Ann. art. 4542a, § 20A, subdivisions II(a), II(b), and II(d) (1973) provide as follows:
'(b) A licensed pharmacy shall have available to the public at the prescription department or other dispensing area in complete public view, in a standard format authorized by rule or regulation of the Texas State Board of Pharmacy, a poster containing the one hundred (100) most prescribed drugs in Texas and the maximum charges to the public for prescription drugs, including charges for professional services and nonprofessional convenience services specified by rule or regulation of the Texas State Board of Pharmacy which the pharmacy includes and does not include within the posted maximum charge.
'(d) No notice or advertising to the general public shall contain promotional claims or statements comparing, either directly or indirectly, the charges either listed or otherwise charged for specific prescription drugs or prescription drugs generally, with the charges either listed or otherwise charged for specific prescription drugs generally by any other pharmacist or pharmacy; and provided, further, that no such notice shall contain any claims or statements comparing, either directly or indirectly, the professional services or nonprofessional convenience services provided the public by any other pharmacist or pharmacy; nor shall any pharmacy publish or display or cause or permit to be published or displayed in any newspaper or by radio, television, window display, poster, sign, billboard or any other means or media any statement or advertising concerning prescription medication which is fraudulent, deceitful or misleading, including statements or advertisements of bait, discounts, premiums, price, gifts or any statement or advertisements of a similar nature, import or meaning, or any statement or advertisement of or reference to the price of prescription medication except in compliance with this Act.'
Appellants argue that the above provisions are not in violation of § 19, but instead, are a reasonable exercise of the State's police power. In that respect we recognize that the police power is broad and comprehensive, and is grounded upon public necessity which alone can justify its exercise. Such exercise hinges upon the public need for safety, health, security, and protection of the general welfare of the community. City of Coleman v. Rhone, 222 S.W.2d 646 (Tex.Civ .App.1949, writ ref'd). If, however, a statute purporting to have been enacted to protect the public morals or safety, bears no substantial relation to those objects, the statute must, of necessity, yield to the Constitution.
For the following reasons we are of the opinion that § 20A, subdivisions II(a) and II(d), bears no reasonable relation to the safety, health, security, and protection of the general welfare of the citizens of this State.
Subdivision II(a) enumerates several salutary purposes said to be served by subdivisions II(b) and II(d). In their presentation to this Court appellants did not choose to urge those purposes in defense of the statute; nevertheless, the proper resolution of the appeal necessitates their consideration. First, the statute claims to promote the availability of factual information regarding charges for prescription drugs. Such a result is supposed to be achieved by subdivision II(b). That subdivision requires posting in each pharmacy a list of the prices of...
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