The appellant's principal contention is that, because he was a licensed physician who was registered with the Attorney General of the United States, he could not be convicted of unauthorized delivery under Section 4.03 of the Texas Controlled Substances Act. He relies heavily on Haney v. State, 544 S.W.2d 384 (Tex.Cr.App. 1976), and especially on the footnote in that case, but his reliance is misplaced. The court held in Haney v. State that a physician, whose actions in dispensing a Schedule II drug by giving a written prescription without a medical examination were "not in the course of medical practice," did not commit an offense.

As such, he was not liable to prosecution for "delivery" of a controlled substance under § 4.03(a), supra, and could have been convicted for only unauthorized "dispensing" of a controlled substance in violation of § 3.08, supra, as proscribed by § 4.08(a)(1), supra. See Haney v. State, 544 S.W.2d 384 (Tex.Cr.App. 1976). The evidence is sufficient to sustain a conviction for unauthorized dispensing of a controlled substance under s 4.08(a)(1) and § 3.08(a), supra.

However, we have already pointed out that there are significant differences between the Michigan Controlled Substances Act and the Federal Controlled Substances Act, which was interpreted in Moore. In addition, we are also aware that at least three other jurisdictions have declined to follow Moore and have found that physicians and other registrants are not subject for violations similar to those presented in the instant case. Of particular relevance is the poignant statement of the Texas Court of Criminal Appeals in Haney v State, 544 S.W.2d 384 (Tex Crim App, 1976): See State v Best, 292 N.C. 294; 233 S.E.2d 544 (1977); Haney v State, 544 S.W.2d 384 (Tex Crim App, 1976); McLean v State, 527 S.W.2d 76 (Tenn, 1975).

See Ex parte Evers, 434 So.2d 813, 816 (Ala. 1983); Hales v. State, 299 Ark. 93, 94-96, 771 S.W.2d 285, 285-87 (1989) (4-3 opinion); People v. Lipton, 54 N.Y.2d 340, 346-48, 429 N.E.2d 1059, 1061-63, 445 N.Y.S.2d 430, 432-34 (1981); State v. Best, 292 N.C. 294, 302-10, 233 S.E.2d 544, 549-54 (1977); McLean v. State, 527 S.W.2d 76, 79-81 (Tenn. 1975) (pharmacist); Santoscoy v. State, 596 S.W.2d 896, 902 (Tex.Crim.App. 1980); Haney v. State, 544 S.W.2d 384 (Tex.Crim.App. 1976) (3-2 opinion). These opinions are not persuasive. The Alabama and New York cases involved general statutes proscribing "selling" or "furnishing" controlled substances, and those terms, unlike the term "deliver" in W. Va. Code, 60A-4-401(a) [1983], did not expressly include constructive deliveries.

He was reimbursed by the police department. See and cf. Haney v. State, (Tex.Cr.App., #51,733, delivered July 14, 1976). Lillian Duke, registered nurse at the Harris County Jail, called by the appellant, testified that the appellant came into her custody at 2:30 p.m. on September 25, 1973, after being booked into jail at 1:45 p.m. and having taken two capsules of sodium amytal at 2:15 p.m.

Appellant then concludes his argument by urging that the indictment in this case does not charge him with an offense under the law as it existed before H.B. 730 was enacted. He cites, as his authority therefor, Haney v. State, 544 S.W.2d 384 (Tex.Crim.App. 1976). Acts 1981, 67th Leg., Ch. 268, pg. 696-708, eff. Sept. 1, 1981.

The other system, found in §§ 30-31-12 through 30-31-19 and § 30-31-24, regulates those permitted by law to conduct transactions in controlled substances. While some states have found that their statutory schemes embrace two parallel systems of drug enforcement, depending on whether or not the violator is registered to conduct transactions in controlled substances, State v. Best, 292 N.C. 294, 233 S.E.2d 544 (1977); McLean v. State, 527 S.W.2d 76 (Tenn. 1975); see generally Haney v. State, 544 S.W.2d 384 (Tex.Crim.App. 1976), other states have found a physician is subject to the same criminal penalties as any drug pusher if he delivers drugs by means of a prescription not written in the course of his professional practice. People v. Alford, 73 Mich. App. 604, 251 N.W.2d 314 (1977), aff'd, 405 Mich. 570, 275 N.W.2d 484 (1979); State v. Vaccaro, 142 N.J. Super. 167, 361 A.2d 47, cert. denied, 71 N.J. 518, 366 A.2d 674 (1976); see State v. Vinson, 298 So.2d 505 (Fla.Ct.App. 1974), aff'd 320 So.2d 50 (1975).