Untitled Texas Attorney General Opinion ( 1986 )

Honorable Erwin Barton Opinion No. .JM-607
Chairman
Human Services Committee Re: Whether certain appointees
Texas House of Representatives are eligible to serve on the
P. 0. Box 2910 Board of Licensure for Nursing
Austin, Texas 78769 Home Administrators
Mr. Karl E. Bishop, Ph.D.
Executive Director
Texas Board of Licensure For
Nursing Home Administrators
3407 I-35 North
Austin. Texas 78722 *
Gentlemen:
Mr. Bishop asks three questions about the qualifications of
persons appointed to the Texas Board of Licensure for Nursing gome
Administrators. Representative Barton asks one question which deals
with the same subject matter as Mr. Bishop's third question.
Section 3 of article 4442d. V.T.C.S., determines the composition
of the board. It provides in part:
Sec. 3. (1) There is hereby created the Texas
Board of Licensure for Nursing Home Administrators
which shall consist of nine (9) members. The
Commissioner of Human Resources for the State of
Texas, or his designee, and the Commissioner of
Health of the Texas Department of Realth, or his
designee, shall be ex officio nonvoting members of
the board. Such designees shall be chosen from
those representatives of the respective depart-
ments who are actively assigned to and are engaged
in work in the nursing home field. One member
shall be a physician duly licensed by the State of
Texas; one member shall be an educator connected
with a university program in public health or
medical or nursing home care administration within
the State of Texas or a psychiatrist whose field
includes geriatric or institutional psychiatry, or
a psychologist whose field includes clinical
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Honorable Erwin Barton
Mr. Earl E. Bishop
Page 2 (JM-607)
psychology or educational psychology. Four (4)
members shall be duly licensed nursing home
administrators of the State of Texas; however, at
least one of these four shall represent a non-
proprietary nursing home. Three (3) members must
be representatives of the general public who are
not licensed under this Act. (Emphasis added).
V.T.C.S. art. 4442d. $3(l).
Your first question pertains to the appointment of an educator.
You state that he is not a psychiatrist or a licensed psychologist.
Thus, to qualify for the position described in the underlined language
of section 3(l), article 4442d. V.T.C.S., he would have to be "an
educator connected with a university program in public health or
medical -or nursing home care administration within the state of
Texas. . . .'I The individual appointed to the educator's position is
a Professor of Management at the University of Texas at Austin.
You state that the University of Texas at Austin does not have a
program in long term health care administration. If the appointee is
actually not "Connected with a university program in public'health or
xedical or nursing home care administration," then he does not qualify
for the educator's position on the board and may not serve. Whether a
particular educator is connected with such a program involves the
investigation or resolution of fact questions, which cannot be done in
the opinion process. We can, however, define the tee "university
program" as it appears in section 3(l) of article 4442d. V.T.C.S.
You do not offer a definition of "university program" as it
appears in the statute. We do not believe that "university program"
within the statute requires that the program lead to a university
degree in one of the stated subjects. In other statutes, the
legislature has used the specific term "degree program" to signify a
course of study leading to an academic degree. See Educ. Code
§§61.003(11); 61.302(l), (7). A court of another stateas described
an "educational program" as
a series of courses related to the occupation or
field for which the student has enrolled and which
is sufficiently extensive and intensive within
scheduled units of time extending over a period of
one or more school semesters to enable the student
to develop competencies for advancing or con-
tinuing in that field.
Angello v. Dusinberre, 363 N.Y.S.2d 520 (Sup. Ct. 1975), aff'd., 390
N.Y.S.2d 607 (App. Div. 1976). We believe "university program in
public health or medical or nursing home care administration" means
something less formal than a university degree program. It my merely
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Eonorable Erwin Barton
Mr. Karl E. Bishop
Page 3 (JM-607)
mean courses which a student may take to develop some knowledge and
skill in public health or medical or nursing home administration.
The Board of Licensure for Nursing Home Administrators has issued
regulations outlining the content of programs of study designed to
train and qualify individuals for licensure as nursing home adminis-
trators. 22 T.A.C. 5247.3; see V.T.C.S. art. 4442d, 5§6(1). (7); 0.
These regulations do not dictate the kind of "university program" with
which the educator-board member must be connected, since the legis-
lature established the educator's qualifications at the initial
enactment of article 4442d, V.T.C.S., while the board subsequently
developed educational requirements for licensure. Acts 1969, 61st
Leg., ch. 411, at 1356; "The Board of Licensure for Nursing Home
Administrators: Staff Report to the Sunset Advisory Committee" at.6-8
in II Sunset Advisory Commission, Staff Reports (1978). Nonetheless,
the educational requirements for licensing indicate the subjects which
are relevant to "nursing home care administration." V.T.C.S. art.
4442d. 53(l). The course of study described by the regulations
includes management, accounting, business and personnel practices, as
well as various topics in patient care. 22 T.A.C. 5247.3. The
continuing education requirement may be satisfied by instruction in
subject areas outlined in this regulation. 22 T.A.C. %247.4. We
cannot determine whether the educator-appointee is qualified to serve
on the board, but we can point out that the board's regulations
establish management as a field relevant to licensing as a nursing
home administrator.
Your next question concerns the qualifications of three board
members appointed to seme as licensed nursing home administrators.
Article 4442d. V.T.C.S., provides in section 3(l) that four members of
the board shall be duly licensed nursing home administrators. Section
3 of article 4442d. V.T.C.S.. also provides as follows:
(8) No person shall be eligible for service on
this board as a nursing home administrator repre-
sentative unless he is the holder of a nursing
home administrator's license under the provisions
of this Act and is currently serving as a nursing
home administrator. (Emphasis added).
V.T.C.S. art. 4442d. §3(8). You state that three persons appointed to
positions for nursing home administrators are not serving as nursing
home administrators.
The statute defines "nursing home administrator" as
the person who administers, manages, supervises,
or is in general administrative charge of a
nursing home, irrespective of whether or not such
individual has an ownership interest in such home,
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Honorable Erwin Barton
Mr. Karl E. Bishop
Page 4 (JM-607)
and whether or not his functions and duties are
shared with one or more other persons. . . .
V.T.C.S. art. 4442d, §2(2). A person appointed to a board position
allocated to a nursing home administrator must be serving in that
capacity. If he is not serving as a nursing home administrator as
that term is defined by statute, he is ineligible for service on the
board.
You finally inquire about the status of a board member whose
husband was elected to the Board of Directors of the Texas Health Care
Association, a trade association in the nursing home industry.
Representative Barton also inquires about this appointee..
Section 3A of article 4442d. V.T.C.S., states the following
restrictions on board members:
(1) A member of the board or an employee of the
board or of the Texas Board of Eealth who carries
out the functions of the board may not:
(a) be an officer, employee, or paid consultant
of a trade association in the nursing home
industry;
(b) be related within the second degree by
affinity or within the third degree by consan-
guinity to a person who is an officer, employee,
or paid consultant of a trade association in the
nursing home industry; or
(c) communicate directly or indirectly with a
party or the party's representative to a pro-
ceeding pending before the board unless notice and
an opportunity to participate is given to all
parties to the proceeding, if the member or agent
is assigned to make a decision, a finding of fact,
or a conclusion of law in the proceeding.
(Emphasis added).
V.T.C.S. art. 4442d, %3A. Spouses are related by affinity within
the degree affected by section 3A(l)(h) of article 4442d. V.T.C.S.
Attorney General Opinion MW-286 (1980). The question arises whether a
director of a trade association in the nursing home industry is "an
officer" of that trade association. V.T.C.S. art. 4442d, §3A(l)(b).
At common law, an association is a body of persons acting
together without a charter, but using the methods and forms of
corporations to pursue some common enterprise. Penrod Drilling Co. v.
Johnson, 414 F.2d 1217, 1222 (5th Cir. 1969); Weaver v. First National
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EionorableErwin Barton
Mr. Karl E. Bishop
Page 5 (JM-607)
Bank of Memphis, 224 S.W.2d 813, 817 (Ark. 1949); Clark v. Grand Lodge
of Brotherhood of Railroad Trainmen, 43 S.W.2d 404, 408 (MO. 1931).
Although trade associations need not incorporate, they are
permitted to do so under the Texas Non-profit Corporation Act.
V.T.C.S. art. 1396, 92.01A. See People ex rel. Padula et al v.
Hughes, 16 N.E.2d 922, 924 (111. App. Ct. 1938). The legislature
could reasonably have adopted section 3A(l)(h) having in mind the
nonprofit corporation act and the structure of unincorporated associa-
tions which informally operate like nonprofit corporations. We will
therefore examine the provisions of article 1396 to determine whether
the legislature intended the term "officer" in section 3A(l)(h) of
article 4442d, V.T.C.S., to include "director."
Article 1396, V.T.C.S., includes the following definitions:
(7) 'Board of Directors' means the group of
persons vested with the management of the affairs
of the corporation, irrespective of the name by
which such group is designated.
(8) 'President' means that officer designated
as 'president' in the articles of incorporation
or by-laws of a corporation, or that officer
authorized, in the articles of incorporation, the
by-laws, or otherwise, to perform the functions
of the principal executive officer, irrespective
of the name by which he may be designated. . . . .
(Emphasis added).
V.T.C.S. art. 1396, 51.02A. "Vice-president," "secretary," and
"treasury" are also identified as officers, in definitions that track
the definition of "president."
Although the definitions distinguish between directors and
officers, other provisions state that a director occupies an office.
For example, article 1396, V.T.C.S., provides that
[t]he directors constituting the first board of
directors . . . shall hold office until the first
annual election of directors. . . . (Emphasis
added).
Sec. 2.15B. Thus, a director, while not an executive officer of a
nonprofit corporation, does hold an office.
If the corporation is a church, the board of directors may carry
out the duties of officers:
D. In the case of a corporation which is a
church, it shall not be necessary that there be
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Mr. Karl E. Bisho
Page 6 (JM-607P
officers as provided herein, but such duties and
responsibilities may be vested in the board of
trustees or other designated body in any manner
provided for in the articles of incorporation or
the by-laws.
V.T.C.S. art. 1396, 52.20D. Moreover, the term "official capacity"
means,
when used with respedt to a director, the office
of director in the corporation. . . . (Emphasis
added).
V.T.C.S. art. 1396, §2.22A.A(4)(a) (defined for purposes of indemnity
provision).
Finally, in discussing a provision similar to the one under
consideration here, a prior opinion of this office assumed that
"directors" of a trade association were officers of that entity.
Attorney General Opinion MW-173 (1980) construed the fol'lowing
provision of article 4442d, V.T.C.S.:
Sec. 3A(l) A member of the board [of Licensure
for Nursing Home Administrators] or an employee of
the board or of the Texas Board of Health who
carries out the functions of the board may not:
(a) be an officer, employee, *or paid
consultant of a trade asso.ciationin the nurs-
ing home industry. . . . (Emphasis added).
V.T.C.S. art. 4442d, §3A(l)(a). The opinion stated in dicta:
We believe section 3A(l) of article 4442d,
V.T.C.S., prohibits a board member from serving as
a director of a trade association in the nursing
home industry. . . . (Emphasis added).
Attorney General Opinion MW-173 at 2. The opinion stated in the
summary:
Board members may not serve as a director or other
officer of these associations. . . . (Emphasis
added).
Id.
-
The provisions of the Texas Non-profit Corporation Act and the
language of Attorney General Opinion m-173 indicate that the
legislature reasonably could have intended the term "officer" in
section 3A(l)(h) of article 4442d, V.T.C.S., to include a director of
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Eonorable Erwin Barton
Mr. Karl E. Bishop
Page 7 (JM-607)
a trade association in the nursing home industry. Section 3A(l)(h) of
article 4442d. V.T.C.S.. is a remedial statute in that it was designed
to prevent conflicts of interest that might arise from the close
relationship between the licensing board and the trade association.
See Sunset Advisory Commission, Final Report to the Governor of Texas
and Members of the Sixty-sixth Texas Legislature at 84, 87 (December
1978). The rule of liberal construction applies to remedial statutes.
Insurance. Comissioners v. Great Southern Life Insurance Co., 239
S.W.2d SO3 (Tex. 1951). See generally Gov't. Code 9312.006(a)
(revised statutes to be liberally construed to promote justice).
Applying the rule of liberal construction, section 3A(l)(h) of article
4442d. V.T.C.S., prohibits a board member from being related within
the second degree by affinity to a person who is a director of a trade
association in the nursing home industry. Accordingly, the individual
about whom you inquire may not serve on the board.
SUMMARY
The member of the Texas Board of Licensure for
Nursing Home Administrators who qualifies as an
"educator connected.with a university program in
public health or medical' or nursing home care
administration" need not be connected with a
program leading to a university degree. A board
member appointed to serve as a licensed nursing
home administrator is not eligible for service on
the board unless he is "currently serving as a
nursing home administrator." The term "officer"
of a trade association in the nursing home
industry in section 3A(l)(h) of article 4442d,
V.T.C.S., includes a director of such a trade
association.
J /lktti
Ve truly your
- &
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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