Untitled Texas Attorney General Opinion ( 1948 )

ATTORNEX GENERAL
Q,F TEXAS
AunTIN 11. Trexae
PRICE DANIEL
ATTORNEYGENERAL
December 15, 1948
Hon. Bernice R. Johnson, Secretary
Board of Nurse Examiners
Austin, Texas Opinion No. V-736
Re: The authority of the
Board of Nurse Examin-
ers to adopt and pre-
scribe examination
questions prepared by
another agency.
Dear Miss Johnson:
Reference is made to your recent request, which
reads, in part, as follows:
*We appreciate very much your letter of
October 22 replying to ours request of Ooto-
ber 12, and wish to clarify and re-frame
the questions as suggested by you.
“Please understand that this Board recog-
nizes the correctness of your Opinion V-
265 and is in complete accord with the
principle therein announced that it may
not re-delegate official duties to another
Agency. This Board has for its purpose
the retention of all power and discretion
in the prescribing of examination ques-
tions for applicants, the grades to be as-
signea upon all examinations, and, the ae-
termination of the fitness to practice
professional nursing in Texas.
“In order to accomplish this end efficient-
ly, and upon the basis of the highest known
professional standards, we desire to make
available to the Board of Nurse Examiners
and to the examinees all facilities which
the Board may eonsider as beneficial to
the nursing profession and for the im-
provement of professional standards.
“The Board, of Nurse Examiners conducts
examinations in the months of March and
September of each year. It has sought to
Hon. Bernice R. Johnson, page 2 (V-736)
incorporate scientific advancements in the
field of nursing into the examination ques-
tions. One of the most widely acclaimed
and recognized sources of information on
the subject of nurse examination is the
National League of Nursing Education. This
organization collects, edits, and makes
available to such State Boards of Nurse
Examiners as desire to make use of it, mat-
ters and information generally suitable for
the examination of graduate nurses. The
use of the services of this National Lea-
gue of Nursing Education is being urged
upon this Board by the schools of nursing
within the State of Texas. The Board has
decided that it would request a copy of
examination questions from the National
League of Nursing Education and examine
them to determine their fitness in whole
or in part for use in Texas for the ex-
amination which will be given in March,
1949.
“Question:
Way the Board of Nurse Examiners after
study and examination of questions pre-
pared by the National League of Nursing
Education adopt one or more of said ques-
tions and prescribe them for the examina-
tion to be given in Maroh, 1949?
*The Board of Nurse Examiners is inform-
ed that the National League of Nursing
Education will submit questions to this
Board upon answer sheets or cards whloh
may be scored mechanically through a
machine. This scoring service may be
made available to the Board, which the
Board may or may not use for purposes
of convenience in grading the examina-
tion paper of the applicant.
“Question:
Way the Board of Nurse Examiners, for
the examination to be given in March,
1949, use the mechanical scoring ser-
vice of an examination by the National
League of Nursing Education, as a con-
venience in grading, if the Board, in
fact, grades the examination papers,
Hon. Bernice R. Johnson, page 3 (V-736)
prescribes the grades given each lndi-
visual appliaant to practice profession-
al nursing, and determines whether or
not the result of the examination Is
satisfactory to the Board of Nurse Ex-
amine rs?
The factual questlolls presented here are dif-
ferent from those presented In Opinion No. V-265.
In Vol. I, page 268 of Sutherland Statutory
Construction, it is provided that:
WAdmlnistrative agencies are pure-
ly creatures of legislation without ln-
herent or common-law powers. The gea-
era1 rule applled to statutes granting
powers to admlnlatrative boards, agen-
cies or tribunals Is that only those
powers are granted which are expressly
or by necessary implication conferred.”
Therefore, we must look to those statutes which deal with
the powers of the State Board of Nurse Examiners to see if
there is any authority for such Board to do those things
referred to in your request.
Articles 4514, 4518a and 4519, V. C. S. provide
in part, as follows :
Art, 4514: *. . . The board may
make such, by-laws and rules as may be
necessary to govern its proceedings and
to oarry into effect the purpose of this
law. . .”
Art. 4518a. v. . . And such gradu-
ate upon presenting suah aertlffcate to
the State Board of Nurse Examiners shall,
upon the payment of required fees be
entitled to take the examinations pre-
scribed by the State Board; and upon
making the passing grades prescribed by
the Board, shall be entitled to receive
from said Board a certificate certify-
ing that such person is a graduate nurse
and entitled to practice as a reglster-
ed nurse In the State of Texas.”
Art. 4519. n . . . A grade of not
less than seventy on any one subject shall
be required to pass the examination. The
Hon. Bernlce R. Johnson, page 4 (V-736)
examination shall be of such character
as to determine the fitness of the appli-
cant to practice professional nursing.
If the result of the examination be sat-
isfactory to the board, a certificate
shall be issued to the applicant, sign-
ed by the president and secretary and at-
tested by the seal of said board, which
certificate shall qualify the person re-
ceiving the same to practice professional
nursing in this State.”
Art. 4527, V. C. S., provides, in part, as fol-
lows :
” All money so received and
placed’in said fund may be used by said
board in defraying Its expenses in carry-
ing out the provisions of this law. No
expenses incurred by said board shall
be paid by the State.”
It Is stated in Attorney General’s Opinion No+
V-265 that:
“Although Article 4514, Vernon’s Civ-
il Statutes provides that ‘the board may
make such by-laws and rules as may be nec-
essary to govern its prooeedings and to
carry into effect the purpose of this law’
it is apparent that the Legislature, in
designating the agency the ‘Board of Nurse
Examiners f , intended just what the name
implies; that Is, that the Board should
examine the applicants for registered
nurse licenses, prescribe the examinations,
determine that the examinations are of such
character as to ascertain the fitness of
the applicants to practice professional
nursing and to supervise generally the
nursing profession.
“The Legislature, in creating the
Board of Nurse Examiners, delegated to
such Board certain functions and in addi-
tion gave it the power to ‘make suoh by-
laws and rules as may be necessary to
govern its proceedings and to carry into
effect the purpose of this law. t Obvious -
ly, the law was enacted to regulate the
profession of nursing, and It was lntend-
ed that the Board should be the agency to
carry out the administration of such law.”
Hon. Bernlce R. Johnson, page 5 (V-736)
Not only do the above quoted statutes impose a
duty upon the Board to prescribe the type of examinations
as it may deem best in order to determine the fitness of
the applicants to practice professional nursing, but it
leaves it within the sound discretion and judgment of the
Board as to the method of prescribing such examinations as
well as grading the examination papers of the applicants.
True, the Board is not authorized to delegate
the power of giving such examinations to anyone else. How-
ever, we do not believe that the mere fact that the Board
adopts questions prepared by the National League of Nurs-
ing Education amounts to a d,elegatlon of power. On the
contrary, if the Board thinks that the purpose of the law
would be more effectively carried out by conducting such
examinations through the method referred to in your re-
quest, we believe that it has such power. Therefore, it
is our opinion that both of your questions should be an-
swered in the affirmative.
SUMMARY
The State Board of Nurse Examiners may
use questions prepared by the National League
of Nursing Education for the examination of
applicants to practice professional nursing.
It may also use the mechanical scoring service
available in an examination by the National
League of Nursing Education as a convenience
In grading, if In fact the Board actually pre-
scribes the grades given such applicant to
practice professional nursing. Arts. 4514,
4518a, 4519 and 4527, V. C. 8.
Yours very truly,
ATTOREEYGENERALOF TEXAS
BY
BA:mw: jrb
Assistant
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