Untitled Texas Attorney General Opinion

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 APPROVED: ,