                             May 23, 1967


Mr. H. M. Cardwell, President                  Opinion No. M-78
Board of Vocational Nurse Examiners
1008 Sam Houston Building                      Re:     Whether Board of Voca-
Austin, Texas                                          tional Nurse Examiners
                                                       is authorized to sub-
                                                       scribe to the National
                                                       League for Nursing test
                                                       pool examination as the
Bear Mr. Cardwell:                                     Board's testing method.
           You have requested the opinion of this office   concerning
the question of whether the Board of Vocational   Nurse Examiners
may use the National League for Nursing test pool examination as
its llcensure   examination for those Individuals  seeking to obtain
a license as a Licensed Vocational   Nurse pursuant to the provisions
of Article   4528c, Vernon!s Civil Statutes.
             In connection    with the foregoing     question   you have stated
that:
              "It has been the practice  of the Board
        of Vocational  Nurse Examiners for the past four-
        teen years to construct  Its own licensure  ex-
        amination for graduates of the year's vocational
        nurse training program.   All of the states except
        Texas subscribe to the National League for Nursing
        test pool examination as their testing method,
        making It necessary for our LVN's seeking reciprocity
        In other states to write examination twice.
              ". . .

              "The Board does not examine the questions
        before the examination is given but does examine
        them at the time of the examination and sets the
        grades.   The contract with the National League for
        Nursing for use of the pool examination could be
        cancelled  at any time by our Board a;d we could go
        back to giving our own examinations.
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Mr. H. M. Cardwell,                page 2 (M-78)


                 Section         5 of Article    4528c, provides,   in part,           that:
           “(a)  Except as provided In Section 6 and
     Section 7 of this Act, every person desiring    to
     be licensed as a Licensed Vocational   Nurse or
     use the abbreviation  L. V. N. In the State of
     Texas, shall be required to pass the examination
     given by the Board of Vocational  Nurse Examiners.
     .   .   .

                 *
                     .   .   .

           “(cl    In conducting examinations and In
     accrediting?    chools of Vocational  Nurses and
     hospitals    as provided for In this Act, it shall
     be mandatory upon the Board to ascertain     that
     each Vocational    Nurse shall have been taught the
     ?undamentals of basic bedside nursing I th home
     and In the hospital.       . . .” (HmphasisnaddEd.)
            In Attorney General’s Opinion No. v-736 (1948), this
office   had before It a like question dealing with examinations
given by the State Board of Nurse Examiners.     In holding that the
State Board of Nurse Examlners could use questions prepared bythe
National League of Nursing Education for the examination of ap-
plicants   to practice  professional nursing, the opinion stated:
           “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 avnlicants
     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 dele-
     gate the power of giving such examinations to
     anyone else.     However,’ we do not believe that the
     mere fact that the Board adopts questions prepared
     by the National League of Nursing Education amounts
     to a delegation    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 l;;equest, we believe   that it has such power.
      . . .    (Bnphasls added. )
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    Mr. H. M. Cardwell,    page 3 (M-78)


                 In Attorney General's Opinion No. ~-2831 (1952), this
    office  had before it the question of whether the Board of Voca-
    tional  Nurse Examiners could prescribe    examinations formulated
    by the  National League of Nursing Education, and in such opinion
    it was   stated:
                 II
                      .it Is apparent that a distinction
         must be drawn between any delegation      of the
         power to examine on the one hand and a simple
         choice to prescribe    that set of questions which
         the national group has drafted in each instance.
         The Board may not surrender its power to prescribe
         the questions for the examinations by a blanket
         order adopting In advance any and all questions
         drafted by the National League of Nursing Educa-
         tion, to the exclusion    of the Board's duty to
         pass on the adequacy and acceptability      of each
         set of questions and to formulate other questions
         if it finds that those prepared by the National
         League are not suitable.      However, as was held
         in Opinion v-736, the Board may adopt questions
           repared by the National League If upon scrutiny
           n each Instance It finds that the set of ques-
         tions furnished to it is satisfactory."        (Emphasis
         add e d . )
                 Attorney General's Opinion Nos. v-736 (1948) and ~-2831
    (1952) clearly     disclose   that the Board of Vocational     Nurse Examiners
    Is authorized to use the National League for Nursing test pool ex-
    smlnation as Its llcensure       examination for those Individuals       seeking
    to obtain 'a license as a Licensed Vocational         Nurse pursuant to the
    provisions     of Article   4528~. The mere fact that the members of the
    Board of Vocational       Nurse Examiners do not see the examination ques-
    tions until the time of the examination Is not in Itself           sufficient
    to reach a' conclusion      that there has been an Improper delegation        of
    the Board's authority to prescribe        the examination to be given ap-
    plicants    for llcensure.     The Board still   retains the right to study
    the examination questions provided by the National League for Nursing
    and reach a decision       as to whether the questions submitted are
    satisfactory     and will be used.    As the Board sets the grades In
    connection with the examination and can terminate use of the test
    pool examinations submitted by the National League for Nursing at
    any time, we are of the opinion that an arrangement such as proposed
    would be wlthin the authority and sound discretion           of the Board and
    would not constitute       an improper delegation    of their duties and au-
    thority    in connection with the examination of applicants        for llcen-
    sure.

                               - 354 -
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Mr. H. M. Cardwell,   page 4 (M-78)


           If the Board should determine that the test pool
examination is lnadequate'to  meet the requirements of Article,
4528c, then It will be the duty of the Board to give additional
examination questions in order that the examination will comply
with the mandatory requirements of said Article.

                       SUMMARY
            The Board of Vocational Nurse Examiners may
     use the National League for Nursing test pool
     examination as its licensure     examination for those
     individuals   seeking to obtain a license as a
     Licensed Vocational   Nurse pursuant to Article
     4528c, Vernon's Civil Statutes,      and under the
     proposed arrangement such action would not con-
     stitute   an improper delegation    of the Board's
     duties and authority   in connection with the
     examination of applicants     for licensure.
            If the Board should determine that the teat
     pool examination is inadequate to meet the re-
     quirements of Article   4528c, then it will be the
     duty of the Board to give additional   examination
     questions In ord,er that the examination will com-
     ply with the mandatory requirements of said
     Article.
                               Vm     truly     yours,


                                               g?z-
                                               . ‘MART N
                                              General of Texas
Prepared by Pat Bailey
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Hawthorne Phillips, Chairman .
W. V. Geppert, Co-Chairman
Lewis Berry
Ralph Rash
Jack Sparks
James McCoy
STAFF LEGALASSISTANT
A. J. Carubbl, Jr.
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