. .




                                                    The Attorne,y General of Texas
                                                                      Au~;u.st   23.   1985
  JIM MATTOX
  Attorney General



  Supreme      Court Building
                                              Ms.    Joyce   A.   Hammer                      Opinion No. ~~-344
  P. 0. Box 12546                             Executive Director
  Austin.    TX. 76711. 2546                  Board of Vocational Nurse                       Re: Meaning of Itapproved course
  5121475-2501                                   Examiners                                    of not less than 12 months" for
  Telex    9101674-1367
  Telecopier     512/475-0266
                                              1300 East Anderson Lane                         purposes of the Licensed Voca-
                                              Building C, Suite 285                           tional Nurse Act, article 4528~.
                                              Austin, Texas   18752                           V.T.C.S.
      714 Jackson,    Suite 700
      Dallas,   TX. 75202.4506
                                              Dear Ms. Hammer:
      214/742-6944

                                                   You have reqwsted our assistance to clarify rhe meaning of
  4624 Alberta           Ave., Suite    160   certain language in the Licensed Vocational Nurse Act, article 4528~.
  El Paso. TX.           799052793            V.T.C.S. Specifica3.3y,you ask whether subsection 6(a) of the act,
  9151533.3464
                                              providing that an applicant for the licensing examinarion administered
                                              by the Board of Vocational Nurse Examiners submit proof that the
      1001 Texas,    Suite 700                applicant "has compteted an approved course of nor less than twelve
      Houston,    TX. 77002-3111              (12) months in an itpproved school for educating vocational nurses,"
      7131223.5686                            literally requires t:hat the course be of at least 12 months in
                                              duration.
      606 Broadway,        Suite 312
      Lubbock,     TX.    79401.3479                Your concerns t&out the 12-month minimum educational requirement
      6061747-5236                            of article 4528~ stem       from what you describe as the trend in most
                                              states (including Twas) to remove      vocational nurse training from the
                                              hospital setting to the academic setting. In light of this trend, you
      4309 N. Tenth.     Suite B
      McAllen,     TX. 78501-1685
                                              suggest that these programs     cannot be literally described as being 12
      512,662~4547                            months in duration.

                                                   The guiding ru.e of sratutory construcrion is to give effect to
      200 Main Plaza, Suite 400
                                              the intention of t&r legislature. City of Sherman v. Public Utilire
      San Antonio,  TX. 76205.2797
      51212254191
                                              Commission of Texas, 643 S.W.2d 681; 684 (Tex. 1983). In general,
                                              statutory time prov:isions are construed strictly, for the simple
                                              reason that such requirements are clear and unambiguous and therefore
      An Equal       Opportunity/             leave little doubt o:Ethe legislature's intent. See,    e.g., Attorney
      Affirmative      Action     EvploYe-    General Opinions .X4,-:!78
                                                                       (1984) (srawte requiring five years' active
                                              professional experience ,"immediately preceding" license application
                                              means five years nearest to the date of filing of the application);
                                              JM-107 (1983) (a j&i1 sentence of 72 hours requires prisoner to be
                                              released upon expiration of that period or as close to that time as is
                                              practicable); H-840 (1976) (former section 4(c) of article 4528c,
                                              requiring director of training to "have had at least five (5) years




                                                                                 p. 1567
                                                                          .



Ms. Joyce A. Hammer - Page 2   (JM-344)




experience in teaching nursjng . . ." must be applied and enforced as
it reads regardless of the "justice of its effect").

     Article 4528~ was substantially amended in 1981. Acts 1981, 67th
Leg., ch. 787, at 2990. Subsection 6(a) was amended to eliminate the
need for an applicant for examination to submit proof of certain
personal qualifications -- ;~a, age, character, physical and mental
condition, and citizenship. See S.J. of Tex., 67th Leg., 2238, 2244
(1981). The language requkix      proof of the applicant's successful
completion of an approved course in vocational nursing was only
slightly modified; however, the 12-month minimum course requirement
was left intact. Id. Sectj.ans6 and 7 were amended once more during
the last legislati~session.      House Bill No. 823. Acts 1985, 69th
Leg., ch. d     at      (not yet published). Once again, the 12-month
durational require=     was preserved. Id. Consequently, because the
legislature is presumed to be acquaintedwith conditions affecting the
subject matter- of legislat,lon, Brown v. Memorial Villages Water
Au;oH-;y,  ',"',",.;.2d453 ('Iex.Civ. App. - Houston 114th Dist.1 1962,
             . . . . we must nresume that the lenislature intended the
12-month provision to remaiiin effect, notwithstanding the trend to
conduct vocational nurse trrtiningin the classroom rather than in the
hospital.

     Article 4528~ clearly prescribes the minimum duration of an
approved course in vocatioral nursing. The board may not waive the
12-month minimum educatiolull.requirement, for it is clear that an
administrative agency may not waive statutory requirements in the
licensing process. Attornql General Opinion MW-131 (1980). Further-
more, the board may not create au exception for any institution,
either by rule or agreement, in any circumstance not         expressly
authorized by article 4528~. See V.T.C.S. art. 4528c, 506(b), 7. See
also Boss International, Inc.7     General Portland, Inc., 670 S.Wx
m(Tex.    App. - Austin 1981; no writ) (where the legislature states a
specific exception to a Matute, legislative intent that statute
should apply in all cases not excepted is clear).

     Accordingly, subsection 6(a) must be administered as it reads
regardless of the "justice of its effect." Attorney General Opinion
H-840 (1976). Furthermore, because we believe the wording of article
4528~. subsection 6(a) is cl.earand unambiguous, it must be given a
literal interpretation and any defects or deficiencies must be
corrected by the legislatwe and not this office. See Armstrong v.
Harris County, 669 S.W.2d Zs23 (Tex. App. - Houston [G  Dist.] 1983,
writ ref'd n.r.e.).




                                p. 1568
Ms. Joyce A. Rammer - Page 3     (JM-344)




                               SUMMARY

               The 12-month alnimum educational requirement
          of article 4528c, subsection 6(a), requires that
          an approved course i.nvocational nursing amount to
          at least 12 months of instruction.



                                         gg*                     w-

                                           Attorney General of Texas

TOM GREEN
First Assistant Attorney Genwal

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAT
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




                                  p. 1569
