                               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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