                            August 14, 1969


Mrs. Marjorie Taber Ogle                    Opinion No. M-447
Executive Secretary
Board of Vocational Nurse                  Re:   Validity  of Art. 4528c,
  Examiners                                      Sec. 5(a), V.C.S.,   limit-
Austin, Texas                                    ing licenses  of vocational
                                                 nurses to United States
Dear Mrs. Ogle:                                  Citizens.
               We refer   to your recent request    which In effect       re-
quests     this office    to answer the following    question:
            “May the Board of Vocational  Nurse Examiners
      issue a nurse's license  to a foreign person
      having a presence in the United States other
      than by citizenship  or declaration  to become
      one?"
           The Attorney General's Office has heretofore,   In
Opinion dated June 1, 1939, No. O-866, and affirmed by Opinion
No. R-2247, dated December 7, 1950,    passed on the question as
to whether or not medical licenses   could be limited to citizens
of the United States; and in each Instance held that such a
limitation  violated  the provisions of the Fourteenth Amendment
to the Constitution   of the United States as well as the Con-
stitution  of Texas.   We find the question posed in your request
analogous to the question answered in the prior opinions.
             Article   4528c, V.C.S., along with Eertaln other            specific
qualifications,      requires that the applicant  . . . Is a
citizen    of the United States or has 7ade a declaration    of
intention    of becoming a citizen.   . .
              A succinct   statement     of the law, by various    text
writers,     covering the issuance       of licenses, by states,    to
aliens,     Is as follows:
            "The constitutional    guaranty of equality
      Invalidates  laws denying to aliens the right
      to obtain licenses     to pursue ordinary callings.

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Mrs. Marjorie   Taber Ogle,    page 2              M-447


     The power of the state to make reasonable
     classifications   in legislating     to promote
     the health, safety,   morals and welfare of
     those within Its jurisdiction      does not go
     so far as to make It possible      for the state
     to deny lawful inhabitants,      because of their
     race or nationality,    the ordinary means of
     earning a livelihood.     Am.Jur.2d-886,    Aliens
     and Citizens.
           'In the enactment of license        laws, the
     state must observe the equal 'protection'          clause
     of the Federal Constitution,        which corresponds
     to the provisions      of the Constitution     of the
     State of Texas guaranteeing equality         of rights
     to all persons.      The guaranty of the Fourteenth
     Amendment is applicable      to al&, persons within
     the territorlalnjurlsdictlon        of the state, ln-
     eluding aliens.        27 Tex.Jur.,   874, License,
     Sec. 27.
          The term "any person' as used in the Fourteenth Amend-
ment has been construed to Include aliens.   Truax v. Raich, 239
U.S. 33 (1915); Colyer v. Skefflngton,  265 Fed. II (D.C. Mass.,
1920).
          In passing upon the validity    of an Arizona statute
requiring employers hiring more than five employees to employ
not less than 80 per cent qualified   electors    or citizens of
the United States or some subdivision    thereof,   the Supreme
Court of the United States in'Truax v. Ralch, cited above, stated
at p. 42:
            "The authority   to control    immigration--to
     admit or exclude aliens--Is       vested solely In the
     Federal Government.       Fong Yue Tlng v. United States,
     149 U.S. 698, 713. The assertion         of an authority
     to deny to aliens the opportunity        of earning a
     livelihood   when lawfully admitted to the state
     would be tantamount to the assertion        of the
     right to deny them entrance and abode, for In
     ordinary cases they cannot live where they
     cannot work.    And, If such a policy were per-
     missible,   the practical    result would be that
     those lawfully admitted to the country under
     the acts of Congress, Instead of enjoying In
     a substantial   sense and in their full scope
     the privileges    conferred by the admission,

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    Mrs. Marjorie   Taber Ogle,     page .3               M-447


         would be segregated in such of the states            as
         chose to offer hospitality.”
                In the case of Wormsen v. Moss, 29 N.Y.S.2d 798,
    803, 804 (19411, we find an excellent      discussion  by the Court.
    amply supported-by    citations , of the right of a state to deny-
    or issue license   for various occupations     where the appl5cants
    are aliens,   and reads as follows:
                 “The Fourteenth Amendment to the Consti-
         tution 1s not confined to the protection               of
         citizens.       It applies to all persons within
         the territorial       jurisdiction,      without regard
         to differences       of race, creed, color and natlon-
                    Yick Wo v. Hopkins, 118 U.S. 356, 369,
         ~‘:“:;.    1064, 30 L.Ed. 220.          Thus the alien,
         like the citizen,        has the right to engage in a
         lawful occupation.         If the calling       is one that
         the State, in the exercise            of its police power,
         may prohlblt      either absolutely        or condltlonally,
        ,by the exaction of a license,             the fact of
         alienage may justify         a denial of the privilege.
         But even then, there must be some relation                be-
         tween the exclusion        of the alien and the pro-
         tection    of the public welfare.           People v. Crane,
         supra, 214 N.Y. at page 169, 108 N.E. 427.
         Classification       as between citizens       ,and aliens Is
         permissible,      but the classification         must have some
         reasonable basis In the welfare of the community.
         Miller v. City of Niagara Falls,             207 App.Dlv. 798,
         202 N.Y.S. 549; Magnanl V, Harnett, supra.                 Thus,
         In a case involving        a state statute which restricted
         licenses     for barbers to citizens         of the United
         States, the court said:            ‘In the present case the
         relator’s     business Is in no way Injurious           to the
         morals, the health, or even the convenience of
         the community, provided only he has the requi-
         site knowledge upon the subjects prescribed                by
         the legislature       to practice      his calling    without
         endangering the health of his patrons.                To hold
         that he is not entitled          to practice      this call-
         ing, because not a full citizen             of the United
         States,    is to deny to him rights which we think
         are preserved by the fourteenth             amendment.’
         Templar v. State Board of Examiners of Barbers,
         131 Mlch. 254, 258, go N.W. 1058, 1060, 100 Am.
         St.Eep. 610. The reasoning of that case Is


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Mrs. Marjorie   Taber Ogle,    page Li             M-447



     peculiarly    applicable    to that of the petitioner
     Larsen-Bak.     Moreover, clear evidence of the
     fact that there Is no relation         here between
     the exclusion    of an alien and the public wel-
     fare, is to be found in the recent enactment
     by the City Council New York City Local Laws
     No. 52-1941, effective       June 30, 1941. That
     law lifted    the restriction     of the so-called
     Lyons Residence Law for a limited time so as
     to permit the employment of alien declarant
     doctors,   internes and nurses in city hospitals.
     If the public interest       furnishes   no reason for
     their exclusion     from public .servlce,    it cannot
     furnish such a reason for the exclusion          of a
     declarant massage sperator who seeks to pursue
     a private calling.
              The only Texas authority we find In support of the above
position    Is the case of Poon v. Miller,   234 S.W. 573 (Tex.Civ.
App. 1921, no writ),     in which case the court cited with approval
the case of Templar v. Board of Examiners, 90 N.W. 1058 (Mich.
Sup. 1902), which h Id th t a statute th t denied the right to
a certificate     as a &.censid barber to an; alien was unconstltu-
tlonal under the provisions     of the Fourteenth Amendment.
             While aliens are not entitled      to all of the privileges
of citizens,    we have found no authority      to support the denial
of the right to take the examination for a licensed          vocational
nurse,   and  upon making   a  satisfactory   grade thereon,  is entitled
to be licensed as a vocational         nurse in the State of Texas and
the granting of the license        cannot be denied because such
person is not a citizen       of the United States nor has made a
declaration    of Intention    of becoming a citizen.     Therefore,
we answer the question presented In the affirmative.
                        SUMMARY
           The Board of Vocational    Nurse Examiners may
     issue a license    to an alien,  lawfully in the United
     States, who possess all of the other qualifications
     set forth in Art. 4528c, Sec. 5(a), V.C.S.,     and who
     has successfully    passed the required examination,
     even though such person has not made a declaration
     of intention    of becoming a citizen.




                                         ey General of Texas
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Mrs. Marjorie   Taber Ogle,    page 5   M-447


Prepared by Gordon C. Cass
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Sam L. Jones
Phil Warner
James Quick
Jack Sparks
HAWTHORNE PHILLIPS
Executive Assistant
W. V. GEPPERT
Staff Legal Assistant




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