                                   March 2,     1955


Mr. M. B. Morgan                          Opinion      No.   S-153
Commissioner
Bureau of Labor Statistics                Re:     Applicability       of the
Capitol  Station                                  Private    Employment
Austin 11, Texas                                  Agency Law, Article
                                                  5221a-6,    V.C.S.,    to
                                                  a voluntary     associa-
                                                  tion of undergraduate
Dear Mr. Morgan:                                  and vocational       nurses.

            Your request    for   an opinion   relates    to a group of
undergraduate   and licensed      vocational   nurses who have organ-
ized a voluntary    association     and set up a non-profit      nurses
registry  to which they pay       monthly dues or assessments       to
pay the registrar's     salary    and Incidental     expenses  of the
registry.

              It has been    reported  to your office   that the
association     registrar    makes placements    for the member
nurses by contacting        hospitals  and offering   to supply
nurses when they are        needed.   The nurse is usually    en-
gaged by the hospital        and paid by the patient    for her
services    s

             In view of the     above facts     you ask these        ques-
tions   which we paraphrase      as follows:
             1. Would the practice     of solicitation  or adver-
tisement    either   for members for the association    or for
employment for the members of such association         make the
association     subject  to the Private   Employment Agency Law?

             2. If the above question    is answered in the
negative,    to what extent may such association         go in the
solicitation     of membership as well as soliciting        emplog-
ment for the members of the association          through hospitals
and physicians     without being in violation       of the Private
Rmployment Agency Law.       Would such registrar      be prohibited
from recommending to the various       hospitals     that they use
the service    of the registry?
Mr.   M.   B. Morgan,   page 2 (S-153)



             The sedtions   of the    Private    Employment Agency
Law, Article    5221a-6,   Vernon’s    Civil    Statutes, pertaining
to your questions     are:

             “Section 1, (e) ‘Private    Etnployment Agent’
       means any person in this State who for a fee
       or without a fee offers   or attempts    to procure
       employment for employees.    . .”

              “Section     2. . . . The provisions   of this
       Act shall not apply . . . to any nurses’ organl-
       zation    operated    without profit  when conducted
       by registered      nurses for the enrollment    of its
       professional      members only for the purpose of
       proviSflng    professional    service to the public;
       . . .

           The queEition which arises      Is whether this associa-
tion is within the exemption       set out in Section   2 above.
In Attorne    General’s   opinions    numbered O-6879 (1945) and
O-7369 (19 g 6) this office    passed on the question    of member-
ship fees charged by a nurses organization.          In O-7369 it
is stated:

              “The facts   indicate that a group of undergraduate
       and practical     nurses are seeking   to form a VoluntaFg
       association    and hire 8 person to keep a record          of
       their   employment and assess    themselves    a sufficient
       amount per month to pay the salary        of the person so
       employed,    and all other Incidental     expenses.      It is
       the opinion    of this department that such voluntary
       organization    does not come within     the definition       of
       an employment or labor agent.       . .”

             These opinions   were rendered    under Section    2 of
Article    5221a-4,  :.C.S.,  which provided    for the exemption
in these words:        . . . the provisions    of said Act shall
not apply . . . to any nurses’ organizations           operated  not
for nroflt,    to be conducted   by recognized     professional
registered    nurses for the enrollment     of its professional
members only for the purpose of providing          professional
service    to the public.’
Mr.   M.   B. Morgan,   page   3 (S-153)



            Said section     was repealed   and r.eenacted by Sec-
tion 2 of Article      5221a-6 ~above.    The only difference     was
the omission    of the words "recognized      professional"    from
the current   act.     Thus under the facts    given and In accord
with our prior     opinions   we must hold that this association
would be within the exception        given in Section     2 of the
Act.

           Having placed this Association     within the excep-
tion given in Section    2, we turn to your first     question
which is that when there has been an overt act of solicita-
tion of members or an attempt to procure       employment for the
members of the Association    is the Association     within the
exception?

             Once an organization       has met the tests       of profit
and control,      which were the basis of opinions         O-5424, O-
6879, and O-7369, the fact         that the modus operandi        of the
organization      as to procurement     of employment may be similar
to organizations       operating   for profit    would not change the
basic   structure     of the organization      nor the reason for al-
lowing such exception.          The Legislature    stated    In the Article
in question,      *for the purpose of providing        professional       ser-
vices   to the public,*      which would reasonably       contemplate
some kind of advertisement         or active    campaign to make hospi-
tals and physicians        as well as the public      aware of the pro-
fessional    services    which can be rendered      by the nurses.

            It Is our opinion     that your first question  should
be answered negatively.        As to your second question  which
deals with the extent of such solicitation,       it is our
opinion   that this would be a subject     to be governed by
the ethics    of the societies    of which these nurses are
members,

                                     SUMMARY

              Solicitation     of members and employment by
       an association       of undergraduate   and licensed
       vocations1      nurses does not remove such organi-
       zation.    from the exception     provided  in Section 2
       of Article      5221a-6a,  V.C.S.
Mr. M. B. Morgan,        page   4 (S-153)



             The extentto; which such-prganlfatio?    may
        go to procure   employment for Its memDers 18 CO
        be governed by'the    societies in which said nurses
        are registered.

APPROVEDr                               Yours   very    truly,

J.~ Fred dimes                          JOHN BEN SHEPPERD
State Affairs        Division           Attorney    General
                                                 ::
J. A. Amis,      Jr.
Reviewer
                                        BY
John Reevea
Reviewer                                    Aesiatant

Robert    5.   Trottl
First    Assistant
