                           The Attorney General of Texas
                                                  August     9,   1979

MARK WHITE
Attorney General


                       Margeret,L. Rowland                        Opinion No. RW-42
                       Executive Secretary
                       Board of Nurse Examiners                   Re: Authority        of the Board of
                         for the State of Texas                   Nurse Examiners to issue rules and
                       7600 Chevy Chase Drive                     regulations    for the practice       of
                       Austin, Texas 76752                        nursing by advanced         registered
                                                                  nurse practitioners.

                       Dear Ms. Rowland:

                               You ask whether the Board of Nurse Examiners has statutory authority
                       to issue rules and regulations for the practice of advanced registered nurse
                       practitioners.  Article 4514, V.T.C.S., authorizes the board to

                                  make such by-laws and rules as may be necessary to
                                  govern its proceedings and carry into effect the
                                  purposeofthiilaw....
Bx sfoadw9. suns 312
L”bbock lx. 79401      See also Administrative    Procedure and Texas Regkter Act, V.T.C.S. art.
MM4M239                6252-134 S 4(a)(l), which relates to rules of practice before the agency. The
                       board has authority under article 4518, V.T.C.S., to prescribe regulations for
                       accredited schools of nursing and educational programs for the preparation
                       of professional nurses. Attorney General Opinion H-896 (1976) determined
                       that the board may accredit specialty programs in nursing offered by
                       colleges and universities.       Pursuant to that opinion the board has
                       promulgated rules for an “advanced nurse practitioner program” even though
                       there is no authority for a separate licensing category .of advanced nurse
                       practitioners.


                              Attorney  General Opinion H-1093 (1977) involved the prohibition
                       against using designations    which would tend to imply falsely that an
                       individual was a registered nurse. That opinion indicated that ~tbe Board of
                       Nurse Examiners could promulgate regulations which “would have the effect
                       of apprising potential violators of those designations whose use the board
                       intends to prosecute.” The opinion indicated that such regulations would not
                       have the force of law and that any prosecution would be required to be based
                       on the statute rather than on the regulation. -See Chrysler Corp. v. Brown,




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_ ,-   . . ..c




             Margaret L. Rowland    -   Page Two      (MW-42)



            47 U.S.L.W. 4434 (U.S. April 18, 1979); Skidmore v. Swift dt Co., 323 U.S. 134, 137-140
            (1944); Davis, Administrative Law Treatise, SS.5.02 5.03 (1958).

                   The board lacks authority to promulgate comprehensive rules having the force of law
            that substantively regulate the practice of nursing. Administrative agencies have only
            those powers expressly granted by statute or implied from statutory authoritv and duties.
            Stauffer v. City-of San Antonio, 344 S.W.2d 158, i60 (Tex. 1961); Attorney General Opinions
            H-R99 (1978), H-1093 (1977); see Board of Insurance Commissioners v. Guardian Life
            Insurance Co., 180 S.W.2d 906, 908 (Tex. 1944); Humble OiJ & Refining Co. v. Railroad
            Commission, 128 S.W.%d 9, 15 (Tex. 1939); Harris, The Administrative Law of Texas, 29
            Tex. L. Rev. 213 (1950). The board has no exoress authority to renulate the oractice of
            nursing.    Compare V.T.C.S. art. 4509 (Board of Medical-Exam&errs may ,make rules
             regulating the practice of medicine); V.T.C.S. art. 4512b (Board of Chiropractic Examiners
             may make rules regulating practice of chiropractic);~ V.T.C.S. art. 4551d (Board of Dental
             Examiners may make rules defining acts of practice and governing relationship between
            dentists, dental hygienists, and dental assistant&

                   Jn Kee v. Baber, 303 S.W.2d 376 (Tex. 19571, the Supreme Court examined a broad
            grant of rule-making power which authorized the Board of Examiners In Optometry “to
            make such rules and regulations not inconsistent with this law as may be necessary for the
            performance     of its duties, the regulation of the practice of optometry          and the
            enforcement of this Act.” Acts 1939, 46th Leg., ch. 4, S 3 at 362. This grant of power,
            which authorized boerd rules regulating “bait” advertising and corporate practice, was
            contrasted with the narrower delegation of power to such administrative        bodies as the
            Board of Nurse Examiners.      Kee v. Baber, s      at 379, n. 4. In the absenqe of more
            specific statutory authority, the board may not promulgate rules having the force of law
            limiting, oc dictating methods of practice by advanced registered nurse practitioners.

                                                     SUMMARY

                       The Board of Nurse Examiners may not issue substantive rules
                       having the force of law regulating the practice of advanced
                       registered nurse’practitioners.




                                                            MARK ,WHITE
                                                            Attorney General of Texas

            JOHN W. FAINTER, JR.
            First Assistant Attorney General

            TED L. HARTLEY
            Executive Assistant Attorney   General




                                                       0.   123
Margaret L. Rowland   -     Page Three    (NW-421



Prepared by C. Robert Heath
and Susan Garrison
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bill Campbell
Rick Gilpin
William G Reid
Bruce Youngblcod




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