Case Information
*1 The Attorney General of Texas
August 9, 1979
MARK WHITE
Attorney General Opinion No. RW-42
Margeret,L. Rowland Executive Secretary Re: Authority of the Board of
Board of Nurse Examiners Nurse Examiners to issue rules and for the State of Texas regulations for the practice 7600 Chevy Chase Drive nursing by advanced registered Austin, Texas 76752 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 purposeofthiilaw.... Bx sfoadw9. suns 312 See also Administrative Procedure and Texas Regkter Act, V.T.C.S. art. L”bbock lx. 79401 6252-134 S 4(a)(l), which relates to rules of practice before the agency. The
MM4M239 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 Pursuant to that opinion the board has colleges and universities. 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, - *2 _ ,- . . ..c - 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 the practice of nursing. Administrative agencies have only that substantively regulate 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 its duties, 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
123
0. *3 (NW-421 - Page Three
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