The opinion
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,
p. 122
_ ,- . . ..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
p. 124