The opinion
May 23, 1967
Mr. H. M. Cardwell, President Opinion No. M-78
Board of Vocational Nurse Examiners
1008 Sam Houston Building Re: Whether Board of Voca-
Austin, Texas tional Nurse Examiners
is authorized to sub-
scribe to the National
League for Nursing test
pool examination as the
Bear Mr. Cardwell: Board's testing method.
You have requested the opinion of this office concerning
the question of whether the Board of Vocational Nurse Examiners
may use the National League for Nursing test pool examination as
its llcensure examination for those Individuals seeking to obtain
a license as a Licensed Vocational Nurse pursuant to the provisions
of Article 4528c, Vernon!s Civil Statutes.
In connection with the foregoing question you have stated
that:
"It has been the practice of the Board
of Vocational Nurse Examiners for the past four-
teen years to construct Its own licensure ex-
amination for graduates of the year's vocational
nurse training program. All of the states except
Texas subscribe to the National League for Nursing
test pool examination as their testing method,
making It necessary for our LVN's seeking reciprocity
In other states to write examination twice.
". . .
"The Board does not examine the questions
before the examination is given but does examine
them at the time of the examination and sets the
grades. The contract with the National League for
Nursing for use of the pool examination could be
cancelled at any time by our Board a;d we could go
back to giving our own examinations.
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Mr. H. M. Cardwell, page 2 (M-78)
Section 5 of Article 4528c, provides, in part, that:
“(a) Except as provided In Section 6 and
Section 7 of this Act, every person desiring to
be licensed as a Licensed Vocational Nurse or
use the abbreviation L. V. N. In the State of
Texas, shall be required to pass the examination
given by the Board of Vocational Nurse Examiners.
. . .
*
. . .
“(cl In conducting examinations and In
accrediting? chools of Vocational Nurses and
hospitals as provided for In this Act, it shall
be mandatory upon the Board to ascertain that
each Vocational Nurse shall have been taught the
?undamentals of basic bedside nursing I th home
and In the hospital. . . .” (HmphasisnaddEd.)
In Attorney General’s Opinion No. v-736 (1948), this
office had before It a like question dealing with examinations
given by the State Board of Nurse Examiners. In holding that the
State Board of Nurse Examlners could use questions prepared bythe
National League of Nursing Education for the examination of ap-
plicants to practice professional nursing, the opinion stated:
“Not only do the above quoted statutes
impose a duty upon the Board to prescribe the
type of examinations as it may deem best in
order to determine the fitness of the avnlicants
to practice professional nursing, but it-leaves
it within the sound discretion and judgment of
the Board as to the method of prescribing such
examinations as well as grading the examination
papers of the applicants.
“True, the Board is not authorized to dele-
gate the power of giving such examinations to
anyone else. However,’ we do not believe that the
mere fact that the Board adopts questions prepared
by the National League of Nursing Education amounts
to a delegation of power. On the contrary, if the
Board thinks that the purpose of the law would be
more effectively carried out by conducting such
examinations through the method referred to In
your l;;equest, we believe that it has such power.
. . . (Bnphasls added. )
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.
Mr. H. M. Cardwell, page 3 (M-78)
In Attorney General's Opinion No. ~-2831 (1952), this
office had before it the question of whether the Board of Voca-
tional Nurse Examiners could prescribe examinations formulated
by the National League of Nursing Education, and in such opinion
it was stated:
II
.it Is apparent that a distinction
must be drawn between any delegation of the
power to examine on the one hand and a simple
choice to prescribe that set of questions which
the national group has drafted in each instance.
The Board may not surrender its power to prescribe
the questions for the examinations by a blanket
order adopting In advance any and all questions
drafted by the National League of Nursing Educa-
tion, to the exclusion of the Board's duty to
pass on the adequacy and acceptability of each
set of questions and to formulate other questions
if it finds that those prepared by the National
League are not suitable. However, as was held
in Opinion v-736, the Board may adopt questions
repared by the National League If upon scrutiny
n each Instance It finds that the set of ques-
tions furnished to it is satisfactory." (Emphasis
add e d . )
Attorney General's Opinion Nos. v-736 (1948) and ~-2831
(1952) clearly disclose that the Board of Vocational Nurse Examiners
Is authorized to use the National League for Nursing test pool ex-
smlnation as Its llcensure examination for those Individuals seeking
to obtain 'a license as a Licensed Vocational Nurse pursuant to the
provisions of Article 4528~. The mere fact that the members of the
Board of Vocational Nurse Examiners do not see the examination ques-
tions until the time of the examination Is not in Itself sufficient
to reach a' conclusion that there has been an Improper delegation of
the Board's authority to prescribe the examination to be given ap-
plicants for llcensure. The Board still retains the right to study
the examination questions provided by the National League for Nursing
and reach a decision as to whether the questions submitted are
satisfactory and will be used. As the Board sets the grades In
connection with the examination and can terminate use of the test
pool examinations submitted by the National League for Nursing at
any time, we are of the opinion that an arrangement such as proposed
would be wlthin the authority and sound discretion of the Board and
would not constitute an improper delegation of their duties and au-
thority in connection with the examination of applicants for llcen-
sure.
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Mr. H. M. Cardwell, page 4 (M-78)
If the Board should determine that the test pool
examination is lnadequate'to meet the requirements of Article,
4528c, then It will be the duty of the Board to give additional
examination questions in order that the examination will comply
with the mandatory requirements of said Article.
SUMMARY
The Board of Vocational Nurse Examiners may
use the National League for Nursing test pool
examination as its licensure examination for those
individuals seeking to obtain a license as a
Licensed Vocational Nurse pursuant to Article
4528c, Vernon's Civil Statutes, and under the
proposed arrangement such action would not con-
stitute an improper delegation of the Board's
duties and authority in connection with the
examination of applicants for licensure.
If the Board should determine that the teat
pool examination is inadequate to meet the re-
quirements of Article 4528c, then it will be the
duty of the Board to give additional examination
questions In ord,er that the examination will com-
ply with the mandatory requirements of said
Article.
Vm truly yours,
g?z-
. ‘MART N
General of Texas
Prepared by Pat Bailey
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Hawthorne Phillips, Chairman .
W. V. Geppert, Co-Chairman
Lewis Berry
Ralph Rash
Jack Sparks
James McCoy
STAFF LEGALASSISTANT
A. J. Carubbl, Jr.
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