Untitled Texas Attorney General Opinion ( 1985 )

. .
The Attorne,y General of Texas
Au~;u.st 23. 1985
JIM MATTOX
Attorney General
Supreme Court Building
Ms. Joyce A. Hammer Opinion No. ~~-344
P. 0. Box 12546 Executive Director
Austin. TX. 76711. 2546 Board of Vocational Nurse Re: Meaning of Itapproved course
5121475-2501 Examiners of not less than 12 months" for
Telex 9101674-1367
Telecopier 512/475-0266
1300 East Anderson Lane purposes of the Licensed Voca-
Building C, Suite 285 tional Nurse Act, article 4528~.
Austin, Texas 18752 V.T.C.S.
714 Jackson, Suite 700
Dallas, TX. 75202.4506
Dear Ms. Hammer:
214/742-6944
You have reqwsted our assistance to clarify rhe meaning of
4624 Alberta Ave., Suite 160 certain language in the Licensed Vocational Nurse Act, article 4528~.
El Paso. TX. 799052793 V.T.C.S. Specifica3.3y,you ask whether subsection 6(a) of the act,
9151533.3464
providing that an applicant for the licensing examinarion administered
by the Board of Vocational Nurse Examiners submit proof that the
1001 Texas, Suite 700 applicant "has compteted an approved course of nor less than twelve
Houston, TX. 77002-3111 (12) months in an itpproved school for educating vocational nurses,"
7131223.5686 literally requires t:hat the course be of at least 12 months in
duration.
606 Broadway, Suite 312
Lubbock, TX. 79401.3479 Your concerns t&out the 12-month minimum educational requirement
6061747-5236 of article 4528~ stem from what you describe as the trend in most
states (including Twas) to remove vocational nurse training from the
hospital setting to the academic setting. In light of this trend, you
4309 N. Tenth. Suite B
McAllen, TX. 78501-1685
suggest that these programs cannot be literally described as being 12
512,662~4547 months in duration.
The guiding ru.e of sratutory construcrion is to give effect to
200 Main Plaza, Suite 400
the intention of t&r legislature. City of Sherman v. Public Utilire
San Antonio, TX. 76205.2797
51212254191
Commission of Texas, 643 S.W.2d 681; 684 (Tex. 1983). In general,
statutory time prov:isions are construed strictly, for the simple
reason that such requirements are clear and unambiguous and therefore
An Equal Opportunity/ leave little doubt o:Ethe legislature's intent. See, e.g., Attorney
Affirmative Action EvploYe- General Opinions .X4,-:!78
(1984) (srawte requiring five years' active
professional experience ,"immediately preceding" license application
means five years nearest to the date of filing of the application);
JM-107 (1983) (a j&i1 sentence of 72 hours requires prisoner to be
released upon expiration of that period or as close to that time as is
practicable); H-840 (1976) (former section 4(c) of article 4528c,
requiring director of training to "have had at least five (5) years
p. 1567
.
Ms. Joyce A. Hammer - Page 2 (JM-344)
experience in teaching nursjng . . ." must be applied and enforced as
it reads regardless of the "justice of its effect").
Article 4528~ was substantially amended in 1981. Acts 1981, 67th
Leg., ch. 787, at 2990. Subsection 6(a) was amended to eliminate the
need for an applicant for examination to submit proof of certain
personal qualifications -- ;~a, age, character, physical and mental
condition, and citizenship. See S.J. of Tex., 67th Leg., 2238, 2244
(1981). The language requkix proof of the applicant's successful
completion of an approved course in vocational nursing was only
slightly modified; however, the 12-month minimum course requirement
was left intact. Id. Sectj.ans6 and 7 were amended once more during
the last legislati~session. House Bill No. 823. Acts 1985, 69th
Leg., ch. d at (not yet published). Once again, the 12-month
durational require= was preserved. Id. Consequently, because the
legislature is presumed to be acquaintedwith conditions affecting the
subject matter- of legislat,lon, Brown v. Memorial Villages Water
Au;oH-;y, ',"',",.;.2d453 ('Iex.Civ. App. - Houston 114th Dist.1 1962,
. . . . we must nresume that the lenislature intended the
12-month provision to remaiiin effect, notwithstanding the trend to
conduct vocational nurse trrtiningin the classroom rather than in the
hospital.
Article 4528~ clearly prescribes the minimum duration of an
approved course in vocatioral nursing. The board may not waive the
12-month minimum educatiolull.requirement, for it is clear that an
administrative agency may not waive statutory requirements in the
licensing process. Attornql General Opinion MW-131 (1980). Further-
more, the board may not create au exception for any institution,
either by rule or agreement, in any circumstance not expressly
authorized by article 4528~. See V.T.C.S. art. 4528c, 506(b), 7. See
also Boss International, Inc.7 General Portland, Inc., 670 S.Wx
m(Tex. App. - Austin 1981; no writ) (where the legislature states a
specific exception to a Matute, legislative intent that statute
should apply in all cases not excepted is clear).
Accordingly, subsection 6(a) must be administered as it reads
regardless of the "justice of its effect." Attorney General Opinion
H-840 (1976). Furthermore, because we believe the wording of article
4528~. subsection 6(a) is cl.earand unambiguous, it must be given a
literal interpretation and any defects or deficiencies must be
corrected by the legislatwe and not this office. See Armstrong v.
Harris County, 669 S.W.2d Zs23 (Tex. App. - Houston [G Dist.] 1983,
writ ref'd n.r.e.).
p. 1568
Ms. Joyce A. Rammer - Page 3 (JM-344)
SUMMARY
The 12-month alnimum educational requirement
of article 4528c, subsection 6(a), requires that
an approved course i.nvocational nursing amount to
at least 12 months of instruction.
gg* w-
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genwal
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAT
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1569