The Attorney General of Texas 

August 9, 1979 

MARK WHITE 

Attorney General 

Margeret,L. Rowland 

Executive Secretary 

Board of Nurse Examiners 

for the State of Texas 

7600 Chevy Chase Drive 

Austin, Texas 76752 

Opinion No. RW-42 

Re: Authority of the Board of 

Nurse Examiners to issue rules and 

regulations for the practice of 

nursing by advanced registered 

nurse practitioners. 

Dear Ms. Rowland: 

Bx sfoadw9. suns 312 

L”bbock lx. 79401 

MM4M239 

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.... 

See also Administrative Procedure and Texas Regkter Act, V.T.C.S. art. 

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