# The Attorney General ofTexas August 9, 1979
MARK WHITE Attorney General Margeret,L. Rowland Executive Secretary Board ofNurse Examiners for the State ofTexas 7600Chevy 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 ofNurse 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 S4(a)(l), which relates to rules ofpractice 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 ~tbeBoard 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 oflaw and that any prosecution wouldberequired tobe based on the statute rather than on the regulation. See Chrysler Corp. v. Brown, -

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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 LawTreatise, SS.5.02 5.03 (1958). Theboard lacks authority to promulgate comprehensive rules having the force oflaw that substantively regulate the practice of nursing. Administrative agencies have only those powers expressly granted bystatute or implied from statutory authoritv and duties. Stauffer v. City-of SanAntonio, 344S.W.2d158,i60 (Tex. 1961);Attorney General Opinions H-R99 (1978), H-1093 (1977); see Board of Insurance Commissioners v. Guardian Life Insurance Co., 180S.W.2d 906, 908 (Tex. 1944); Humble OiJ & Refining Co. v. Railroad Commission, 128S.W.%d9, 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 ofchiropractic);~ V.T.C.S. art. 4551d(Board ofDental 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 ofrule-making power which authorized the Board of Examiners In Optometry “to make such rules and regulations not inconsistent with this law as may benecessary for the performance of its duties, the regulation of the practice of optometry and the enforcement ofthis Act.” Acts 1939,46th Leg., ch. 4, S3 at 362. This grant ofpower, 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, ocdictating methods ofpractice 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General

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Prepared byC. Robert Heath and Susan Garrison Assistant Attorneys General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman David B.Brooks Bill Campbell Rick Gilpin William GReid Bruce Youngblcod

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