JIM MATTOX 

Attorney General 

The Attorney General of Texas 

June 21, 1984 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

512/475G?501 

Telex 0101674.1367 

Telecopier 5121475.0266 

714 Jackson. Suite 700 

Dallas, TX. 75202-4506 

2141742-6044 

Honorable Chet Brooks opinion No. JM-173 

Chairman 

Committee on Health 8 Human Resources Re: The Nurse Practice Act 

Texas State Senate exception for acts done 

P. 0. Box 12068, Capitol Station under the control or superAustin, Texas 78711 vision or at the instruction 

of a physician 

Dear Senator Brooks: 

4624 Alberta Ave., Suite 160 

El Paso. TX. 70605-2703 

015/533.3484 

r 31 Texas, Suite 700 

,oustm, TX. 77002-3111 

713,223.5666 

606 Broadway, Suite 312 

Lubbock, TX. 70401-3470 

606,747.5236 

4309 N. Tenth, Suite S 

,&Allen, TX. 76501-1665 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205.2707 

51212254101 

An Equal Opportunity/ 

Affirmative Action Employer 

Your letter ~requesting an opinion from this office poses the 

following questions: 

1. Do the provisions of section 3.06(d) of the 

Medical Practice Act, article 4495b, V.T.C.S., 

governing physicians’ delegation of authority to 

nonphysicians apply to acts exempted from the 

Nurse Practice Act as ‘acts done under the control 

or supervision or at the instruction of one 

licensed by the Texas Board of Medical Examiners?’ 

2. Does the Board of Medical Examiners have 

the authority to regulate the details and means 

and manner of the physician’s [delegations of 

authority to nonphysicians acting under the] 

control or supervision or at the instruction of 

one licensed by the Texas State Board of Medical 

Examiners? In other words, may the board adopt 

regulations requiring that: (a) the instruction 

be addressed to the particular person who will do 

the act, (h) the instructing physician be 

familiar with the training and skill,s of the 

person who will do the act, or (c) the 

instruction be directed to a natural person and 

not to an institution or corporation? 

Article 4495b, section 1.03(8) defines “practicing medicine” as 

follows: 

(8) . . . A person shall be considered to be 

practicing medicine within this Act: 

p. 759 
Honorable Chet Brooks - Page 2 (JM-173) 

(A) who shall publicly profess to be a 

physician or surgeon and shall diagnose, treat. or 

offer to treat any disease or disorder, mental or 

physical, or any physical deformity or injury by 

any system or method or to effect cures thereof; 

or 

(B) who shall diagnose, treat, or offer to 

treat any disease or disorder, mental or physical, 

or any physical deformity or injury by any system 

or method and to effect cures thereof and charge 

therefor, directly or indirectly, money or other 

compensation. 

Article 4518. V.T.C.S., contains the following definition of 

"professional nursing": 

sec. 5. Insofar as any of the following acts 

require substantial specialized judgment and skill 

and insofar as the proper performance of any of 

the following acts is based upon knowledge and 

application of the principles of biologixal, 

physical, and social science as acquired by a 

completed course in an approved school of 

professional nursing, 'Professional Nursing' shall 

be defined as the performance for compensation of 

any nursing act (a) in the observation, assessment , intervention, evaluation, rehabilitation, 

care and counsel and health teachings of persons 

who are ill, injured or infirm or experiencing 

changes in normal health processes; (b) in the 

maintenance of health or prevention of illness; 

(4 in the administration of medications or 

treatments as prescribed by a licensed physician 

or dentist; (d) in the supervision or teaching of 

nursing; (e) in the administration, supervision, 

and evaluation of nursing practices, policies, and 

procedures. The foregoing shall not be deemed to 

include acts of medical diagnosis or prescription 

of therapeutic or corrective measures. 

There is considerable overlap between these definitions. A 

physician's license authorizes him to perform all nursing acts within 

sections 5(a). (b), and (c). The medical acts delegated to nonphysicians are virtually always acts involving the care and treatment 

of a patient. Moreover, s physician's license authorizes him to 

perform all nursing acts involving diagnosi~s, treatment, and care of a 

patient. See generally Baker v. State, 240 S.W. 924 (Tex. Grim. App. 

1921); Attorney General Opinions MW-318 (1981); H-1295 (1978); H-27 

(1973). We will therefore limit this opinion to those nursing acts 

set out in sections 5(a), (b). and (c), since it seems apparent that 

p. 760 
Honorable Chet Brooks - Page 3 (JM-173) 

this will adequately address the delegations about which you are 

concerned. 

The Nurse Practice Act permits licensed nurses under certain 

circumstances to perform medical acts that they could not otherwise 

perform without violating article 4495b. See V.T.C.S. art. 4495b, 

53.06(b)(4). The two acts are in pari mass and should be read 

together. - See 53 Tex. Jur. 2d Statutes 5186, at 280. 

When the Medical Practice Act and the Nurse Practice Act are read 

together, it is apparent that a licensed physician is exempted from 

the Nurse Practice Act only when his actions are authorized by the 

Medical Practice Act. Article 4528 makes the Nurse Practice Act 

inapplicable 

to acts done by persons licensed by any board or 

agency of the State of Texas if such acts are 

authorized by such licensing statutes. (Emphasis 

added). 

It is equally clear, however, that a physician violates the Medical 

Practice Act if he fails to conform his delegations of medical acts to 

the requirements of subsection 3.06(d)(l) of that act, article 4495b. 

V.T.C.S., which reads: 

[A] person licensed to practice medicine shall 

have the authority to delegate to any qualified 

and properly trained person or persons acting 

under the physician's supervision any medical act 

which a reasonable and prudent physician would 

find is within the scope of sound medical judgment 

to delegate if. in the opinion of the delegating 

phvsician, the act can be properly and safely 

performed by the person to whim the medical act is 

delegated and the act is performed in its 

customary manner, not in violation of any other 

statute, and the person does not hold himself out 

to the public as being authorized to practice 

medicine. The delegating physician shall remain 

responsible for the medical acts of the person 

performing the delegated medical acts. The [Texas 

State Board of Medical Examiners] may determine 

whether or not an act constitutes the practice of 

medicine, not inconsistent with this Act, and may 

determine whether any medical act may or may not 

be properly or safely delegated by 

physicians . . . . (Emphasis added). 

A physician is not relieved of his responsibility under the 

Medical Practice Act simply because the exception to the Nurse 

Practice Act makes the Nurse Practice Act inapplicable to "acts done 

p. 76i 
Honorable Chet Brooks - Page 4 (JM-173) 

? 

under the control or supervision or at the instruction of" a 

physician. V.T.C.S. art. 4528. The Medical Practice Act expressly 

provides that the physician "remains responsible for the medical acts 

of the person performing the delegated medical acts." Moreover, his 

personal exemption from the Nurse Practice Act is conditioned upon the 

validity of his acts under the Medical Practice Act. Thus, in answer 

to your first question, we advise that the provisions of section 

3.06(d) of the Medical Practice Act apply to a physician's delegation 

of authority to a non-physician even though the act delegated may come 

within the term, "nursing act," as described by the Nurse Practice 

Act. 

In contrast, however, the Nurse Practice Act exemption for 

non-licensed persons acting under the supervision, control or 

instruction of a licensed physician is not conditioned upon the 

physician's actual authority to delegate theact. In our opinion, the 

Nurse Practice Act is designed to protect persons who, in good faith, 

act at the direction of a licensed physician, though the physician may 

have violated the Medical Practice Act in giving the direction. 

Section 3.07(i) of the Medical Practice Act, with which the Nurse 

Practice Act must be read, expressly provides: 

A person to whom a physician has delegated a 

medical act to perform is not guilty of practicing 

medicine without a license unless the person acts 

with knowledge that the delegation and action 

thereunder is a violation of this Act. 

We conclude that a physician may violate the Medical Practice Act by 

delegating nursing acts in a manner not permitted by the Medical 

Practice Act, but that a person performing the delegated nursing act 

in good faith -- although acting as the delegate= of such a physician 

-- violates neither the Nurse Practice Act nor the Medical Practice 

Act. 

Your second question consists of a general inquiry and three 

subparts. The general question asks whether the Texas State Board of 

Medical Examiners has authority to regulate the details, means, and 

manner of delegating nursing acts to be done under a physician's 

control or supervision or at his instruction. 

We have already observed that the provisions of section 3.06(d) 

of the Medical Practice Act apply to a physician's delegation of 

article 4518 nursing acts to non-physicians. The final sentence of 

subsection 3.06(d)(l) of the Medical Practice Act, states: 

The board may determine whether or not an act 

constitutes the practice of medicine, not 

inconsistent with this Act. and may determine 

p. 762 
Honorable Chet Brooks - Page 5 (JM-173) 

whether any medical act may or may not be properly 

or safely delegated by physicians . . . . 

since, in our view, nursing acts in question are species of medical 

acts under the Medical Practice Act , we advise that the Texas State 

Board of Medical Examiners does have such authority, consistent with 

the Medical Practice Act. 

The subparts of your question concern the authority of the Texas 

State Board of Medical Examiners to require that a physician's 

instructions be addressed to a particular person. to require that the 

instructing physician be familiar with the training and skills of the 

person who will perform the delegated act, or to require that such 

instructions be directed to a natural person rather than to an 

institution or corporation. 

Regulations of the board respecting a physician's delegations of 

medical acts must be "not inconsistent" with the Medical Practice Act, 

which expressly states that 

the individual physician should be given the 

greatest opportunity to exercise his best 

independent professional judgment in deciding what 

medical acts can be safely delegated; therefore. 

rules of the board regulating delegation should 

have the purpose of promoting such exercise of 

professional judgment and decision by not 

containing, except as absolutely necessary, global 

prohibitions or restrictions on delegation of 

medical acts . . . . 

V.T.C.S. art. 4495b, §1.02(8). Furthermore, the act is to be 

construed in a way that permits licensed physicians to delegate such 

acts to "any qualified and properly trained person or persons" under 

his supervision. Id. 03.06(d)(l). We think the Texas State Board of 

Medical Examiners, pursuant to the statute. might set standards 

applicable to the selection of persons "qualified and properly 

trained" to perform particular acts under the physician's supervision, 

but not itself to select the only individuals to whom such acts might 

be delegated. - Cf. 22 T.A.C. 1193.1 (1982). 

We also believe the board has statutory authority to require that 

physicians be familiar with the training and skills of the person whom 

the physician instructs to perform delegated medical acts. Such power 

is easily encompassed by the express authority of the board to 

"determine whether any medical act may or may not be properly or 

safely delegated by physicians." V.T.C.S. art. 4495b. 53.06(d)(l). 

Similarly, it would not be inconsistent with the Medical Practice 

Act for the board to require that instructions of a physician 

concerning the performance of delegated medical acts be directed only 

p. 763 
Honorable Chet Brooks - Page 6 (JM-173) 

to natural persons. Section 1.03(6) of the act states that the word 

"person," as used in the act, "means an individual unless otherwise 

expressly made applicable to a partnership, association, or 

corporation." Section 3.06(d) thereof, which allows such delegations, 

speaks only of "persons" and is not "otherwise made applicable" to 

institutions or corporations. _ Cf. Attorney General Opinions MU-318 

(1981); H-395 (1974). 

SUMMARY 

A physician may violate the Medical Practice 

Act by delegating nursing acts in a manner not 

permitted by the Medical Practice Act, but a 

non-licensed person performing the delegated 

nursing act in good faith -- although acting as 

the delegatee of such a physician -- violates 

neither the Nurse Practice Act or the Medical 

Practice Act. The Texas State Board of Medical 

Examiners has authority, consistent with the 

Medical Practice Act, to regulate the details, 

means and manner of delegating nursing acts done 

under a physician's control or supervision or at 

his instruction. 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 764