Honorable Erwin Barton Chairman Human ServicesCommittee Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769 OpinionNo. .JM-607
Re: Whether certainappointees are eligible to serve on the Board of Licensure forNursing Home Administrators
Mr. Karl E. Bishop, Ph.D. ExecutiveDirector Texas Board of Licensure For Nursing Home Administrators 3407 I-35North Austin. Texas 78722 * Gentlemen:
Mr. Bishop asks three questions about the qualifications of persons appointed to the Texas Board of Licensure for Nursing gome Administrators. Representative Barton asks one question which deals with the same subjectmatter asMr. Bishop's third question. Section 3 of article 4442d.V.T.C.S., determines the composition of theboard. It provides in part:

Sec. 3. (1)There is hereby created the Texas Board of Licensure forNursing Home Administrators which shall consist of nine (9) members. The Commissioner of Human Resources for the State of Texas, or his designee, and the Commissioner of Health of the Texas Department of Realth, or his designee, shallbe ex officiononvotingmembers of the board. Such designees shall be chosen from those representatives of the respective departments who are activelyassigned to and are engaged in work in the nursing home field. One member shallbe a physician duly licensedby the State of Texas; one member shall be an educator connected with a university program in public health or medical or nursinghome care administrationwithin the State of Texas or a psychiatristwhose field includesgeriatricor institutionalpsychiatry,or a psychologist whose field includes clinical

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psychology or educational psychology. Four (4) members shall be duly licensed nursing home administratorsof the State of Texas; however, at least one of these four shall represent a nonproprietary nursing home. Three (3)members must be representatives of the general public who are not licensedunder thisAct. (Emphasisadded). V.T.C.S. art. 4442d. $3(l).
Your first question pertains to the appointment of an educator. You state that he is not a psychiatrist or a licensed psychologist. Thus, to qualify for the position described in the underlined language of section 3(l), article 4442d. V.T.C.S., he would have to be "an educator connected with a university program in public health or medical -or nursing home care administration within the state of Texas. . . .'IThe individual appointed to the educator'sposition is a Professor of Management at the Universityof Texas at Austin.
You state that the University of Texas at Austin does not have a program in long termhealth care administration. If the appointee is actuallynot "Connectedwith a university program in public'health or xedical or nursinghome care administration,"thenhe does not qualify for the educator'sposition on theboard andmay not serve. Whether a particular educator is connected with such a program involves the investigationor resolutionof fact questions,which cannotbe done in the opinion process. We can, however, define the tee "university program"as it appears in section 3(l) of article 4442d.V.T.C.S.
You do not offer a definition of "university program" as it appears in the statute. We do not believe that "universityprogram" within the statute requires that the program lead to a university degree in one of the stated subjects. In other statutes, the legislaturehas used the specific term "degree program" to signify a course of study leading to an academic degree. See Educ. Code §§61.003(11);61.302(l), (7). A court of another stateas described an "educationalprogram" as

a series of courses related to the occupation or field forwhich the studenthas enrolled andwhich is sufficiently extensive and intensive within scheduledunits of time extendingover a period of one ormore school semesters to enable the student to develop competencies for advancing or continuing in that field. Angello v. Dusinberre, 363 N.Y.S.2d 520 (Sup. Ct. 1975), aff'd., 390 N.Y.S.2d 607 (App. Div. 1976). We believe "university program in public health or medical or nursing home care administration"means something less formal than a universitydegreeprogram. Itmy merely

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mean courses which a student may take to develop some knowledge and skill inpublichealth or medical or nursinghome administration. The Board of Licensure forNursingHome Administratorshas issued regulations outlining the content of programs of study designed to train and qualify individuals for licensure as nursing home administrators. 22 T.A.C. 5247.3; see V.T.C.S. art. 4442d, 5§6(1). (7); 0. These regulationsdo not dictate the kind of "universityprogram"with which the educator-boardmember must be connected, since the legislature established the educator's qualifications at the initial enactment of article 4442d, V.T.C.S., while the board subsequently developed educational requirements for licensure. Acts 1969, 61st Leg., ch. 411, at 1356; "The Board of Licensure for Nursing Home Administrators: StaffReport to the SunsetAdvisory Committee"at.6-8 in II Sunset Advisory Commission, Staff Reports (1978). Nonetheless, the educationalrequirementsfor licensing indicate the subjectswhich are relevant to "nursing home care administration." V.T.C.S. art. 4442d. 53(l). The course of study described by the regulations includesmanagement, accounting,business and personnel practices, as well as various topics in patient care. 22 T.A.C. 5247.3. The continuing education requirement may be satisfied by instruction in subject areas outlined in this regulation. 22 T.A.C. %247.4. We cannot determinewhether the educator-appointeeis qualified to serve on the board, but we can point out that the board's regulations establish management as a field relevant to licensing as a nursing home administrator.
Your next question concerns the qualifications of three board members appointed to seme as licensed nursing home administrators. Article 4442d.V.T.C.S.,provides in section 3(l) that fourmembers of theboard shallbe duly licensednursinghome administrators. Section 3 of article 4442d.V.T.C.S.. alsoprovides as follows:

(8)No person shall be eligible for service on this board as a nursing home administratorrepresentative unless he is the holder of a nursing home administrator's license under the provisions of this Act and is currently serving as a nursing home administrator. (Emphasisadded).
V.T.C.S. art. 4442d. §3(8). You state that threepersons appointed to positions for nursing home administrators are not serving as nursing home administrators. The statutedefines "nursinghome administrator"as the person who administers, manages, supervises, or is in general administrative charge of a nursing home, irrespectiveof whether or not such individualhas an ownership interest in suchhome,

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and whether or not his functions and duties are sharedwith one ormore otherpersons. . . . V.T.C.S. art. 4442d, §2(2). A person appointed to a board position allocated to a nursing home administrator must be serving in that capacity. If he is not serving as a nursing home administrator as that term is definedby statute,he is ineligible for service on the board.
You finally inquire about the status of a board member whose husbandwas elected to the Board of Directors of theTexas Health Care Association, a trade association in the nursing home industry. RepresentativeBarton also inquiresabout this appointee.. Section 3A of article 4442d. V.T.C.S., states the following restrictionson boardmembers:

(1)A member of the board or an employee of the board or of the Texas Board of Eealth who carries out the functionsof theboardmay not: (a)be an officer, employee,or paid consultant of a trade association in the nursing home industry; (b) be related within the second degree by affinity or within the third degree by consanguinity to a person who is an officer, employee, or paid consultant of a trade association in the nursinghome industry;or (c)communicate directly or indirectly with a party or the party's representative to a proceedingpendingbefore theboard unless notice and an opportunity to participate is given to all parties to the proceeding, if the member or agent is assigned tomake a decision,a finding of fact, or a conclusionof law in theproceeding. (Emphasisadded).
V.T.C.S. art. 4442d, %3A. Spouses are related by affinity within the degree affected by section 3A(l)(h) of article 4442d. V.T.C.S. Attorney General OpinionMW-286 (1980). The question ariseswhether a director of a trade association in the nursing home industry is "an officer" of that trade association. V.T.C.S. art. 4442d, §3A(l)(b).
At common law, an association is a body of persons acting together without a charter, but using the methods and forms of corporationsto pursue some common enterprise. PenrodDrilling Co. v. Johnson, 414 F.2d 1217, 1222 (5thCir. 1969);Weaver v. FirstNational

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Bank of Memphis, 224 S.W.2d 813, 817 (Ark. 1949);Clarkv. Grand Lodge of Brotherhoodof RailroadTrainmen, 43 S.W.2d 404, 408 (MO. 1931). Although trade associations need not incorporate, they are permitted to do so under the Texas Non-profit Corporation Act. V.T.C.S. art. 1396, 92.01A. See People ex rel. Padula et al v. Hughes, 16 N.E.2d 922, 924 (111. App. Ct. 1938). The legislature could reasonably have adopted section 3A(l)(h) having in mind the nonprofit corporationact and the structureof unincorporatedassociations which informally operate like nonprofit corporations. We will therefore examine the provisions of article 1396 to determinewhether the legislature intended the term "officer" in section 3A(l)(h) of article 4442d,V.T.C.S., to include "director." Article 1396,V.T.C.S., includes the followingdefinitions:

(7) 'Board of Directors' means the group of personsvested with the management of the affairs of the corporation, irrespective of the name by which such group is designated. (8) 'President'means that officer designated as 'president' in the articles of incorporation or by-laws of a corporation, or that officer authorized, in the articles of incorporation,the by-laws, or otherwise, to perform the functions of the principal executive officer, irrespective of the name by which he may be designated.
. . . . (Emphasisadded).
V.T.C.S. art. 1396, 51.02A. "Vice-president," "secretary," and "treasury" are also identifiedas officers, in definitions that track the definitionof "president." Although the definitions distinguish between directors and officers, other provisions state that a director occupies an office. For example,article 1396,V.T.C.S.,provides that

[t]hedirectors constitutingthe firstboard of directors
. . . shall hold office until the first annual election of directors.
. . . (Emphasis added).
Sec. 2.15B. Thus, a director, while not an executive officer of a nonprofit corporation,does hold an office. If the corporation is a church, the board of directorsmay carry out the duties of officers:

D. In the case of a corporation which is a church, it shall not be necessary that there be

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P

V.T.C.S. means, art. 1396, 52.20D. Moreover, the term "official capacity"

when used with respedt to a director, the office of director in the corporation.
. . . (Emphasis added). V.T.C.S. art. 1396, §2.22A.A(4)(a) (defined for purposes of indemnity provision).

officers as provided herein, but such duties and responsibilities may be vested in the board of trustees or other designated body in any manner provided for in the articles of incorporation or theby-laws.

Finally, in discussing a provision similar to the one under consideration here, a prior opinion of this office assumed that "directors" of a trade association were officers of that entity. Attorney General Opinion MW-173 (1980) construed the fol'lowing provisionof article 4442d,V.T.C.S.:

V.T.C.S.

Attorney summary: (a) be an officer, employee, *or paid

consultant of a trade asso.ciation in the nursinghome industry.
. . . (Emphasisadded).
art. 4442d, §3A(l)(a). The opinion stated in dicta:
We believe section 3A(l) of article 4442d, V.T.C.S.,prohibits a boardmember from serving as a director of a trade association in the nursing home industry.
. . . (Emphasisadded). General Opinion MW-173 at 2. The opinion stated in the

Boardmembersmay not serve as a director or other officer of these associations.
. . . (Emphasis added). Id. - The provisions of the Texas Non-profit Corporation Act and the language of Attorney General Opinion m-173 indicate that the legislature reasonably could have intended the term "officer" in section 3A(l)(h) of article 4442d,V.T.C.S., to include a director of

Sec. 3A(l) A member of theboard [ofLicensure forNursing Home Administrators]or an employee of the board or of the Texas Board of Health who carries out the functionsof theboardmay not:

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a tradeassociation in thenursinghome industry. Section 3A(l)(h)of article 4442d.V.T.C.S.. is a remedial statute in that itwas designed to prevent conflicts of interest that might arise from the close relationship between the licensing board and the trade association. See SunsetAdvisory Commission,Final Report to the Governor of Texas and Members of the Sixty-sixth Texas Legislature at 84, 87 (December 1978). The rule of liberal constructionapplies to remedial statutes. Insurance.Comissioners v. Great Southern Life Insurance Co., 239 S.W.2d SO3 (Tex. 1951). See generally Gov't. Code 9312.006(a) (revised statutes to be liberally construed to promote justice). Applying the rule of liberal construction,section 3A(l)(h)of article 4442d. V.T.C.S., prohibits a board member from being related within the seconddegreeby affinity to a personwho is a director of a trade association in the nursinghome industry. Accordingly, the individual aboutwhom you inquiremay not serve on theboard. SUMMARY The member of the Texas Board of Licensure for Nursing Home Administrators who qualifies as an "educator connected. with a university program in public health or medical'or nursing home care administration" need not be connected with a program leading to a university degree. A board member appointed to serve as a licensed nursing home administrator is not eligible for service on the board unless he is "currently serving as a nursing home administrator." The term "officer" of a trade association in the nursing home industry in section 3A(l)(h) of article 4442d, V.T.C.S., includes a director of such a trade association.
Ve trulyyour 

# J /lktti

& - JIM MATTOX AttorneyGeneral of Texas
JACK HIGHTOWER First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Preparedby SusanL. Garrison AssistantAttorneyGeneral

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