Honorable Erwin Barton 

Chairman 

Human Services Committee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. .JM-607 

Re: Whether certain appointees 

are eligible to serve on the 

Board of Licensure for Nursing 

Home Administrators 

Mr. Karl E. Bishop, Ph.D. 

Executive Director 

Texas Board of Licensure For 

Nursing Home Administrators 

3407 I-35 North 

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 subject matter as Mr. Bishop's third question. 

Section 3 of article 4442d. V.T.C.S., determines the composition 

of the board. It provides in part: 

Sec. 3. (1) There is hereby created the Texas 

Board of Licensure for Nursing 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, shall be ex officio nonvoting members of 

the board. Such designees shall be chosen from 

those representatives of the respective departments who are actively assigned to and are engaged 

in work in the nursing home field. One member 

shall be a physician duly licensed by the State of 

Texas; one member shall be an educator connected 

with a university program in public health or 

medical or nursing home care administration within 

the State of Texas or a psychiatrist whose field 

includes geriatric or institutional psychiatry, or 

a psychologist whose field includes clinical 

p. 2709 
Honorable Erwin Barton 

Mr. Earl E. Bishop 

Page 2 (JM-607) 

psychology or educational psychology. Four (4) 

members shall be duly licensed nursing home 

administrators of 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 licensed under this Act. (Emphasis added). 

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. . . .'I The individual appointed to the educator's position is 

a Professor of Management at the University of Texas at Austin. 

You state that the University of Texas at Austin does not have a 

program in long term health care administration. If the appointee is 

actually not "Connected with a university program in public'health or 

xedical or nursing home care administration," then he does not qualify 

for the educator's position on the board and may not serve. Whether a 

particular educator is connected with such a program involves the 

investigation or resolution of fact questions, which cannot be 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 "university program" 

within the statute requires that the program lead to a university 

degree in one of the stated subjects. In other statutes, the 

legislature has 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 "educational program" as 

a series of courses related to the occupation or 

field for which the student has enrolled and which 

is sufficiently extensive and intensive within 

scheduled units of time extending over a period of 

one or more 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 university degree program. It my merely 

p. 2710 
Eonorable Erwin Barton 

Mr. Karl E. Bishop 

Page 3 (JM-607) 

mean courses which a student may take to develop some knowledge and 

skill in public health or medical or nursing home administration. 

The Board of Licensure for Nursing Home Administrators has 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 regulations do not dictate the kind of "university program" with 

which the educator-board member 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: Staff Report to the Sunset Advisory Committee" at.6-8 

in II Sunset Advisory Commission, Staff Reports (1978). Nonetheless, 

the educational requirements for licensing indicate the subjects which 

are relevant to "nursing home care administration." V.T.C.S. art. 

4442d. 53(l). The course of study described by the regulations 

includes management, 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 determine whether the educator-appointee is 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 four members of 

the board shall be duly licensed nursing home administrators. Section 

3 of article 4442d. V.T.C.S.. also provides as follows: 

(8) No person shall be eligible for service on 

this board as a nursing home administrator representative 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. (Emphasis added). 

V.T.C.S. art. 4442d. §3(8). You state that three persons appointed to 

positions for nursing home administrators are not serving as nursing 

home administrators. 

The statute defines "nursing home administrator" as 

the person who administers, manages, supervises, 

or is in general administrative charge of a 

nursing home, irrespective of whether or not such 

individual has an ownership interest in such home, 

p. 2711 
Honorable Erwin Barton 

Mr. Karl E. Bishop 

Page 4 (JM-607) 

and whether or not his functions and duties are 

shared with one or more other persons. . . . 

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 defined by statute, he is ineligible for service on the 

board. 

You finally inquire about the status of a board member whose 

husband was elected to the Board of Directors of the Texas Health Care 

Association, a trade association in the nursing home industry. 

Representative Barton also inquires about this appointee.. 

Section 3A of article 4442d. V.T.C.S., states the following 

restrictions on board members: 

(1) A member of the board or an employee of the 

board or of the Texas Board of Eealth who carries 

out the functions of the board may 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 

nursing home industry; or 

(c) communicate directly or indirectly with a 

party or the party's representative to a proceeding pending before the board unless notice and 

an opportunity to participate is given to all 

parties to the proceeding, if the member or agent 

is assigned to make a decision, a finding of fact, 

or a conclusion of law in the proceeding. 

(Emphasis added). 

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 Opinion MW-286 (1980). The question arises whether 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 

corporations to pursue some common enterprise. Penrod Drilling Co. v. 

Johnson, 414 F.2d 1217, 1222 (5th Cir. 1969); Weaver v. First National 

p. 2712 
Eionorable Erwin Barton 

Mr. Karl E. Bishop 

Page 5 (JM-607) 

Bank of Memphis, 224 S.W.2d 813, 817 (Ark. 1949); Clark v. Grand Lodge 

of Brotherhood of Railroad Trainmen, 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 corporation act and the structure of unincorporated associations which informally operate like nonprofit corporations. We will 

therefore examine the provisions of article 1396 to determine whether 

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 following definitions: 

(7) 'Board of Directors' means the group of 

persons vested 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. . . . . 

(Emphasis added). 

V.T.C.S. art. 1396, 51.02A. "Vice-president," "secretary," and 

"treasury" are also identified as officers, in definitions that track 

the definition of "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]he directors constituting the first board 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 directors may 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 

p. 2713 
Eonorable Erwin Barton 

Mr. Karl E. Bisho 

Page 6 (JM-607 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 

the by-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 

provision of 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 nursing home industry. . . . (Emphasis added). 

art. 4442d, §3A(l)(a). The opinion stated in dicta: 

We believe section 3A(l) of article 4442d, 

V.T.C.S., prohibits a board member from serving as 

a director of a trade association in the nursing 

home industry. . . . (Emphasis added). 

General Opinion MW-173 at 2. The opinion stated in the 

Board members may 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 the board [of Licensure 

for Nursing Home Administrators] or an employee of 

the board or of the Texas Board of Health who 

carries out the functions of the board may not: 

p. 2714 
Eonorable Erwin Barton 

Mr. Karl E. Bishop 

Page 7 (JM-607) 

a trade association in the nursing home industry. Section 3A(l)(h) of 

article 4442d. V.T.C.S.. is a remedial statute in that it was designed 

to prevent conflicts of interest that might arise from the close 

relationship between the licensing board and the trade association. 

See Sunset Advisory 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 construction applies 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 second degree by affinity to a person who is a director of a trade 

association in the nursing home industry. Accordingly, the individual 

about whom you inquire may not serve on the board. 

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 truly your J - & /lktti 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2715