Hon. James P. Baker, Chairman Opinion No. M-068 

Texas Board of Licensure for 

Nursing Home Administrators .Re: 

6225 U.S. Highway 290 East 

Authority of Texas Board 

P. o:Box'4246 

of Licensure for Nursing 

Austin, Texas 78751 

Home Administrators, pursuant to Article 4442d, 

Vernon's Civil Statutes, 

to fix a licensing fee 

,of $50 per annum for 

"adminlstrators-inDear Mr. Baker: training." - 

Your recent letter requesting the opinion of this office 

concerning the referenced matter states, in part, as follows; 

~"The Texas Board of Licensure for Nursing' 

Home Administrators was created by the 61st Legislature to comply with section 1908 of the Social 

Security Act. . . which required, as a condition 

to receiving federal funds, that nursing homes be 

staffed with an administrator licensed by the appropriate state agency or board of the state in 

which the home was.located.. Because section 7 of 

the Texas act, Tex. Rev. Civ. Stat. Ann. art. 4442d 

(1969), prohibited the operation of a nursing home 

after July 1, 1970, unless such home was under the 

supervision of an administrator. duly licensed by 

the Board, many of the homes in Texas were faced 

with the possibility of closing, as it was impossible formany nursing home managers to meet 

the strict.licensing requirements by the deadline. 

llTo avoid the closing of many nursing homes 

throughout the state, the Board devised a licensing 

program whereby,those nursing .home managers who?could 

not obtain licenses by July 1, 1970, could receive 

on-the-job training in their nursing homes by experienced, licensed administrators who are designated 

'preceptors' by,the Bsard. Although valuable training and experience ~1s received through preceptors, it 

is the administrator-in-training who actually runs 

the nursing home on a daily basis. 

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Hon. James P. Baker, page 2 (M-868) 

'Pursuant to section lO(3) of the Texas act,~ 

the Board has fixed a license fee of $100 for administrators. Since the license is valid for two 

years, the annual cost to an administrator is $50. 

The Board also has issued administrator-in-training 

certificates to those persons who are undergoing 

training through preceptors in order to obtain 

licenses, and a fee of $50 per year is being assessed 

the administrators-in-training by the Board. 

the 

has 

fee 

Statutes 

strators 

request: 

"The Board respectfully requests the opinion of 

Attorney General on the question of whether it 

the authority to fix a certifying or licensing 

of $50 per year for administrators-in-training." 

The followln# portions of Article 4442d, Vernon's Civil 

("the Article ), which is the Texas Nursing Home AdminlLicensure Act, are relevant to the issue posed by your 

"Sec. 8. The Board shall have authority . 

to make rules and regulations not inconsistent 

with law as may be necessary or proper for the 

performance of Its duties . . . 

“Sec. 9. The Board shall have authority to 

issue licenses to qualified persons as nursing 

home administrators, and shall establish quallfication criteria for such nursing home administrators. 

No license shall be issued to a person as a nursing 

home administrator unless: 

“(2) he has satisfactorily completed a course 

of instruction and training prescribed by the board 

. . . 

by thE(?iarie h 

as passed an examination administered 

. . . 

'Sec. 10. (1) The Board shall license nursing 

home administrators in accordance with rules and 

regulations issued, and from time to time revised 

by it . , . 

II 

. . . 

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Hon. James P. Baker, page 3 (M-868) 

"(3) Each person licensed as a nursing home 

administrator shall pay a license fee to be fixed 

by the board which shall not exceed $100.00 (for 

a two-year period). (Emphasis adde,d.) 

Section 8 of the Article does authorize your Board to 

adopt "rules and regulations not inconsistent with law as may be 

necessary or proper for the performance of its duties. . .' If 

such rules and regulations are consistent with, related to, and 

in implementation of anv of the orovisions of the Article. such 

rules-and regulations are valid.* Kee v. Baber, 157 Tex. 387,~303 

S.W.2d 376 (1957); Texas State Board of Examiners in Optometry v. 

Carp, 412 S.W.2d 307 (Tex.Sup. lgb'(). 

However, the Article does not authorize the issuance of 

rules and regulations which are in excess of, or inconsistent with, 

the statutory provisions; nor may your Board impose any additional 

burdens, conditions, or restrictions in that regard which would 

result in giving them a higher or lower mandate than that of the 

statute. Kelly-v. Industrial Accident Board, 358 S.W.2d 874 (Tex. 

Clv.App. 1962, error ref.); Bailey v. Texas Indemnity Insurance Co., 

14 S.W.2d, 798 (Tex.Comm.App. 1929)' Att G l's Opinion No. 

M-609-A (1970); 2 Am.Jur.2d 126, A~rnini%%%iv?~~~, Sec. 300, and 

also, Id; at pp. 129-30, Sec. 361, wherein it is stated that an 

administrative agency cannot create a new license requirement or 

compel that to be done which lies without the scope of the statute. 

It is a well-established rule of law that fee statutes 

are to be strictly construed, and that where a statute contains 

no authorization for the imposition of a fee, none may be collected. 

Nueces County v. Carrington, 139 Tex. 297, 162 S.W.2d 687 (1942); 

Attorney General's Opinion No. v-1236 (1951). Cf. McCalla v. City 

of Rockdale, 112 Tex. 209, 246, S,W. 654 (1922). 

In Section lO(3) of Article 4442d, the Legislature has 

given your Board the power to fix a fee, not to exceed $50 per 

annum, which shall be paid by nursing home administrators. No 

mention is made in such Section of fees to be paid by nursing 

home "administrators-in-training", nor Is the Board therein given 

any authority to fix fees to be paid by such persons. 

Accordingly, in consonance with the foregoing authorities, 

this office is of the opinion that your Board has no authority to 

fix a licensing fee of $50 per annum to be paid by nursing home 

"administrators-in-training." 

-4219- 
. 

Hon. James P. Baker, page 4 

SUMMARY 

(M-868) 

The Texas Board of Llcensure for Nursing Home 

Administrators pursuant to Article 4442d(lO), Vernon's Civil Statutes, has no authority to fix a 

licensing fee of $50 per annum to,,be paid by nursing 

home "administrators-in-trafiing. 

General of Texas 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

William J. Craig 

Sally Phillips 

Llnward Shivers 

Harriet Burke 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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