August 14, 1969

Mrs. Marjorie Taber Ogle Opinion No. M-447 Executive Secretary Board of Vocational Nurse Re: Validity of Art. 4528c, Examiners Sec. 5(a), V.C.S., limitAustin, Texas ing licenses of vocational nurses to United States Dear Mrs. Ogle: Citizens.

Werefer to your recent request which In effect requests this office to answer the following question:

“May the Board of Vocational Nurse Examiners issue a nurse's license to aforeign person having apresence in the United States other than by one?" citizenship or declaration to become

TheAttorney General's Office has heretofore, In Opinion dated June 1, 1939, No. O-866, andaffirmed by Opinion No. R-2247, dated December 7, 1950, passed onthe question as to whether or not medical licenses could be limited to citizens of the United States; andin each Instance held that such a limitation violated the provisions of the Fourteenth Amendment to the Constitution of the United States as well as the Constitution of Texas. Wefind the question posed in your request analogous to the question answered in the prior opinions.

Article 4528c, V.C.S., along with Eertaln other specific qualifications, requires that the applicant

. . . Is a citizen of the United States or has 7ade adeclaration of intention of becoming a citizen.

. .

Asuccinct statement of the law, by various text writers, covering the issuance of licenses, by states, to aliens, Is as follows:

"The constitutional guaranty of equality Invalidates laws denying to aliens the right to obtain licenses to pursue ordinary callings.
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Thepower of the state to makereasonable classifications in legislating to promote the health, safety, morals andwelfare of those within Its jurisdiction does not go so far as to makeIt possible for the state to deny lawful inhabitants, because of their race or nationality, the ordinary meansof earning a livelihood. Am.Jur.2d-886, Aliens andCitizens. 'In the enactment of license laws, the state must observe the equal 'protection' clause of the Federal Constitution, which corresponds to the provisions of the Constitution of the State of Texas guaranteeing equality of rights to all persons. Theguaranty of the Fourteenth Amendmentis applicable to al&,persons within the territorlalnjurlsdictlon of the state, lneluding aliens. 27Tex.Jur., 874, License, Sec. 27. Theterm "any person' as used in the Fourteenth Amendmenthas been construed to Include aliens. Truax v. Raich, 239 U.S. 33 (1915); Colyer v. Skefflngton, 265Fed. II (D.C. M 1920). ass.,

In passing uponthe validity of anArizona statute requiring employers hiring more than five employees to employ not less than 80per cent qualified electors or citizens of the United States or somesubdivision thereof, the Supreme Court of the United States in'Truax v. Ralch, cited above, stated at p. 42: "The authority to control immigration--to admit or exclude aliens--Is vested solely In the Federal Government. FongYueTlng v. United States, 149U.S. 698, 713. Theassertion of anauthority to deny to aliens the opportunity of earning a livelihood whenlawfully admitted to the state would be tantamount to the assertion of the right to deny thementrance andabode, for In ordinary cases they cannot live where they cannot work. And, If such apolicy were permissible, the practical result would be that those lawfully admitted to the country under the acts of Congress, Instead of enjoying In a substantial sense andin their full scope the privileges conferred by the admission,
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Mrs. Marjorie Taber Ogle, page .3 M-447

would be segregated in such of the states as chose to offer hospitality.” In the case of Wormsenv. Moss, 29N.Y.S.2d 798, 803, 804 (19411, wefind anexcellent discussion bythe Court. amply supported-by citations , of the right of a state to denyor issue license for various occupations where the appl5cants are aliens, andreads as follows:

“The Fourteenth Amendmentto the Constitution 1s not confined to the protection of citizens. It applies to all persons within the territorial jurisdiction, without regard to differences of race, creed, color andnatlonYick Wov. Hopkins, 118U.S. 356, 369,

~‘:“:;. 1064, 30L.Ed. 220. Thusthe alien, like the citizen, has the right to engage in a lawful occupation. If the calling is one that the State, in the exercise of its police power, mayprohlblt either absolutely or condltlonally, ,by the exaction of a license, the fact of alienage mayjustify adenial of the privilege. But even then, there mustbe somerelation between the exclusion of the alien andthe protection of the public welfare. People v. Crane, supra, 214N.Y. at page 169, 108N.E. 427. Classification as between citizens ,andaliens Is permissible, but the classification musthave some reasonable basis In the welfare of the community. Miller v. City of Niagara Falls, 207App.Dlv. 798, 202N.Y.S. 549; MagnanlV, Harnett, supra. Thus, In a case involving a state statute which restricted licenses for barbers to citizens of the United States, the court said: ‘In the present case the relator’s business Is in nowayInjurious to the morals, the health, or even the convenience of the community, provided only he has the requisite knowledge upon the subjects prescribed by the legislature to practice his calling without endangering the health of his patrons. Tohold that he is not entitled to practice this calling, because not afull citizen of the United States, is to deny to himrights which wethink are preserved by the fourteenth amendment.’ Templar v. State Board of Examiners of Barbers, 131Mlch. 254, 258, goN.W. 1058, 1060, 100Am. St.Eep. 610. Thereasoning of that case Is

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peculiarly applicable to that of the petitioner Larsen-Bak. Moreover, clear evidence of the fact that there Is norelation here between the exclusion of analien andthe public welfare, is to be found in the recent enactment by the City Council NewYork City Local Laws No. 52-1941, effective June 30, 1941. That law lifted the restriction of the so-called Lyons Residence Lawfor a limited time so as to permit the employment of alien declarant doctors, internes andnurses in city hospitals. If the public interest furnishes noreason for their exclusion from public .servlce, it cannot furnish such areason for the exclusion of a declarant massage sperator whoseeks to pursue aprivate calling. Theonly Texas authority wefind In support of the above position Is the case of Poonv. Miller, 234S.W. 573 (Tex.Civ. App. 1921, nowrit), in which case the court cited with approval the case of Templar v. Board of Examiners, 90N.W. 1058 (Mich. Sup. 1902), which hId th t a statute th t denied the right to a certificate as a &.censid barber to an; alien wasunconstltutlonal under the provisions of the Fourteenth Amendment.

While aliens are not entitled to all of the privileges of citizens, wehave found noauthority to support the denial of the right to take the examination for a licensed vocational nurse, andupon makinga satisfactory grade thereon, is entitled to be licensed as a vocational nurse in the State of Texas and the granting of the license cannot be denied because such person is not a citizen of the United States nor has madea declaration of Intention of becoming acitizen. Therefore, we answer the question presented In the affirmative. SUMMARY TheBoard of Vocational Nurse Examiners may issue a license to analien, lawfully in the United States, whopossess all of the other qualifications set forth in Art. 4528c, Sec. 5(a), V.C.S., andwho has successfully passed the required examination, even though such person has not madeadeclaration of intention of becoming a citizen.

ey General of Texas -2219-Mrs. Marjorie Taber Ogle, page 5

Prepared byGordon C. Cass Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman SamL. Jones Phil Warner JamesQuick Jack Sparks HAWTHORNE

PHILLIPS Executive Assistant W.V. GEPPERT Staff Legal Assistant M-447

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