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. 

We refer 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 a foreign person 

having a presence in the United States other 

than by 

one?" 

citizenship or declaration to become 

The Attorney General's Office has heretofore, In 

Opinion dated June 1, 1939, No. O-866, and affirmed by Opinion 

No. R-2247, dated December 7, 1950, passed on the question as 

to whether or not medical licenses could be limited to citizens 

of the United States; and in 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. We find 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 a declaration of 

intention of becoming a citizen. . . 

A succinct 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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The power of the state to make reasonable 

classifications in legislating to promote 

the health, safety, morals and welfare of 

those within Its jurisdiction does not go 

so far as to make It possible for the state 

to deny lawful inhabitants, because of their 

race or nationality, the ordinary means of 

earning a livelihood. Am.Jur.2d-886, Aliens 

and Citizens. 

'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. The guaranty of the Fourteenth 

Amendment is applicable to al&, persons within 

the territorlalnjurlsdictlon of the state, lneluding aliens. 27 Tex.Jur., 874, License, 

Sec. 27. 

The term "any person' as used in the Fourteenth Amendment has been construed to Include aliens. Truax v. Raich, 239 

U.S. 33 (1915); Colyer v. Skefflngton, 265 Fed. II (D.C. M 

1920). 

ass., 

In passing upon the validity of an Arizona statute 

requiring employers hiring more than five employees to employ 

not less than 80 per cent qualified electors or citizens of 

the United States or some subdivision 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. Fong Yue Tlng v. United States, 

149 U.S. 698, 713. The assertion of an authority 

to deny to aliens the opportunity of earning a 

livelihood when lawfully admitted to the state 

would be tantamount to the assertion of the 

right to deny them entrance and abode, for In 

ordinary cases they cannot live where they 

cannot work. And, If such a policy 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 and in 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 Wormsen v. Moss, 29 N.Y.S.2d 798, 

803, 804 (19411, we find an excellent discussion by the Court. 

amply supported-by citations , of the right of a state to denyor issue license for various occupations where the appl5cants 

are aliens, and reads as follows: 

“The Fourteenth Amendment to 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 and natlonYick Wo v. Hopkins, 118 U.S. 356, 369, 

~‘:“:;. 1064, 30 L.Ed. 220. Thus the 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, 

may prohlblt either absolutely or condltlonally, 

,by the exaction of a license, the fact of 

alienage may justify a denial of the privilege. 

But even then, there must be some relation between the exclusion of the alien and the protection of the public welfare. People v. Crane, 

supra, 214 N.Y. at page 169, 108 N.E. 427. 

Classification as between citizens ,and aliens Is 

permissible, but the classification must have some 

reasonable basis In the welfare of the community. 

Miller v. City of Niagara Falls, 207 App.Dlv. 798, 

202 N.Y.S. 549; Magnanl V, 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 no way Injurious 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. To hold 

that he is not entitled to practice this calling, because not a full citizen of the United 

States, is to deny to him rights which we think 

are preserved by the fourteenth amendment.’ 

Templar v. State Board of Examiners of Barbers, 

131 Mlch. 254, 258, go N.W. 1058, 1060, 100 Am. 

St.Eep. 610. The reasoning of that case Is 

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Mrs. Marjorie Taber Ogle, page Li M-447 

peculiarly applicable to that of the petitioner 

Larsen-Bak. Moreover, clear evidence of the 

fact that there Is no relation here between 

the exclusion of an alien and the public welfare, is to be found in the recent enactment 

by the City Council New York City Local Laws 

No. 52-1941, effective June 30, 1941. That 

law lifted the restriction of the so-called 

Lyons Residence Law for a limited time so as 

to permit the employment of alien declarant 

doctors, internes and nurses in city hospitals. 

If the public interest furnishes no reason for 

their exclusion from public .servlce, it cannot 

furnish such a reason for the exclusion of a 

declarant massage sperator who seeks to pursue 

a private calling. 

The only Texas authority we find In support of the above 

position Is the case of Poon v. Miller, 234 S.W. 573 (Tex.Civ. 

App. 1921, no writ), in which case the court cited with approval 

the case of Templar v. Board of Examiners, 90 N.W. 1058 (Mich. 

Sup. 1902), which h Id th t a statute th t denied the right to 

a certificate as a &.censid barber to an; alien was unconstltutlonal under the provisions of the Fourteenth Amendment. 

While aliens are not entitled to all of the privileges 

of citizens, we have found no authority to support the denial 

of the right to take the examination for a licensed vocational 

nurse, and upon making a 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 made a 

declaration of Intention of becoming a citizen. Therefore, 

we answer the question presented In the affirmative. 

SUMMARY 

The Board of Vocational Nurse Examiners may 

issue a license to an alien, lawfully in the United 

States, who possess all of the other qualifications 

set forth in Art. 4528c, Sec. 5(a), V.C.S., and who 

has successfully passed the required examination, 

even though such person has not made a declaration 

of intention of becoming a citizen. 

ey General of Texas 

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Mrs. Marjorie Taber Ogle, page 5 

Prepared by Gordon C. Cass 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Sam L. Jones 

Phil Warner 

James Quick 

Jack Sparks 

HAWTHORNE PHILLIPS 

Executive Assistant 

W. V. GEPPERT 

Staff Legal Assistant 

M-447 

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