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# The Attorne,y General of Texas

JIM MATTOX Attorney General Au~;u.st 23. 1985

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475-2501 Telex 9101674-1367 Telecopier 512/475-0266

714 Jackson, Suite 700 Dallas, TX. 75202.4506 214/742-6944

4624 Alberta Ave., Suite 160 El Paso. TX. 799052793 9151533.3464

1001 Texas, Suite 700 Houston, TX. 77002-3111 7131223.5686 Ms. Joyce A. Hammer ExecutiveDirector Board of Vocational Nurse Examiners 1300EastAnderson Lane Building C, Suite 285 Austin, Texas 18752 OpinionNo. ~~-344
Re: Meaning of It

approved course of not less than 12 months" for purposes of the Licensed VocationalNurse Act, article 4528~. V.T.C.S. Dear Ms. Hammer: You have reqwsted our assistance to clarify rhe meaning of certain language in theLicensedVocationalNurse Act, article 4528~. V.T.C.S. Specifica3.3y, you ask whether subsection 6(a) of the act, providing that an applicant for the licensingexaminarionadministered by the Board of Vocational Nurse Examiners submit proof that the applicant "has compteted an approved course of nor less than twelve (12) months in an itpprovedschool for educating vocational nurses," literally requires t:hatthe course be of at least 12 months in duration. 606 Broadway, Suite 312 Lubbock, TX. 79401.3479 Your concerns t&out the 12-monthminimum educational requirement 6061747-5236 of article 4528~ stem from what you describe as the trend in most states (includingTwas) to remove vocational nurse training from the
4309 N. Tenth. Suite B hospital setting to the academic setting. In light of this trend,you McAllen, TX. 78501-1685 suggest that these programs cannotbe literallydescribed as being 12 512,662~4547 months in duration.

200 Main Plaza, Suite 400 The guiding ru.e of sratutory construcrion is to give effect to San Antonio, TX. 76205.2797 the intention of t&r legislature. City of Sherman v. Public Utilire 51212254191 Commission of Texas, 643 S.W.2d 681; 684 (Tex. 1983). In general, statutory time prov:isionsare construed strictly, for the simple reason that such requirementsare clear and unambiguous and therefore An Equal Opportunity/ Affirmative Action EvploYeleave little doubt o:Ethe legislature's intent. See, e.g., Attorney General Opinions .X4,-:!78 (1984) (srawte requiring five years' active professional experience ,"immediatelypreceding" license application means five years nearest to the date of filing of the application); JM-107 (1983) (a j&i1 sentence of 72 hours requires prisoner to be releasedupon expirationof thatperiod or as close to that time as is practicable); H-840 (1976) (former section 4(c) of article 4528c, requiring director of training to "have had at least five (5) years

p. 1567Ms. JoyceA. Hammer - Page 2 (JM-344)

experience in teachingnursjng
. . ."must be applied and enforced as it reads regardlessof the "justice of its effect"). Article 4528~was substantiallyamended in 1981. Acts 1981,67th Leg., ch. 787, at 2990. Subsection 6(a)was amended to eliminate the need for an applicant for examination to submit proof of certain personal qualifications -- ;~a, age, character,physical and mental condition, and citizenship. See S.J. of Tex., 67th Leg., 2238, 2244 (1981). The language requkix proof of the applicant's successful completion of an approved course in vocational nursing was only slightly modified; however, the 12-month minimum course requirement was left intact. Id. Sectj.ans 6 and 7 were amended once more during the last legislati~session. House Bill No. 823. Acts 1985, 69th Leg., ch. d at (notyet published). Once again, the 12-month durational require= was preserved. Id. Consequently,because the legislatureispresumed to be acquaintedwith conditionsaffectingthe subject matter- of legislat,lon,Brown v. Memorial Villages Water Au;oH-;y, ',"',

",.;.2d 453 ('Iex.

Civ.App. - Houston 114thDist.1 1962,

. . . .we must nresume that the lenislature intended the 12-monthprovision to remaiiin effect, notwithstanding the trend to conductvocational nurse trrtiningin the classroom rather than in the hospital. Article 4528~ clearly prescribes the minimum duration of an approved course in vocatioral nursing. The board may not waive the 12-month minimum educatiolull. requirement, for it is clear that an administrative agency may not waive statutory requirements in the licensingprocess. Attornql General Opinion MW-131 (1980). Furthermore, the board may not create au exception for any institution, either by rule or agreement, in any circumstance not expressly authorizedby article 4528~. SeeV.T.C.S. art. 4528c, 506(b), 7. See also Boss International, Inc.7 General Portland, Inc., 670 S.Wx m(Tex. App. - Austin 1981;no writ) (wherethe legislaturestatesa specific exception to a Matute, legislative intent that statute shouldapply in all casesnot excepted is clear). Accordingly, subsection 6(a) must be administered as it reads regardless of the "justice of its effect." Attorney General Opinion H-840 (1976). Furthermore,because we believe the wording of article 4528~. subsection 6(a) is cl.earand unambiguous, it must be given a literal interpretation and any defects or deficiencies must be corrected by the legislatwe and not this office. See Armstrong v. Harris County, 669 S.W.2d Zs23(Tex.App. - Houston [G Dist.] 1983, writ ref'dn.r.e.). .

p. 1568Ms. JoyceA. Rammer - Page 3 (JM-344)

SUMMARY The 12-month alnimum educational requirement of article 4528c, subsection 6(a), requires that an approved course i.n vocationalnursing amount to at least 12months of instruction.


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Attorney General of Texas TOM GREEN FirstAssistantAttorney Genwal
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral ROBERT GRAT SpecialAssistantAttorneyGeneral RICK GILPIN Chairman,Opinion Committee Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl SusanGarrison Tony Guillory JimMoellinger JenniferRiggs Nancy Sutton SarahWoelk

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