. . 

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 

Executive Director 

Board of Vocational Nurse 

Examiners 

1300 East Anderson Lane 

Building C, Suite 285 

Austin, Texas 18752 

Opinion No. ~~-344 

Re: Meaning of It approved course 

of not less than 12 months" for 

purposes of the Licensed Vocational Nurse Act, article 4528~. 

V.T.C.S. 

Dear Ms. Hammer: 

You have reqwsted our assistance to clarify rhe meaning of 

certain language in the Licensed Vocational Nurse Act, article 4528~. 

V.T.C.S. Specifica3.3y, you ask whether subsection 6(a) of the act, 

providing that an applicant for the licensing examinarion administered 

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 itpproved school for educating vocational nurses," 

literally requires t:hat the course be of at least 12 months in 

duration. 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 Your concerns t&out the 12-month minimum educational requirement 

6061747-5236 of article 4528~ stem from what you describe as the trend in most 

states (including Twas) 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 cannot be literally described 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:isions are construed strictly, for the simple 

reason that such requirements are clear and unambiguous and therefore 

An Equal Opportunity/ 

Affirmative Action EvploYeleave little doubt o:E the legislature's intent. See, e.g., Attorney 

General Opinions .X4,-:!78 (1984) (srawte requiring five years' active 

professional experience ,"immediately preceding" 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 

released upon expiration of that period 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. 1567 
Ms. Joyce A. Hammer - Page 2 (JM-344) 

experience in teaching nursjng . . ." must be applied and enforced as 

it reads regardless of the "justice of its effect"). 

Article 4528~ was substantially amended 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 (not yet published). Once again, the 12-month 

durational require= was preserved. Id. Consequently, because the 

legislature is presumed to be acquaintedwith conditions affecting the 

subject matter- of legislat,lon, Brown v. Memorial Villages Water 

Au;oH-;y, ',"', ",.;.2d 453 ('Iex. Civ. App. - Houston 114th Dist.1 1962, 

. . . . we must nresume that the lenislature intended the 

12-month provision to remaiiin effect, notwithstanding the trend to 

conduct vocational nurse trrtining in 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 

licensing process. 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 

authorized by article 4528~. See V.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) (where the legislature states a 

specific exception to a Matute, legislative intent that statute 

should apply in all cases not 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.ear and 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'd n.r.e.). 

. 

p. 1568 
Ms. Joyce A. 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 vocational nursing amount to 

at least 12 months of instruction. 

gg* wAttorney General of Texas 

TOM GREEN 

First Assistant Attorney Genwal 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

ROBERT GRAT 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1569