March 2, 1955

Mr. M.B. Morgan Commissioner Bureau of Labor Statistics Capitol Station Austin 11, Texas Opinion No. S-153 Re: Applicability of the Private Employment Agency Law, Article 5221a-6, V.C.S., to avoluntary associaDear Mr. Morgan: tion of undergraduate andvocational nurses. Your request for anopinion relates to agroup of undergraduate and licensed vocational nurses whohave organized avoluntary association and set upanon-profit nurses registry to which they paymonthly dues or assessments to pay the registrar's salary and Incidental expenses of the registry. It has been reported to your office that the association registrar makes placements for the member nurses by contacting hospitals and offering to supply nurses whenthey are needed. The nurse is usually engaged by the hospital andpaid by the patient for her services sIn view of the above facts you ask these questions which weparaphrase as follows:

1. Would the practice of solicitation or advertisement either for members for the association or for employment for the members of such association makethe association subject to the Private Employment Agency Law?

2. If the above question is answered in the negative, to what extent maysuch association go in the solicitation ofmembership as well as soliciting emplogment for the members of the association through hospitals and physicians without being in violation of the Private Rmployment Agency Law. Would such registrar beprohibited from recommending to the various hospitals that they use the service of the registry?Mr. M. B. Morgan, page 2 (S-153)

The sedtions of the Private Employment Agency Law, Article 5221a-6, Vernon’s Civil Statutes, pertaining to your questions are:

“Section 1, (e) ‘Private Etnployment Agent’ means anyperson in this State whofor afee or without afee offers or attempts to procure employment for employees.

. .”

“Section 2.

. . . Theprovisions of this Act shall not apply

. . . to anynurses’ organlzation operated without profit whenconducted byregistered nurses for the enrollment of its professional members only for the purpose of proviSflng professional service to the public;

. . .The queEition which arises Is whether this association is within the exemption set out in Section 2above. In Attorne General’s opinions numbered O-6879 (1945) and O-7369 (19 6)

g this office passed onthe question of membership fees charged by anurses organization. In O-7369 it is stated:

“The facts indicate that agroup of undergraduate and practical nurses are seeking to form aVoluntaFg association andhire 8person to keep arecord of their employment and assess themselves asufficient amount per month to pay the salary of the person so employed, andall other Incidental expenses. It is the opinion of this department that such voluntary organization does not comewithin the definition of anemployment or labor agent.

. .” These opinions were rendered under Section 2of Article 5221a-4, :.C.S., which provided for the exemption in these words:

. . . the provisions of said Act shall not apply

. . . to anynurses’ organizations operated not for nroflt, to be conducted by recognized professional registered nurses for the enrollment of its professional members only for the purpose of providing professional service to the public.’Mr. M. B. Morgan, page 3 (S-153)

Said section wasrepealed andr.eenacted by Section 2of Article 5221a-6 ~above. The only difference was the omission of the words "recognized professional" from the current act. Thus under the facts given andIn accord with our prior opinions wemust hold that this association would bewithin the exception given in Section 2of the Act. Having placed this Association within the exception given in Section 2, weturn to your first question which is that whenthere has been anovert act of solicitation of members or anattempt to procure employment for the members of the Association is the Association within the exception? Once an organization has met the tests of profit and control, which were the basis of opinions O-5424, O6879, and O-7369, the fact that the modus operandi of the organization as to procurement of employment maybe similar to organizations operating for profit would not change the basic structure of the organization nor the reason for allowing such exception. The Legislature stated In the Article in question, *for the purpose of providing professional services to the public,* which would reasonably contemplate somekind of advertisement or active campaign to makehospitals andphysicians as well as the public aware of the professional services which can be rendered by the nurses.

It Is our opinion that your first question should be answered negatively. Asto your second question which deals with the extent of such solicitation, it is our opinion that this would be asubject to be governed by the ethics of the societies of which these nurses are members, SUMMARY

Solicitation of members andemployment by anassociation of undergraduate andlicensed vocations1 nurses does not remove such organization. from the exception provided in Section 2 of Article 5221a-6a, V.C.S.Mr. M.B. Morgan, page 4 (S-153)

The extentto; which such-prganlfatio? may goto procure employment for Its memDers 18CO be governed by'the societies in which said nurses are registered. APPROVEDr J.~Fred dimes State Affairs Division J. A. Amis, Jr. Reviewer John Reevea Reviewer Robert 5. Trottl First Assistant Yours very truly, JOHNBENSHEPPERD Attorney General

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BY Aesiatant