Did Texas's vocational-nurse licensing law require an approved training course to provide a full twelve months of instruction?

Texas AG Opinion JM-344: Twelve-Month Vocational-Nursing Course

Plain-English summary

The Board of Vocational Nurse Examiners asked whether article 4528c, §6(a), literally required a licensing applicant to have completed an approved vocational-nursing course lasting at least twelve months. The question arose as training programs were moving from hospital settings to academic settings that were not always described as twelve months long. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

JM-344 concluded that the statute required at least twelve months of instruction. It treated the duration language as clear and unambiguous and applied the general rule that definite statutory time requirements are construed strictly. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

The opinion noted that the legislature had substantially amended the statute in 1981 and amended §§6 and 7 again in 1985 while preserving the twelve-month requirement. It therefore presumed that the legislature intended the minimum to remain despite changes in how vocational-nursing programs were delivered. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

The board could not waive the twelve-month minimum or create an exception for a school by rule or agreement. JM-344 said any defect or policy problem in the clear statutory requirement had to be corrected by the legislature. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did "an approved course of not less than twelve months" mean?

JM-344 said it meant at least twelve months of vocational-nursing instruction. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Could a school satisfy the law with a shorter academic program containing the same material?

Not under the opinion's reading of the statute. JM-344 treated duration itself as a mandatory licensing qualification, not merely a proxy for course content. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Could the vocational-nurse board waive the minimum?

No. The opinion said an administrative agency could not waive a statutory licensing requirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Could the board make an exception for a particular institution?

No. JM-344 concluded that the board could not create an exception by rule or agreement when article 4528c did not expressly authorize one. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Why did later legislative amendments matter?

The opinion noted that lawmakers changed other parts of the licensing statute in 1981 and 1985 but left the twelve-month requirement intact. It treated that history as further evidence that the duration rule remained deliberate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Background and statutory framework

Section 6(a) required an examination applicant to prove completion of "an approved course of not less than twelve (12) months in an approved school for educating vocational nurses." JM-344 began with the statutory-construction rule from City of Sherman v. Public Utility Commission of Texas that courts seek to give effect to legislative intent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

The opinion compared the question with prior Texas AG opinions that enforced precise time requirements as written, including a five-year experience period, a seventy-two-hour jail sentence, and a five-year nursing-teaching requirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Brown v. Memorial Villages Water Authority supported the presumption that the legislature knew the conditions affecting the subject when it preserved the statutory language. Armstrong v. Harris County supported leaving correction of a clear statute's defects or deficiencies to the legislature rather than the Attorney General. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Citations and references

• V.T.C.S. article 4528c, §§6(a), 6(b), 7
• City of Sherman v. Public Utility Commission of Texas, 643 S.W.2d 681, 684 (Tex. 1983)
• Brown v. Memorial Villages Water Authority, 361 S.W.2d 453 (Tex. Civ. App. - Houston [14th Dist.] 1962, writ ref'd n.r.e.)
• Armstrong v. Harris County, 669 S.W.2d 323 (Tex. App. - Houston 1983, writ ref'd n.r.e.)
• Attorney General Opinions JM-278 (1984), JM-107 (1983), H-840 (1976), and MW-131 (1980)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0344
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0344.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

August 23, 1985

Ms. Joyce A. Hammer
Executive Director
Board of Vocational Nurse Examiners
1300 East Anderson Lane
Building C, Suite 285
Austin, Texas 78752

Opinion No. JM-344

Re: Meaning of "approved course of not less than 12 months" for purposes of the Licensed Vocational Nurse Act, article 4528c, V.T.C.S.

Dear Ms. Hammer:

You have requested our assistance to clarify the meaning of certain language in the Licensed Vocational Nurse Act, article 4528c, V.T.C.S. Specifically, you ask whether subsection 6(a) of the act, providing that an applicant for the licensing examination administered by the Board of Vocational Nurse Examiners submit proof that the applicant "has completed an approved course of not less than twelve (12) months in an approved school for educating vocational nurses," literally requires that the course be of at least 12 months in duration.

Your concerns about the 12-month minimum educational requirement of article 4528c stem from what you describe as the trend in most states (including Texas) to remove vocational nurse training from the hospital setting to the academic setting. In light of this trend, you suggest that these programs cannot be literally described as being 12 months in duration.

The guiding rule of statutory construction is to give effect to the intention of the legislature. City of Sherman v. Public Utility Commission of Texas, 643 S.W.2d 681, 684 (Tex. 1983). In general, statutory time provisions are construed strictly, for the simple reason that such requirements are clear and unambiguous and therefore leave little doubt of the legislature's intent. See, e.g., Attorney General Opinions JM-278 (1984) (statute 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 jail 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 experience in teaching nursing . . ." must be applied and enforced as it reads regardless of the "justice of its effect").

Article 4528c 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, age, character, physical and mental condition, and citizenship. See S.J. of Tex., 67th Leg., 2238, 2244 (1981). The language requiring 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. Sections 6 and 7 were amended once more during the last legislative session. House Bill No. 823, Acts 1985, 69th Leg., ch. ___, at ___ (not yet published). Once again, the 12-month durational requirement was preserved. Id. Consequently, because the legislature is presumed to be acquainted with conditions affecting the subject matter of legislation, Brown v. Memorial Villages Water Authority, 361 S.W.2d 453 (Tex. Civ. App. - Houston [14th Dist.] 1962, writ ref'd n.r.e.), we must presume that the legislature intended the 12-month provision to remain in effect, notwithstanding the trend to conduct vocational nurse training in the classroom rather than in the hospital.

Article 4528c clearly prescribes the minimum duration of an approved course in vocational nursing. The board may not waive the 12-month minimum educational requirement, for it is clear that an administrative agency may not waive statutory requirements in the licensing process. Attorney General Opinion MW-131 (1980). Furthermore, the board may not create an exception for any institution, either by rule or agreement, in any circumstance not expressly authorized by article 4528c. See V.T.C.S. art. 4528c, §§6(b), 7. See also Boss International, Inc. v. General Portland, Inc., 670 S.W.2d ___ (Tex. App. - Austin 1984, no writ) (where the legislature states a specific exception to a statute, 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 4528c, subsection 6(a) is clear and unambiguous, it must be given a literal interpretation and any defects or deficiencies must be corrected by the legislature and not this office. See Armstrong v. Harris County, 669 S.W.2d 323 (Tex. App. - Houston 1983, writ ref'd n.r.e.).

SUMMARY

The 12-month minimum educational requirement of article 4528c, subsection 6(a), requires that an approved course in vocational nursing amount to at least 12 months of instruction.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
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