Could a nurse licensed as both an RN and an LVN serve on the Texas Board of Vocational Nurse Examiners?

Texas AG Opinion JM-375: Dual RN-LVN Board Ineligibility

Plain-English summary

The Board of Vocational Nurse Examiners asked whether a recently confirmed appointee could serve when she held both a registered-nurse license and a licensed-vocational-nurse license. The Attorney General concluded that the statute's plain terms made her ineligible. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Article 4528c assigned seven board seats to licensed vocational nurses but required those members not to be registered professional nurses. It assigned one seat to a registered nurse working in vocational-nursing education but required that member not to be a licensed vocational nurse. The physician and hospital-administrator categories also excluded both licenses, and the public-member category excluded a person licensed by a health-care occupational regulator. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Because every relevant category excluded the appointee's other license or professional status, a dual RN-LVN licensee could not serve on the board. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.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

Could the person take one of the seven LVN seats?

No. Section 5(a) required the seven vocational-nurse members not to be registered professional nurses. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Could the person take the registered-nurse seat instead?

No. The registered-nurse member was required not to be a licensed vocational nurse. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Did it matter that the appointment had already been confirmed?

The opinion described the appointment as recently confirmed but still concluded that the person was not eligible to serve under the statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

How did the Attorney General interpret the statute?

The opinion applied the words in their plain sense, citing the rule that courts should express the lawmakers' will without a forced or strained reading. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Background and statutory framework

Section 5(a) created a twelve-member board: seven licensed vocational nurses, one registered nurse involved in vocational-nursing education, one physician, one hospital administrator, and two public members. Each category included disqualifications intended to keep the professional roles distinct. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Citations and references

• Licensed Vocational Nurses Act, V.T.C.S. art. 4528c, §5(a)
• Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0375
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0375.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

November 7, 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-375

Re: Whether an individual who is both a registered nurse and a licensed vocational nurse is eligible for appointment to the Board of Vocational Nurse Examiners

Dear Ms. Hammer:

Section 5(a) of article 4528c, V.T.C.S., the Licensed Vocational Nurses Act, provides the following:

Sec. 5. (a) There is hereby created a board to be known as the Board of Vocational Nurse Examiners, consisting of twelve (12) members to be appointed by the Governor and confirmed by the State Senate. Appointments to the Board shall be made without regard to the race, creed, sex, religion, or national origin of the appointees.

Seven (7) members of the Board must be Licensed Vocational Nurses who are graduates of approved schools of vocational nursing, who have been actively engaged in the practice of vocational nursing for five (5) years immediately preceding their appointments, and who are not licensed physicians, registered professional nurses, or hospital administrators.

One (1) member of the Board must be a Registered Nurse licensed by the Board of Nurse Examiners who is actively engaged in a teaching, administrative, or supervisory capacity in a vocational nursing educational program and who is not a licensed physician, hospital administrator, or licensed vocational nurse.

One (1) member of the Board must be a physician licensed by the Texas State Board of Medical Examiners who has been actively engaged in the practice of medicine for five (5) years immediately preceding appointment and who is not a hospital administrator, registered professional nurse, or licensed vocational nurse.

One (1) member of the Board must be a hospital administrator who has been actively engaged in hospital administration for a period of five (5) years and who is not a licensed physician, registered professional nurse, or licensed vocational nurse.

Two (2) members of the Board must be representatives of the general public. A person is not eligible for appointment as a public member if the person or the person's spouse is licensed by an occupational regulatory agency in the field of health care or is employed by, participates in the management of, or has, other than as a consumer, a financial interest in a business entity or other organization that provides health-care services or that sells, manufactures, or distributes health-care supplies or equipment. (Emphasis added).

You inform us that a recently confirmed appointment to the Board of Vocational Nurse Examiners is both a licensed vocational nurse and a registered nurse. You ask whether she is eligible to serve on the board. We conclude that, by the clear terms of the statute, she is not.

We are required to construe a statute in such a way as to express "only the will of the makers of the law, not forced or strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain." Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968). Subsection 5(a) of article 4528c, V.T.C.S., clearly prohibits the appointment to the Board of Vocational Nurse Examiners of any member who is both a licensed vocational nurse and a registered nurse. Accordingly, we conclude that such an appointee is not eligible to serve.

SUMMARY

Section 5(a) of article 4528c, V.T.C.S., the Licensed Vocational Nurses Act, prohibits the appointment to the Board of Vocational Nurse Examiners of any member who is both a licensed vocational nurse and a registered nurse.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood