Serious Felony Offesnes & Discipline by the Texas Board of Nursing
All nurses who have been convicted or pled guilty or no contest to certain felony offenses should be aware that under a recent addition to the Nursing Practice Act, the Texas Nursing Board holds expanded authority to impose tough sanctions. Already a serious matter, an initial conviction for these offenses now carries additional consequences including mandatory revocation under certain conditions.
Chapter 301.4535 of the Texas Nursing Practice Act states that the Texas Board of Nursing must suspend or refuse to initially license any nurse / applicant who has been initially convicted of:
- Murder under § 19.02, capital murder under § 19.03, or manslaughter under § 19.04 of the Texas Penal Code;
- Kidnapping or unlawful restraint under § 20 of the Penal Code, when the offense was punished as a felony or state jail felony;
- Sexual Assault under § 22.011 of the Penal Code;
- Aggravated Sexual Assault under § 22.021
- Continuous sexual abuse of a young child or children under § 21.02, or indecency with a child under § 21.11 of the Penal Code;
- Aggravated Assault under Section 22.021 of the Penal Code:
- Intentionally, knowingly, or recklessly injuring a child, elderly individual, or disabled individual under § 22.04 of the Penal Code;
- Intentionally, knowingly, or recklessly abandoning or endangering a child under § 22.041 of the Penal Code;
- Aiding suicide under § 22.08 when the offense was punished as a state jail felony;
- An offense under § 25.07 of the Penal Code that was punished as a felony;
- An offense under § 25.071 of the Penal Code that was punished as a felony;
- An agreement to abduct a child from custody under § 25.031 of the Penal Code;
- The sale or purchase of a child under § 25.08 of the Penal Code;
- Robbery under § 29.02 of the Penal Code;
- Aggravated Robbery under § 29.03 of the Penal Code;
- An offense for which a defendant is required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure; or
- An offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense listed in this subsection.
Note that the statute’s coverage includes licensees who have been convicted or pled guilty to one of the above offenses and who are then sentenced to deferred adjudication, community supervision, or probation. The basic message of §301.4535 is that the Board must and will automatically suspend an active license or refuse to initially license a nurse who has been initially convicted of one of the above specified offenses.
Over the objections of the Nursing Board, my law firm has successfully argued before the State Office of Administrative Hearings that when read in conjunction with the rest of the Nursing Practice Act, the Board’s own rules, and the Texas Occupations Code, § 301.4535 authorizes the Board to issue a stayed suspension as well as an enforced suspension. The former allows a licensee to continue practicing as a nurse while the latter does not. However, in order to effectively show that they qualify for a stayed order, a nurse will almost certainly need to present evidence and argument at an official hearing as to why, given the circumstances of their case, a stayed suspension would be appropriate. This involves the gathering and presentation of remedial evidence, possibly before an Administrative Law Judge in a trial-like setting. The eye of an experienced attorney is often able to pick out the kinds of beneficial remedial evidence which a layperson will miss. Further, a nurse’s right to such a hearing is contingent on their making a timely request for it. To ensure that you meet this deadline, consultation with an attorney may be advisable.
Another issue nurses who have been convicted of one of the listed offenses should be aware of is of the need to disclose this fact to the Board. Chapter 301.4535(b) holds that the failure of a nurse to disclose their felony conviction to the Board will result in the automatic revocation of their license, or a refusal to grant or renew a license, if the Board later learns that the conviction has been made final and it has not yet been 5 years since the nurse completed the probation or community supervision associated with the offense. Note that this subsection also applies to a plea of guilty or nolo contendre. Thus a failure to report can remove even the possibility of a stayed order.
Self-reporting facts that may lead to a disciplinary action can be a delicate matter, and I urge nurses to seek the advice of an attorney with experience before the Board when considering if and how to make such a disclosure. In the past my firm has represented numerous clients who have followed the mistaken advice of lawyers who are not familiar with the Board’s policies on full-disclosure for initial and renewal license applications. Self-reporting under § 301.4535(b) is all the more potentially hazardous given the serious minimum penalties involved.
The Texas Board of Nursing & Minor Criminal Infractions
For the January 17-18, 2008 meeting of the Texas Board of Nursing (formerly the Texas Board of Nurse Examiners), attorney and general counsel Dusty Johnson presented an informational report on the Board’s policy in regards to minor criminal infractions and licensing. Of particular interest for current and future Texas nurses, the report provides a list of crimes which the Board has deemed to be too minor to warrant an investigation or disciplinary order in connection with a license application or renewal. Following the mandate of Chapter 53 of the Texas Government Code, the BON (BNE) recognizes that there are some forms of criminal conduct which are not sufficiently related to nursing to bring into question the licensee’s competency. Specifically, the listed criminal offenses are compared to the Board’s own Rule 213.28(i) concerning “youthful indiscretions.” Also of note is the finding that the Nursing Board now annually investigates approximately 3000 “positive hits” resulting from the standard FBI criminal background check required of all license applicants.
The criminal offenses considered not to be sufficiently related to the practice of nursing as to warrant an investigation or disciplinary action are:
- One misdemeanor DWI/DUI (not on probation)
- One misdemeanor offense of possession of marijuana
- Up to two misdemeanor theft by check
- One misdemeanor domestic/family violence
- One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
- One misdemeanor shop lifting
- One misdemeanor criminal mischief
- Misdemeanor graffiti
- One misdemeanor criminal trespass
- One misdemeanor disorderly conduct
- Up to two misdemeanor Public Intoxication
- Up to two misdemeanor Pan Handling
- Misdemeanor “loud noise” violations
- One misdemeanor Reckless Driving
- Misdemeanor minor in possession of tobacco
- One misdemeanor selling alcohol to a minor
- Failure to appear
- Vehicular molestation (slashing tires)
It has been my experience that the Board is oftentimes less than faithful to the above stated policy. In fact a discerning reader will note that the exemption of the above offenses is subject to the proviso that the Board does not deem them connected with patient care or the practice of nursing. In reality BNE attorney’s are all too ready to stretch any reading of what relates to the practice of nursing beyond all plausibility in their crusade to discipline nurses. For example, of the above, DWI convictions/deferred adjudication, domestic/family violence, and any form of theft are frequently the basis of Board of Nurse Examiners license investigations and disciplinary action. The Board’s mandate of protecting Texas medical consumers while also ensuring the licensing of much needed new nurses would be better served when the BNE decides to rigorously adhere to these stated policies.
