TMB & BNE's Policy on Deferred Disposition Arguably Unlawful
Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.
Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients. Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.
Expunctions: Disclosure, Discipline & The Texas Board of Nurse Examiners
The Texas Code of Criminal Procedure Chapter 55, Article 55.04 forbids a State Agency from using, questioning an individual about, or in any way releasing information about an arrest that has been expunged pursuant to the provisions of Chapter 55. Moreover, Tex. Code Crim. Proc. § 55.03 provides that the effect of an Expunction Order in a licensure disciplinary proceeding, including the application process, allows for the individual to deny the arrest and the existence of the Order of Expunction. However, the Texas Board of Nurse Examiners (BNE) requires that a licensed nurse or nursing license applicant disclose the existence of the arrest on renewals and initial license applications. It is undetermined if they seek to utilize these arrests against the nurse in a disciplinary proceeding or as a basis for the denial of a license. However, the mere thought that the registration renewals or applications ask about information which if utilized would subject members of Board Staff to criminal sanctions raises a few alarming concerns.
Clearly a great number of people are under the false impression that a dismissal and an order of expunction are one and the same. Perhaps Board Staff is attempting to make sure that the arrest has truly been expunged. Unfortunately, this violates the spirit of the expunction statute as the effect of the expunction allows an individual the right to deny the arrest and the existence of the expunction order.
Moreover, the Board of Nurse Examiners can clearly discipline a nurse’s license or deny an application for failing to completely and fully disclose discoverable criminal history. They can not however, use an expunged offense (or the conduct behind the offense) as a basis for discipline or denial. In the last several years my law firm has expunged several arrests for both Registered Nurses (RN’s) and Licensed Vocational Nurses (LVN’s) and have always noticed the BNE in the Petition for Expunction. They have never contested the expunction or attempted to utilize the information.
If a nurse finds themselves in a situation of uncertainty with respect to whether or not an arrest has been expunged or needs to be disclosed they should contact an attorney who is familiar with both criminal law & the administrative process. If the offense is truly expunged a nurse does not have to prove that it is. However, if it is not then it must be disclosed. Finally, oftentimes DPS and other agencies make mistakes so sometimes truly expunged arrests are not properly destroyed by the reporting entities. It is therefore imperative that a certified copy of the Order of Expunction be retained indefinitely.BNE & Criminal History -Public Image or Public Safety?
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The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas. Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years. The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse's identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated. This has created a marked rise in investigations and disciplinary orders. There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.
To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005. Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old. This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE. Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior. The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history. Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers. Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case? The answer is simple -Public Image.
A recent article published by the Fort Worth Star Telegraph entitled Nursing Board Sets High Standards describes Staff of the Board referring to public opinion concerning nurses. The Executive Director of the Board was quoted as saying: "Americans rate nurses at the top of the list of trusted professionals. And there's plenty of reason why". So is the BNE more concerned about the way they appear to the press and the public or ensuring there are enough quality nurses available to meet the demands of the workforce? Arguably, the stance and the approach suggest that public appearance and image is what is priority.
Recently I have had a flurry of client's who are being invesigated for alcohol related Class C offenses that are over a decade old. Staff of the Board maintains they are worried that the nurse may suffer from alcohol abuse or chemical dependency. What Board Staff fails to look at however, are the last ten years of a perfect working history, with no practice related errors. Board Staff would like to predicate a nurse's future on their remote past without due consideration given to recent history. This absurd infringement was taken to an extreme when a prospective Client was being investigated for an arrest for marijuana possesion that occurred overseas over thirty years ago. What is even more ludicrous is that no conviction ever was imposed and the country is now a war zone. I would like to see staff of the Board issue a subpoena to this war ridden country for a police report that is written in hyroglyphics. BNE lawyers and attorneys may be adequate trial lawyers, but any Administrative Law Judge would be hard pressed to admit such evidence given the numerous evidentiary and admissibility problems inherent with such a report.
