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:

  1. One misdemeanor DWI/DUI (not on probation)
  2. One misdemeanor offense of possession of marijuana
  3. Up to two misdemeanor theft by check
  4. One misdemeanor domestic/family violence
  5. One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
  6. One misdemeanor shop lifting
  7. One misdemeanor criminal mischief
  8. Misdemeanor graffiti
  9. One misdemeanor criminal trespass
  10. One misdemeanor disorderly conduct
  11. Up to two misdemeanor Public Intoxication
  12. Up to two misdemeanor Pan Handling
  13. Misdemeanor “loud noise” violations
  14. One misdemeanor Reckless Driving
  15. Misdemeanor minor in possession of tobacco
  16. One misdemeanor selling alcohol to a minor
  17. Failure to appear
  18. 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.

Name Change for the BNE to The Texas Board of Nursing

The Texas Board of Nurse Examiners (BNE) became the Texas Board of Nursing (BON) on September 1, 2007 pursuant to House Bill 2426 otherwise known as the Sunset Bill for the Board of Nurse Examiners.

This should have no effect on the public other than some confusion as to why the agency continues to use its old stationary and have not updated their website. Arguably they will use the old stationary until it runs out and when the State gets around to it I imagine the website will be tweaked to reflect the new agency title –Budget Constraints.

Email addresses for all Board Staff have changed to the  format, but old emails should be active as well for at least another month. Whatever are they going to do about business cards for all of the employees? Let’s hope they don’t wait until they run out to order new ones. 

Unfortunately, the name change means no relief for nurses involved in the disciplinary process or for those seeking declaratory orders. Board Staff, Board Policies, The Nursing Practice Act and Board Rules remain –the agency just has a different title.

The Polygraph Test: Just Say No to the BNE

polygraph forensic quandryThe Board of Nurse Examiners for the State of Texas (BNE) evaluates applicant's for RN and LVN licensure per the Nursing Practice Act and the Nursing Board's Rules found in 22 Texas Administrative Code Sec. 217.11  et al.  Per the Nursing Practice Act, Board Staff has the ability to investigate an applicant's character and fitness to practice Nursing based on indications that an applicant may lack the "good professional character" to be a licensed nurse. 

In an effort to weed out poor or marginal applicants Board Staff notifies individuals that due to their criminal, work, mental health or drug use history they must Petition the Board's Executive Director for a Declaratory Order to practice nursing.  Then Board Staff (through the Executive Director) requests that they undergo a forensic psychological evaluation with a polygraph test component.  Although it is not explicitly stated in the request the implication is that a failure to submit to the "illegally requested" tests will result in a denial of the application for a license.

Although not legally authorized, Board Staff requests these evaluations for crimes that are often thirty (30) years old and that in and of themselves do not relate to the practice of nursing.  Moreover,  the forensic evaluation and polygraph tests are often nothing  more than a fishing expedition to determine if a person has done something in their past to render them ineligible.  Oftentimes what is dicovered is then used as the basis for denial even though it is often not legally admissible evidence. The simple truth is JUST Say No to the polygraph and call an attorney. 

You have a right to be heard which is something Board Staff does not tell you when they ask you to undergo the expensive, unauthorized and oftentimes inapproriate and unathorized tests.

Over the last several years I have had Client's asked to submit a Petition for a Declaratory Order for some of the the following reasons:

  • A thirty-two year old plea of no-contest to a felony possession charge that resulted in a deferred adjudication and dismissal.  This Client also had an impeccable military and professional career, yet Board Staff requested him to undergo a Forensic Evaluation and Polygraph test and tried to force him to agree to a two year probationary term;
  • A twenty-five year old arrest and conviction for prostitution;
  • A twenty year old Driving While Intoxicated arrest, plea and probation;
  • Pleas of no contest to crimes that were misdemeanors and unrealted to the practice of nursing that were all over ten years old;
  • Criminal Arrests that resulted in dismissals

In all of these cases we declined the invitation to undergo the forensic / polygraph evaluations and challenged the Staff of the Board of Nurse Examiners by requesting either a hearing on the merits at the State Office of Administrative Hearings or an appearance in front of the Eligibility & Disciplinary Committee.  In each case the applicant was granted an unrestricted license to practice nursing.