Enough is Enough: Texas Board of Nursing Pursuit of Licensees Following Criminal Acquittal

 

Recently I have represented several nurses before the Texas Board of Nursing who were being pursued by Board Staff for allegations for which they had already been acquitted by the criminal justice system. As one would expect, this quasi-double jeopardy is extremely frustrating to the nurse. Despite already having hired a criminal lawyer and clearing their name in criminal court, they must now hire a license defense attorney to do the same thing before the Board of Nursing.

 

The most recent example, involved a case where the nurse had been accused of an inappropriate touching by a ten year old girl. The girl claimed that she had awaken at a sleep over at the client’s house to discover the nurse touching her; however, there were several inconsistencies with the girl’s testimony and it later came out that she was friends with another young girl who had made the exact same allegation (down to every detail) against my client several years prior but had subsequently admitted to her mother that she had made it up.

 

At the close of the nurse’s criminal trial, the jury returned a unanimous verdict of not guilty. Moreover, Child Protective Services had conducted their own investigation into the matter and determined that nothing had occurred. Yet, despite his acquittal and the negative finding by Child Protective Services, the Texas Board of Nursing decided to pursue their own disciplinary action against my client, seeking the revocation of his nursing license.

 

Thankfully, my firm was able to enforce the expunction order which had previously been entered by the criminal court to prevent the Board from using second-hand records from that trial to prove their case. Instead, the Board of Nursing was forced to bring the girl to testify in person at a hearing at the State Office of Administrative Hearings. Based on conflicting testimony from our witnesses and several discrepancies between the girl’s original outcry and her testimony at the hearing, the Administrative Law Judge concluded that the Board of Nursing had not met their burden of proof and accordingly entered an opinion favorable to the nurse.

 

I understand that the Board has a mission to protect the public from bad nurses; nevertheless, at some point one has to think that enough is enough. A person should only have to clear their name so many times before it is reasonable for the Board to think twice about wasting state money to retry a licensee for the same conduct.

 

The underlying lesson is that simply because you received a not guilty verdict in criminal court or the District Attorney decided not to prosecute, you are not shielded from a licensure action by the Texas Board of Nursing. They frequently subject a nurse licensee to yet another legal action where they are forced to again clear their name or face severe restrictions on, or even termination, of their livelihood. If you are facing such a situation with the Texas Board of Nursing, I highly recommend that you contact a seasoned administrative attorney with experience before the Texas Board of Nursing and the State Office of Administrative Hearings as otherwise you could be risking your license.

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.