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Recently, I have represented a pharmacist whose reapplication for his controlled substances registration was denied by the Texas Department of Public Safety when he voluntarily acknowledged that he had previously been convicted of a felony. He was one of several defendants on trial for the same set of criminal transactions and his own share of the guilt was slight. It was essentially a case of bad judgment and naivety on the part of my client. He had entered into a business relationship with the wrong people and was now paying for their misdeeds. The Federal Drug Enforcement Agency had essentially agreed and declined to take action against his controlled substances registration. In addition the Texas Pharmacy Board has so far chosen not to seek any disciplinary sanction.

 

In contrast, the Texas Department of Public Safety pursuant to the Texas Controlled Substances Act § 481.063(e)(2)(A) summarily denied his reapplication on the basis of his voluntary admission of his felony conviction. This section of the Health and Safety Code provides for such denial when an applicant has been convicted or placed on community supervision or probation for a felony. Fortunately, the Texas Legislature has also inserted into this chapter a provision allowing the Director of the DPS to probate a denial under § 481.063(e)(2)(A) upon a showing of good cause. The Act and the Department of Public Safety’s own administrative rules also generally allow an applicant to request a hearing wherein they may present evidence and argument in their favor.

 

As a hearing would almost certainly be necessary to present evidence establishing good cause for a probated order, I requested one as part of my client’s response to the DPS’s decision to deny his reapplication. In reply, the DPS sent a letter reiterating their denial and pointing to § 481.063(h). This Section holds that in the case of a denial based on a felony conviction, the provisions of the Texas Administrative Procedure Act do not apply. This is significant in that this bars access to the normal administrative process, most importantly, a licensee’s right to a full evidentiary hearing before an Administrative Law Judge.Continue Reading Department of Public Safety Arguably Denies Due Process

In response to mounting criticism from the public and medical community, the Texas Medical Board has adopted a new fast-track procedure available for certain violations of the Medical Practice Act and Board Rules. The new system bypasses the standard procedure where a physician would be investigated for 180 days followed by another potential 180…

Effective September 1, 2008, a passing grade on the Nursing Jurisprudence Exam will be required by the Texas Board of Nursing for of all applicants for initial licensure. Under the terms of a recent amendment to Board Rule § 217.17, initial licensure applicants will be tested regarding their knowledge of:

"board statutes, rules, position…

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.Continue Reading Serious Felony Offesnes & Discipline by the Texas Board of Nursing

Recently we have had a number of physician clients in need of assistance from a family law attorney in Austin.  We have recommended Tim Whitten, PC.  Tim is a Board Certified Family Law Attorney who handles divorce matters, child custody cases, child support modifications and collaborative law as well as adoptions.  Tim’s office is…

Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee.

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…