Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10).  A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.  

Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)

Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.   Continue Reading DWI & Nursing License Discipline by the Texas Board of Nurse Examiners