Texas Register, Volume 38, Number 27, Pages 4243-4444, July 5, 2013 Page: 4,336
4243-4444 p. ; 28 cm.View a full description of this periodical.
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affect the Board's Disciplinary Guidelines for Criminal Conduct
(Guidelines), which are incorporated by reference in adopted
213.29(j). The amendments to 213.29(j) were published in
the May 17, 2013, issue of the Texas Register (38 TexReg
2953). The Guidelines were also published in the May 17,
2013, issue of the Texas Register (38 TexReg 3152). The
amendments to 213.29(j) are adopted with changes, as set out
herein. The Guidelines are adopted without changes and will
not be republished.
Reasoned Justification. The amendments are adopted under
the authority of the Occupations Code 301.151, 301.1545,
301.452, 301.4521, 301.453, 301.4531, and 301.4535; and the
Occupations Code Chapter 53, particularly 53.025(a), which re-
quires licensing agencies to issue guidelines that state the rea-
sons that a particular crime is considered to relate to the practice
of the licensing agency and any other criterion that affects the
decision of the licensing agency when considering the effects of
the crime on an individual's licensure status.
The Board formally proposed amendments to 213.29(j) in the
May 17, 2013, issue of the Texas Register (38 TexReg 2953).
The Board has made minor changes to the proposed text as
adopted in order to more specifically reference the particular
issue of the Texas Register in which the Guidelines were pub-
lished. As such, adopted 213.29(j) includes a reference to the
publication date and page number of the specific issue of the
Texas Register in which the Guidelines were published. None
of these changes, however, materially alters issues raised in the
proposal, introduces new subject matter, or affects persons other
than those previously on notice. Further, no changes were made
to the Guidelines, and the Guidelines are adopted as they ap-
peared in the May 17, 2013, issue of the Texas Register (38
TexReg 3152).
Background
The Guidelines were originally approved by the Board and
published in the Texas Register on March 9, 2007 (32 TexReg
1409). The Board received no public comments on the Guide-
lines, and, on July 2, 2008, adopted the Guidelines by reference
in 213.29(j)(2) (33 TexReg 5007). The Guidelines have not
undergone formal review and amendment since their original
publication date in 2007. As a result, at its April 2012 meeting,
the Board issued a charge to the Eligibility and Disciplinary
Advisory Committee (Committee) to review and make recom-
mendations regarding the Guidelines. In particular, the Board
charged the Committee with considering: (i) whether portions
of the Guidelines were outdated/obsolete; (ii) whether the
Guidelines should establish a minimally acceptable sanction for
each criminal offense; (iii) whether the recommended range of
sanctions in the Guidelines were appropriate; and (iv) the type
and/or amount of mitigating evidence necessary to support a
more lenient sanction under the Guidelines.
The Committee met on November 30, 2012; February 8, 2013;
and March 25, 2013 to review the Guidelines. Following a
detailed review and discussion of the Guidelines, the Committee
voted unanimously to recommend several changes to the Board.
The Committee's recommended changes to the Guidelines,
along with minor editorial/typographical changes identified by
Board Staff, were presented to the Board at its April 2013 meet-
ing. The Board voted to adopt the Guidelines, as amended, and
propose amendments to 213.29(j) to incorporate the adopted
changes into rule.Many of the changes to the Guidelines are editorial and or-
ganizational in nature. However, some of the changes are
more substantive. First, thirty-five new criminal offenses have
been added to the Guidelines. These offenses include various
felonies and misdemeanors, as well as crimes that have been
specifically identified by the Texas Legislature in the Occupations
Code 301.4535 as affecting nursing licensure. The additional
crimes include: continuous sexual abuse of young child or
children (301.4535(a)(5)); offenses for which registration as a
sex offender is required under the Code of Criminal Procedure
Chapter 62 (301.4535(a)(16)); aggravated perjury (felony);
bail jumping and failure to appear (felony/misdemeanor);
bribery (felony); burglary of vehicles (felony/misdemeanor);
credit card/debit card abuse (felony); criminal nonsupport
(felony); driving while intoxicated with child passenger (felony);
evading arrest or detention (felony/misdemeanor); failure to
identify (misdemeanor); fraudulent destruction, removal, or
concealment of writing (felony/misdemeanor); fraudulent use
of possession of identifying information (felony); harboring
runaway child (misdemeanor); hindering apprehension or
prosecution (felony/misdemeanor); hindering secured creditors
(felony/misdemeanor); interference with child custody (felony);
intoxication assault (felony); intoxication manslaughter (felony);
misapplication of fiduciary property or property of financial insti-
tution (felony/misdemeanor); obstruction or retaliation (felony);
perjury (misdemeanor); prohibited substances and items in
correctional facility (felony); prohibited weapon (felony/misde-
meanor); public lewdness (misdemeanor); securing execution
of document by deception (felony/misdemeanor); smuggling
of persons (felony); tampering with or fabricating physical evi-
dence (felony/misdemeanor); tampering with witness (felony);
theft of service (felony/misdemeanor); trafficking of persons
(felony); unlawful carrying weapon (felony/misdemeanor); un-
lawful possession of firearm (felony/misdemeanor); unlawful
restraint (misdemeanor); and violation of civil rights of per-
son in custody/improper sexual acts with a person in custody
(felony/misdemeanor).
Pursuant to the Occupations Code Chapters 53 and 301 (Nurs-
ing Practice Act), criminal offenses may affect an individual's
ability to obtain a nursing license (licensure eligibility) and
a nurse's licensure status (licensure discipline). Board Staff
routinely review individuals' criminal history to determine what
effect, if any, a particular offense may have in eligibility and
disciplinary cases. The thirty-five new offenses that were
recommended by the Committee and approved by the Board
are offenses that Board Staff have identified over the last few
years during its review of eligibility and disciplinary files. These
offenses have occurred frequently enough over the last few
years to warrant inclusion in the Guidelines. Further, the Board
has determined that these additional offenses are sufficiently
related to the practice of nursing and are serious enough in
nature to warrant investigation and, possibly, denial of licensure
and/or licensure discipline.
In addition to including these additional crimes in the Guidelines,
corresponding sanction recommendations and explanatory ra-
tionale has been included as well. For example, the felony of-
fense of intoxication manslaughter has been added to the Guide-
lines. As stated in the Guideline's preamble, although the Guide-
lines provide a recommended range of sanctions for each of-
fense, each case is considered on its own merits. As such,
the appropriate sanction in any given case will be determined
upon a consideration of the aggravating and/or mitigating fac-
tors present in that case. For the offense of felony intoxication38 TexReg 4336 July 5, 2013 Texas Register
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Texas. Secretary of State. Texas Register, Volume 38, Number 27, Pages 4243-4444, July 5, 2013, periodical, July 5, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth326801/m1/93/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.