Texas Register, Volume 38, Number 27, Pages 4243-4444, July 5, 2013 Page: 4,337
4243-4444 p. ; 28 cm.View a full description of this periodical.
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manslaughter, and depending upon the length of time that has
transpired since the judicial order associated with the offense
was issued, the recommended sanction range includes licensure
denial or revocation, as well as options for licensure discipline.
The remaining additional offenses that have been added to the
Guidelines also include a corresponding recommended range of
sanctions that will include an analysis of the mitigating and/or
aggravating factors unique to each case.
The Guidelines also explain how each of the additional offenses
are related to the practice of nursing. Using the previous ex-
ample, criminal offenses involving alcohol and/or drugs, such as
felony intoxication manslaughter, may indicate that an individ-
ual has a chemical dependency and/or substance abuse issue.
Chemical dependency and/or substance abuse may affect an
individual's professional judgment and ability to practice nursing
with reasonable skill and safety. As such, the Board is concerned
about such conduct, and an individual with this criminal history
may be subject to a Board investigation to determine what effect,
if any, the offense will have on the individual's licensure status.
The remaining additional offenses that have been added to the
Guidelines also include an explanation of how the offense re-
lates to the practice of nursing.
Finally, the Guidelines indicate when a particular evaluation may
be required and/or requested by the Board. Pursuant to the Oc-
cupations Code 301.4521, the Board is authorized to require
certain physical and/or psychological evaluations of its appli-
cants and licensees. In the present example regarding the felony
offense of intoxication manslaughter, the Guidelines specify that
a chemical dependency evaluation may be required to assist the
Board in determining the effect of the individual's criminal history
on his/her licensure status. Although 301.4521 authorizes the
Board to require and/or request physical and psychological eval-
uations in situations where the Board has reason to believe that
an individual may be unable to practice nursing with reasonable
skill and safety, additional notations have been added through-
out the Guidelines to indicate the types of evaluations that the
Board may request/require in matters involving a particular crim-
inal offense. Although this additional information does not limit
the Board's ability to require/request additional types of evalua-
tions in a particular case, it is intended to provide notice to indi-
viduals that an evaluation may be required and/or requested in
order to assist the Board in determining whether the individual is
fit to practice nursing safely and the potential effect the particular
criminal offense may have on the individual's licensure status.
The Committee also felt it was important for the Board to reiterate
the purpose of the Guidelines and to emphasize their limitations.
To that end, pages 1 - 3 of the Guidelines have been amended
to include additional information regarding the application of the
Guidelines. The Guidelines are intended to inform applicants,
licensees, and the general public of the potential effect a par-
ticular criminal offense may have on nurse licensure. As such,
the Guidelines are based upon criminal offenses that have al-
ready been addressed and/or adjudicated by the penal system.
The Board will not re-litigate the underlying facts of the criminal
matter. Therefore, the amended language makes clear that the
Board will consider the potential effect of a criminal offense upon
an individual's licensure status as that offense has been previ-
ously determined by the penal system.
For certain offense, the Committee also recommended includ-
ing additional information in the last column of the Guidelines to
better explain the offense's connection to the practice of nursing.
For example, for the offenses of "arson" and "cruelty to animals,"information has been added to the last column of the Guidelines
to emphasize that individuals who commit these types of crimi-
nal offenses have been linked with underlying psychopathology
and/or may be more likely to engage in violent/harmful behav-
iors toward humans. This additional information clarifies why the
Board may be concerned about an individual who has commit-
ted one of these offenses. "Aggravated perjury" and all of the
prostitution offenses also include additional language better ex-
plaining their connection to the practice of nursing.
The Committee also reviewed the recommended range of sanc-
tion for each offense listed in the Guidelines. Although the Com-
mittee felt that the recommended ranges of sanctions were ap-
propriate for the majority of the offenses, the Committee rec-
ommended that offenses primarily related to the use of drugs
and/or alcohol be amended to include less severe sanctions if
the individual demonstrates compliance with a treatment pro-
gram and evidence of ongoing sobriety. Therefore, the Guide-
lines have been amended to include a broader range of recom-
mended sanctions for these types of offenses. In particular, the
amended range of sanctions for these types of offenses includes
participation in a peer assistance program, as well as licensure
suspension, which can either be enforced or probated, depend-
ing upon whether an individual is able to demonstrate treatment
and twelve consecutive months of verifiable sobriety. These ad-
ditional options are consistent with the Board's adopted Eligibil-
ity and Disciplinary Sanctions for Nurses with Substance Abuse,
Misuse, Substance Dependency, or Other Substance Use Disor-
der, as well as the Board's rules regarding chemical dependency
and substance abuse.
The Guidelines have also been amended to clarify the use of cer-
tain terminology within the Guidelines. In particular, the term "ju-
dicial order" has been amended to include orders of conviction,
regardless of the plea entered, deferred adjudications, regard-
less of the plea entered, and deferred dispositions, including, but
not limited to, pre-trial diversion agreements and deferred pros-
ecutions. Further, the term "probation" has been amended to in-
clude community supervision, probation, parole, and any other
requirement that results from, or is related to, a criminal disposi-
tion of any form, including deferred dispositions, such as pre-
trial diversion agreements and deferred prosecutions. These
amendments are intended to clarify the existing intent of the
Guidelines and are consistent with the Board's authority to in-
vestigate and take licensure action based upon convictions and
deferred dispositions, as set forth in the Nursing Practice Act,
particularly 301.452(b)(3).
Finally, the Guidelines have been reorganized based upon rec-
ommendations by the Committee. Pages 4 - 14 of the Guide-
lines contain offenses that have been specifically identified by
the Texas Legislature in the Occupations Code 301.4535 as
revocable offenses and/or potential bars to licensure. Pursuant
to the terms of 301.4535, an individual who has committed one
of the crimes enumerated in 301.4535 shall not be eligible to
hold a nursing license until at least five years have passed from
the date the individual successfully completes and is dismissed
from community supervision or parole. The remaining pages
of the Guidelines are arranged alphabetically, to include both
felony and misdemeanor offenses. If an offense can be classi-
fied under the penal code as either a felony or misdemeanor, the
Guidelines recognize this distinction and include a correspond-
ing range of recommended sanctions for the felony offense and
the misdemeanor offense. The Committee also recommended
including the definition of each crime in the first column of the
Guidelines instead of the last column of the Guidelines. As such,ADOPTED RULES July 5, 2013 38 TexReg 4337
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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/m1/94/: accessed April 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.