Case Information
The Attorney General of Texas November 30, 1984 JIM MAlTOX
Attorney General opinion No. m-236 Ms. Joyce A. Hammer
Supreme Court BulldIng Executive Director 0. Box 12548 Re: Whether the Board of Voca- Board of Vocational llurac LitIn, TX. 7871% 254s tional Nurse Examiners may refuse 512l4752501 Rxsminera Telex 9101STC1381 1300 E. Anderson Lane! for re- 3lecopier 51214750266 Building C. Suite ‘281; newal of an expired license when 787%! there Is an unresolved allegation Austin, Texas before the board that the appli- 714 Jackson. Suite 700 -atlas. TX. 75202.4508 cant has been practicing without t4/74249u a current 324 Alberta Ave.. Suite [160] Dear Ma. Hamer: I Paso. TX. 7Bgofc2793
Y15i5.353481
You have requested an opinion about an issue of
that has come beford! the Board of Vocational Nurse Examiners. You the act governing nurses, article 452&z, note 1ex.ss. suit0 700 V.T.C.S., atates in section 10(a) that the board may refuse to issue P, don, TX. 77002~3111 renev a license I’cmr any of the reasons listed therein, including 713122MSSS “unprofessional or dishonorable conduct that, in the opinion of the Board, Is likely to i.ecelve, defraud, or injure the public.” V.T.C.S. SOB Broadway. Suits 312 art. 4528~. $10(a) (911. You further inform us that Rule 231.81 of the Lubbock. TX. 79401.3479 Rules and Regulations, of the Board of Vocational Nurse Examiners, 081747.3238 promulgated under the authority of section 5(g) of article 4528~. defines “unprofessicaal conduct” as tncluding “(6) (E) practicing 4309 N. Tenth. Suite 8 vocational nursing ir, this state without a current Texas license.” 22 IcAllen. TX. 7850%1685 Tex. Admin. Code 1231.81 (1982). Based on these two considerations, 121082.4547 you ask whether the Board of Vocational Nurse Examiners may refuse
accept an application for renewal of an expired vocational 32 Main Ptaza. Suite 4M) license when there before the board that an Antonio. TX. 7S20527i)~ the applicant has blitm practicing as a vocstional nurse without a ~1212254191 current license, In our opinion, the board may not refuse to accept application .n Equal OpportunItyI for renewal of erpir,ed on the ground that an unresolved xffirmative Action EclplOY6- allegation that the chpplicaut has practiced under the expired is pending before thlz board. Such action would be Inconsistent section 8 of article 4528~. V.T.C.S.:
(b) The Board shall notify each licensee about the expirac:f.on date of at least 30 days before date. The *2 Ma. Joyce A. Earner - Page 2 (J+236)
Board by United St;ttes mail shall send with the notice an application for renawal to the licensee’s address contained in the Board’s A licenstfe whose completed application records.
for renewal is received by the Board after the expiration date of the license shall be charged a late fee.
(c) If a person’s license has been expired for not more than 90 days. the person may renew the by paying the Board the required renewal and ,% fee one-half the fee If a person’s examination fee fol: the license has been ex?:lred for more than 90 days but less than two yea::a, the person may renew the license by paying to the Board all unpaid renewal fees and a fee that is equal to the examination fee for the If a person’s license has been expired for two years or more. the person may renew the licema by complying with the requirements set forth in substantive rules adopted by the Board.
(d) If a~ peram practices after license has expired, the person is an illegal pmctitioner and the Board may suspend or revoke the license.
Section 8(c) of article 4528~. V.T.C.S., provides for automatic renewal of expired less. than two years upon payment of fees and late charg’ts. If an applicant’s license has been expired two or more ye;lrs, he may renew it by complying with Subsection requirements set forth in substantive rules of the board.
8(d) authorizes the board to suspend or revoke a license if licensee has practiced after: of his Under this section, the board may suspend or revoke a license automatically renewed under subsection 8(c) upon a finding that illegal practice has occurred. An unresolved aLLegation of illegal practice under an license does not conrititute such a finding.
Section IO(a) states various grounds for which the board may refuse renewal. Thelie grounds include the following:
(1) violation of this Act or of any rule, regulation, or ordti!r issued under this Act; . . *3 (JR-236)
Me. Joyce A. Hamar - Page 3 dishonorable conduct (9) unprofessiom~l that, in the opinim of the Board, is likely deceive, defraud, o’c injure the public. . . .
We need not decide whether thlz board has authority under section 10(a) to delay renewal to determine whether section 10(a) grounds exist. We believe that practice under an expired Is actually governed by section 8, which contemplates that automatic relicensing will not be delayed to resolvs : a charge of practicing under an expired The board may not promulgate a rule that inconsistent See Kelly v. Industrial Accident Board, its enabling statute. ,-- 358 S.W.2d 874, 876-77 (Tex. Civ. App. - Austin 1962. writ ref’d); Railroad Comnission of Texas v. Fort Worth 6 D.C. Railway Co.. 161 S.W.2d 560. 562 (Tex. Civ. ,G,o. - Austin 1942. writ ref’d w.0.m.).
Thus, the board may not refuse
renewal merely because there!
licensee has practiced under an expired
The Board of Vocational Nurse Examiners nay not refuse an application renewal under section 8 of article 4528~. V.T.C.S., on the basis of an unresolved allegation that the applicant has practiced under an
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
Ms. Joyce A. Aatmer - Page 4 I:JM-236)
APPROVED:
OPINION COMNITTEE
Rick Gilpin, Chefmen
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
p 1062