Untitled Texas Attorney General Opinion ( 1984 )

. .
The Attorney General of Texas
November 30, 1984
JIM MAlTOX
Attorney General
Supreme Court BulldIng
Ms. Joyce A. Hammer opinion No. m-236
0. Box 12548 Executive Director
LitIn, TX. 7871% 254s Board of Vocational llurac Re: Whether the Board of Voca-
512l4752501 Rxsminera tional Nurse Examiners may refuse
Telex 9101STC1381
1300 E. Anderson Lane! to accept an application for re-
3lecopier 51214750266
Building C. Suite ‘281; newal of an expired license when
Austin, Texas 787%! there Is an unresolved allegation
714 Jackson. Suite 700 before the board that the appli-
-atlas. TX. 75202.4508
cant has been practicing without
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a current license
324 Alberta Ave.. Suite160 Dear Ma. Hamer:
I Paso. TX. 7Bgofc2793
Y15i5.353481 You have requested an opinion about an issue of license renewal
that has come beford! the Board of Vocational Nurse Examiners. You
1ex.ss. suit0 700
note that the act governing vocational nurses, article 452&z,
P, don, TX. 77002~3111 V.T.C.S., atates in section 10(a) that the board may refuse to issue
713122MSSS or renev a license I’cmrany of the reasons listed therein, including
“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
Lubbock. TX. 79401.3479
art. 4528~. $10(a) (911. You further inform us that Rule 231.81 of the
081747.3238 Rules and Regulations, of the Board of Vocational Nurse Examiners,
promulgated under the authority of section 5(g) of article 4528~.
defines “unprofessicaal conduct” as tncluding “(6) (E) practicing
4309 N. Tenth. Suite 8
IcAllen. TX. 7850%1685
vocational nursing ir, this state without a current Texas license.” 22
121082.4547 Tex. Admin. Code 1231.81 (1982). Based on these two considerations,
you ask whether the Board of Vocational Nurse Examiners may refuse to
accept an application for renewal of an expired vocational nursing
32 Main Ptaza. Suite 4M)
license when there is an unresolved allegation before the board that
an Antonio. TX. 7S20527i)~
~1212254191
the applicant has blitm practicing as a vocstional nurse without a
current license,
.n Equal OpportunItyI In our opinion, the board may not refuse to accept application
xffirmative Action EclplOY6- for renewal of erpir,ed licenses on the ground that an unresolved
allegation that the chpplicaut has practiced under the expired license
is pending before thlz board. Such action would be Inconsistent with
section 8 of article 4528~. V.T.C.S.:
(b) The Board shall notify each licensee about
the expirac:f.on date of the person’s license at
least 30 days before the expiration date. The
p. 1059
Ma. Joyce A. Earner - Page 2 (J+236)
Board by United St;ttes mail shall send with the
notice an application for license renawal to the
licensee’s address contained in the Board’s
records. A licenstfe whose completed application
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
license by paying to the Board the required
renewal fee and ,% fee that is one-half the
examination fee fol: the license. If a person’s
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 license. 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 vocational nursing
after the person’s 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 licenses expired for less. than two years upon payment of
renewal fees and late charg’ts. If an applicant’s license has been
expired for two or more ye;lrs, he may renew it by complying with
requirements set forth in substantive rules of the board. Subsection
8(d) authorizes the board to suspend or revoke a license if the
licensee has practiced after: the expiration of his license. 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
expired license does not conrititute such a finding.
Section IO(a) states various grounds for which the board may
refuse license renewal. Thelie grounds include the following:
(1) violation of this Act or of any rule,
regulation, or ordti!r issued under this Act;
. . . .
p. 1060
Me. Joyce A. Hamar - Page 3 (JR-236)
(9) unprofessiom~l or dishonorable conduct
that, in the opinim of the Board, is likely to
deceive, defraud, o’c injure the public. . . .
We need not decide whether thlz board has authority under section 10(a)
to delay license renewal to determine whether section 10(a) grounds
actually exist. We believe that practice under an expired license Is
governed by section 8, which contemplates that automatic relicensing
will not be delayed to resolvs : a charge of practicing under an expired
license. The board may not promulgate a rule that is inconsistent
with its enabling statute. See Kelly v. Industrial
,-- Accident Board,
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 to accept an application for license
renewal merely because there! is an unresolved allegation that the
licensee has practiced under an expired license.
The Board of Vocational Nurse Examiners nay not
refuse an application for license 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 expired license.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 1061
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