.        .




                                         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
      t4/74249u
                                                                                   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




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