Current through Reg. 50, No. 13; March 28, 2025
(a) Purpose and Applicability. This section
establishes the criteria utilized by the Board in determining the effect of
criminal history on nursing licensure and eligibility for nursing licensure and
implements the requirements of Texas Occupations Code §
53.025 and Code of
Criminal Procedure Article 42A.111. This section applies to all individuals
seeking to obtain or retain a license or multistate licensure privilege to
practice nursing in Texas.
(b) An
individual is subject to denial of licensure or to disciplinary action for a
conviction for, or placement on deferred adjudication community supervision or
deferred disposition for, a felony that is directly related to the practice of
nursing or for a misdemeanor involving moral turpitude that is directly related
to the practice of nursing (collectively referred to as crimes
hereafter). This section applies to crimes that have been adjudicated through
agreement or judicial order by a state or federal criminal justice system,
without re-litigation of the underlying factual basis for the agreement or
judicial order.
(c) The Board
considers the crimes listed in the attached Criminal Guidelines (Guidelines) to
be directly related to the practice of nursing. The Guidelines reflect the most
common or well known crimes. The vast majority of an individual's criminal
history that is reviewed by the Board will fall within the Guidelines. However,
the Guidelines are not intended to an exhaustive listing, and they do not
prohibit the Board from considering an offense not specifically listed in the
Guidelines. In matters involving an offense that is not specifically listed in
the Guidelines, such as a violation of another state's law, federal law, or the
Uniform Code of Military Justice, a determination shall be made by comparing
that offense to the crime listed in the Guidelines that contains substantially
similar elements. The offense must meet the requirements of subsection (b) of
this section to be actionable. Further, because the practice of nursing may
involve direct contact with children in the normal course of official nursing
duties, the Board may consider an individual's prior deferred adjudication
community supervision, even if successfully completed, in its licensure
decisions.
Attached
Graphic
(d) The
Board has determined that the crimes listed in the Guidelines in subsection (c)
of this section are directly related to the practice of nursing for the
following reasons.
(1) Nursing is a unique
profession. Nurses practice autonomously in a wide variety of settings and
provide care to individuals who are, by virtue of their illness or injury,
physically, emotionally, and financially vulnerable. These individuals include
the elderly; children; individuals with mental disorders; sedated and
anesthetized patients; individuals with mental or cognitive disorders; and
disabled and immobilized individuals. Nurses that engage in criminal conduct
potentially place patients, healthcare employers, and the public at future risk
of harm.
(2) Crimes involving fraud
or theft. Nurses often have unfettered access to individuals' privileged
information, financial information, and valuables, including medications,
money, jewelry, credit cards/checkbook, and sentimental items. Nurses also
provide around the clock care, working night and weekend shifts at hospitals,
long term care facilities, nursing homes, assisted living facilities, and in
home health and home-like settings, where there is often no direct supervision
of the nurse. Patients in these settings are particularly vulnerable to the
unethical, deceitful, and illegal conduct of a nurse. When a nurse has engaged
in criminal behavior involving fraud or theft in the past, the Board is mindful
that similar misconduct may be repeated in these nursing settings, thereby
placing patients, healthcare employers, and the public at risk.
(3) Crimes involving sexual misconduct.
Nurses also frequently provide care to partially clothed or fully undressed
individuals, who are particularly vulnerable to exploitation. Due to the
intimate nature of nursing care, professional boundaries in the nurse-patient
relationship are extremely important. When a nurse has engaged in criminal
behavior involving any type of sexual misconduct in the past, the Board is
mindful that similar misconduct may be repeated in nursing settings. Such
conduct may involve touching intimate body parts when the touch is not
necessary for care, voyeurism, exposure of body parts when not necessary, and
surreptitious touching. As such, the Board considers crimes involving any type
of sexual misconduct to be highly relevant to an individual's ability to
provide safe nursing care.
(4)
Crimes involving lying, falsification, and deception. Nurses are expected to
accurately and honestly report and record information in a variety of sources,
such as medical records, pharmacy records, billing records, nursing notes, and
plans of care, as well as report errors in their own nursing practice. When a
nurse has engaged in criminal behavior involving lying, falsification, or
deceptive conduct, the Board is mindful that similar misconduct may be repeated
in nursing settings, thereby placing patients, healthcare employers, and the
public at risk.
(5) Crimes
involving drugs and alcohol.. Nurses have a duty to their patients to provide
safe, effective nursing care and to be fit to practice. Nurses who have a
substance use disorder may exhibit impairment in both cognitive and motor
functioning. A nurse affected by a substance use disorder may be unable to
accurately assess patients, make appropriate judgments, or intervene in a
timely and appropriate manner. This danger may be heightened when the nurse
works in an autonomous setting where other healthcare providers are not present
to provide interventions for the patient. As such, the Board considers crimes
related to the use or possession of drugs or alcohol to be highly relevant to a
nurse's fitness to practice.
(6)
Crimes involving violence or threatening behavior. Nurses provide care to the
most vulnerable of populations, including individuals who often have no voice
of their own and cannot advocate for themselves. Further, patients are
dependent on the nurse-patient relationship for their daily care. When a nurse
has engaged in violent or threatening criminal behavior in the past, the Board
is mindful that patients may be at risk for similar behavior in a healthcare
setting. As such, the Board considers crimes involving violence and threatening
behavior to be highly relevant to a nurse's fitness to practice.
(e) The Board has considered the
nature and seriousness of each of the crimes listed in the Guidelines in
subsection (c) of this section, the relationship of the crime to the purposes
for requiring a license to engage in nursing; the extent to which a license to
practice nursing might offer an opportunity to engage in further criminal
activity of the same type as that in which the individual previously was
involved; and the relationship of the crime to the ability, capacity, or
fitness required to perform the duties and discharge the responsibilities
associated with the practice of nursing. The Board has determined that each
crime listed in the Guidelines in subsection (c) of this section raises
concerns about the propensity of the individual to repeat similar misconduct in
the workplace, if provided the opportunity. The Board has also determined that
similar misconduct in the workplace would place vulnerable individuals at risk
of exploitation or victimization. As a result, if an individual has committed a
crime listed in the Guidelines in subsection (c) of this section, the Board
will evaluate that conduct to determine if disciplinary action is
warranted.
(f) Additionally, a
crime will be considered to be directly related to the practice of nursing if
the act:
(1) arose out of the practice of
vocational, professional, or advanced practice nursing, as those terms are
defined by the Nursing Practice Act (NPA);
(2) involves a current or former
patient;
(3) arose out of the
practice location of the nurse;
(4)
involves a healthcare professional with whom the nurse has had a professional
relationship; or
(5) constitutes a
criminal violation of the NPA or another statute regulating another profession
in the healing arts that also applies to the individual.
(g) Sanction. Not all criminal conduct will
result in a sanction. The Board recognizes that an individual may make a
mistake, learn from it, and not repeat it in the nursing practice setting. As
such, each case will be evaluated on its own merits to determine if a sanction
is warranted. If multiple crimes are present in a single case, a more severe
sanction may be considered by the Board pursuant to Texas Occupations Code
§
301.4531. If a
sanction is warranted, the Board will utilize the schedule of sanctions set
forth in §213.33(e) (relating to Factors Considered for Imposition of
Penalties/Sanctions) of this chapter. At a minimum, an individual will be
required to successfully complete the terms of his/her criminal probation and
provide evidence of successful completion to the Board. If an individual's
criminal behavior is due to, or associated with, a substance use disorder or a
mental health condition, evidence of ongoing sobriety, effective clinical
management, and/or appropriate ongoing treatment may be required. Further, if
an individual's criminal history implicates his/her current fitness to
practice, the individual may also be required to meet the requirements of
§213.29 to ensure he/she is safe to practice nursing.
(h) Factors. The following factors will be
considered when determining the appropriate sanction, if any, in eligibility
and disciplinary matters involving criminal conduct:
(1) the nature, seriousness, and extent of
the individual's past criminal activity;
(2) the age of the individual when the crime
was committed;
(3) the amount of
time that has elapsed since the individual's last criminal activity;
(4) the conduct and work activity of the
individual before and after the criminal activity;
(5) evidence of the individual's
rehabilitation or rehabilitative effort while incarcerated or after
release;
(6) other evidence of the
individual's fitness, including letters of recommendation from prosecutors and
law enforcement and correctional officers who prosecuted, arrested, or had
custodial responsibility for the individual; the sheriff or chief of police in
the community where the individual resides; and any other individual in contact
with the convicted individual;
(7)
a record of steady employment;
(8)
support of the individual's dependents;
(9) a record of good conduct;
(10) successful completion of
probation/community supervision or early release from probation/community
supervision;
(11) payment of all
outstanding court costs, supervision fees, fines, and restitution
ordered;
(12) the actual damages,
physical or otherwise, resulting from the criminal activity;
(13) the results of an evaluation performed
pursuant to Texas Occupations Code §
301.4521 and §
213.33(k) and (l)
of this chapter;
(14) evidence of
remorse and having learned from past mistakes;
(15) evidence of current support structures
that will prevent future criminal activity;
(16) evidence of current ability to practice
nursing in accordance with the NPA, Board rules, generally accepted standards
of nursing; and other laws that affect nursing practice; and
(17) any other matter that justice
requires.
(i)
Evaluations. Pursuant to Texas Occupations Code §
301.4521 and §
213.33(k) and (l)
of this chapter, the Board may request or require an individual to undergo an
evaluation with a Board-approved evaluator to better determine whether the
individual is safe to practice nursing and is able to comply with the NPA,
Board rules, and generally accepted standards of nursing. If an individual's
criminal behavior is due to, or associated with, a substance use disorder or a
mental health condition, evidence of ongoing sobriety, effective clinical
management, and/or appropriate ongoing treatment may also be
required.
(j) Youthful
Indiscretions. Some criminal behavior that is otherwise actionable may be
deemed a youthful indiscretion under this paragraph. In that event, a sanction
will not be imposed. The following criteria will be considered in making such a
determination:
(1) the offense was not
classified as a felony;
(2) absence
of criminal plan or premeditation;
(3) presence of peer pressure or other
contributing influences;
(4)
absence of adult supervision or guidance;
(5) evidence of immature thought
process/judgment at the time of the activity;
(7) evidence of restitution to both victim
and community;
(8) evidence of
current maturity and personal accountability;
(9) absence of subsequent criminal
conduct;
(10) evidence of having
learned from past mistakes;
(11)
evidence of current support structures that will prevent future criminal
activity; and
(12) evidence of
current ability to practice nursing in accordance with the NPA, Board rules,
generally accepted standards of nursing, and other laws that affect nursing
practice.
(k) Bars to
Licensure.
(1) Texas Occupations Code §
301.4535. The Board
is required under Texas Occupations Code §
301.4535(b)
to deny an individual initial licensure or licensure renewal and to revoke an
individual's nursing license or privilege to practice nursing in Texas upon a
final conviction or a plea of guilty or nolo contendere for a criminal offense
specified in §301.4535(a). Further, an individual is not eligible for
initial licensure or licensure endorsement in Texas or for licensure
reinstatement before the fifth anniversary of the date the individual
successfully completed and was dismissed from community supervision or parole
for an offense specified in §301.4535(a).
(2) Imprisonment. Pursuant to Texas
Occupations Code §
53.021(b),
an individual's license or multistate licensure privilege to practice nursing
in Texas will be revoked by operation of law upon the individual's imprisonment
following a felony conviction, felony community supervision revocation,
revocation of parole, or revocation of mandatory supervision.
(3) Texas Occupations Code Chapter 108.
(A) Pursuant to Chapter 108, Subchapter B,
the Board is required to deny or revoke, as applicable, the license of an
individual who:
(i) is required to register as
a sex offender under the Code of Criminal Procedure Chapter 62;
(ii) has been previously convicted of or
placed on deferred adjudication community supervision for the commission of a
felony offense involving the use or threat of force; or
(iii) has been previously convicted of or
placed on deferred adjudication community supervision for the commission of an
offense:
(I) under the Texas Penal Code
§§
22.011,
22.02,
22.021, or
22.04 or an offense under
the laws of another state or federal law that is equivalent to an offense under
one of these sections;
(II)
committed when the individual held a license as a health care professional in
this state or another state and in the course of providing services within the
scope of the individua's license; and
(III) in which the victim of the offense was
a patient of the individual.
(B) An individual's eligibility for
reapplication or reinstatement of licensure is governed by the Texas
Occupations Code Chapter 108, Subchapter B.
(l) Arrests. The fact that an individual has
been arrested will not be used as grounds for sanction. If, however, evidence
ascertained through the Board's own investigation from information contained in
the arrest record regarding the underlying conduct suggests actions violating
the NPA or Board rules, the Board may consider such evidence.
(m) The Executive Director is authorized to
close an eligibility file when the individual seeking licensure has failed to
respond to a request for information, a proposed eligibility order, or denial
of licensure within 60 days of the request for information, proposed
eligibility order, or denial.
(n)
Pursuant to the Nurse Licensure Compact, Texas Occupations Code §
304.0015, Article
III, (c)(7), an individual will not be eligible to hold a multistate licensure
privilege if the individual has been convicted or found guilty, or has entered
into an agreed disposition, of a felony offense under applicable state or
federal criminal law. Further, pursuant to the Nurse Licensure Compact, Texas
Occupations Code §
304.0015, Article
III, (c)(8), an individual will not be eligible to hold a multistate licensure
privilege if the individual has been convicted or found guilty, or has entered
into an agreed disposition, of a misdemeanor offense related to the practice of
nursing, as determined on a case-by-case basis by the
Board.
