Could the Texas vocational-nursing board reject an expired-license renewal application because unlicensed practice was still only alleged?

Texas AG Opinion JM-236: Expired Nursing License Renewal

Plain-English summary

The Board of Vocational Nurse Examiners asked whether it could refuse an expired-license renewal application while an allegation remained unresolved that the applicant had been "practicing as a vocational nurse without a current license." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

JM-236 answered no. It concluded that the board could not refuse the application "on the ground that an unresolved allegation" of practice under the expired license was pending. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Under the statute as described in 1984, licenses expired for less than two years received "automatic renewal" after payment of the applicable renewal fees and late charges. The opinion said the statute did not contemplate delaying that renewal to resolve the charge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

The result did not excuse unlicensed practice. JM-236 said the board could suspend or revoke a renewed license "upon a finding that illegal practice has occurred," but an unresolved allegation was not such a finding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

The opinion did not decide the board's broader power to delay renewal when other section 10(a) grounds were at issue. It stated, "We need not decide" whether that authority existed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the board reject renewal based only on a pending allegation of unlicensed practice?

No. JM-236 said the board could not refuse renewal "merely because there is an unresolved allegation" that the licensee practiced after expiration. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Did the opinion treat the allegation as proof of illegal practice?

No. It stated that an "unresolved allegation of illegal practice" did not constitute a finding that illegal practice occurred. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Could the board act after finding that the nurse practiced without a current license?

Yes. JM-236 said subsection 8(d) authorized the board to "suspend or revoke a license" and allowed that action after a finding of illegal practice. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

How did the 1984 statute treat a license expired for less than two years?

The opinion described renewal upon payment of required charges and called it "automatic renewal of licenses expired for less than two years." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Did JM-236 resolve every possible ground for delaying renewal?

No. It expressly said, "We need not decide" whether section 10(a) allowed delay while the board determined whether other statutory grounds existed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Background and statutory framework

Article 4528c allowed the board to refuse issuance or renewal for listed reasons, including conduct likely "to deceive, defraud, or injure the public." A board rule included practicing vocational nursing without a current Texas license within "unprofessional conduct." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Section 8 set out different renewal paths based on how long a license had been expired. For a license expired two years or more, the statute required compliance with "substantive rules adopted by the Board." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

JM-236 treated practice under an expired license as governed specifically by section 8. It also applied the rule that the board "may not promulgate a rule that is inconsistent with its enabling statute." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Citations and references

• Kelly v. Industrial Accident Board, 358 S.W.2d 874, 876-77 (Tex. Civ. App. - Austin 1962, writ ref'd), appeared in support of the proposition that the board "may not promulgate a rule that is inconsistent with its enabling statute." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf
• Railroad Commission of Texas v. Fort Worth & D.C. Railway Co., 161 S.W.2d 560, 562 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.), appeared with the same administrative-law proposition. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf
• Article 4528c, sections 8 and 10(a), supplied the renewal and disciplinary provisions analyzed by the opinion. JM-236 said section 8 "contemplates that automatic relicensing will not be delayed" to resolve the specified charge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0236
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0236.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

November 30, 1984

Ms. Joyce A. Hammer
Executive Director
Board of Vocational Nurse Examiners
1300 E. Anderson Lane
Building C, Suite 285
Austin, Texas 78752

Opinion No. JM-236

Re: Whether the Board of Vocational Nurse Examiners may refuse to accept an application for renewal of an expired license when there is an unresolved allegation before the board that the applicant has been practicing without a current license

Dear Ms. Hammer:

You have requested an opinion about an issue of license renewal that has come before the Board of Vocational Nurse Examiners. You note that the act governing vocational nurses, article 4528c, V.T.C.S., states in section 10(a) that the board may refuse to issue or renew a license for any of the reasons listed therein, including "unprofessional or dishonorable conduct that, in the opinion of the Board, is likely to deceive, defraud, or injure the public." V.T.C.S. art. 4528c, section 10(a)(9). You further inform us that Rule 231.81 of the Rules and Regulations of the Board of Vocational Nurse Examiners, promulgated under the authority of section 5(g) of article 4528c, defines "unprofessional conduct" as including "(6)(E) practicing vocational nursing in this state without a current Texas license." 22 Tex. Admin. Code section 231.81 (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 license when there is an unresolved allegation before the board that the applicant has been practicing as a vocational nurse without a current license.

In our opinion, the board may not refuse to accept application for renewal of expired licenses on the ground that an unresolved allegation that the applicant has practiced under the expired license is pending before the board. Such action would be inconsistent with section 8 of article 4528c, V.T.C.S.:

(b) The Board shall notify each licensee about the expiration date of the person's license at least 30 days before the expiration date. The Board by United States mail shall send with the notice an application for license renewal to the licensee's address contained in the Board's records. A licensee 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 a fee that is one-half the examination fee for the license. If a person's license has been expired for more than 90 days but less than two years, 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 license by complying with the requirements set forth in substantive rules adopted by the Board.

(d) If a person practices vocational nursing after the person's license has expired, the person is an illegal practitioner and the Board may suspend or revoke the license.

Section 8(c) of article 4528c, V.T.C.S., provides for automatic renewal of licenses expired for less than two years upon payment of renewal fees and late charges. If an applicant's license has been expired for two or more years, 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 constitute such a finding.

Section 10(a) states various grounds for which the board may refuse license renewal. These grounds include the following:

(1) violation of this Act or of any rule, regulation, or order issued under this Act;

. . . .

(9) unprofessional or dishonorable conduct that, in the opinion of the Board, is likely to deceive, defraud, or injure the public. . . .

We need not decide whether the 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 resolve 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 Commission of Texas v. Fort Worth & D.C. Railway Co., 161 S.W.2d 560, 562 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.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.

SUMMARY

The Board of Vocational Nurse Examiners may not refuse an application for license renewal under section 8 of article 4528c, V.T.C.S., on the basis of an unresolved allegation that the applicant has practiced under an expired license.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood