. .

JIMMAlTOX AttorneyGeneral

Supreme Court BulldIng 0. Box 12548 LitIn, TX. 7871% 254s 512l4752501 Telex 9101STC1381 3lecopier 51214750266

714 Jackson. Suite 700 -atlas. TX. 75202.4508 t4/74249u

324Alberta Ave..Suite 160 IPaso. TX. 7Bgofc2793 Y15i5.353481

1ex.ss. suit0 700 P, don, TX. 77002~3111 713122MSSS

SOBBroadway. Suits 312 Lubbock. TX. 79401.3479 081747.3238

4309 N.Tenth. Suite 8 IcAllen. TX. 7850%1685 121082.4547

32 Main Ptaza. Suite 4M) an Antonio. TX. 7S20527i)~ ~1212254191

.nEqual OpportunItyI xffirmative Action EclplOY6- 

# TheAttorney General ofTexas

November30, 1984

Ms. Joyce A. Hammer Executive Director Boardof Vocational llurac Rxsminera 1300E. Anderson Lane! Building C. Suite ‘281; Austin, Texas 787%! opinion No. m-236 Re: Whether the Board of Vocational Nurse Examiners mayrefuse to accept an application for renewal of an expired license when there Is anunresolved allegation before the board that the applicant has been practicing without acurrent license DearMa.Hamer:
You have requested an opinion about an issue of license renewal that has come beford! the Board of Vocational Nurse Examiners. You note that the act governing vocational nurses, article 452&z, V.T.C.S., atates in **section** 10(a) that the board mayrefuse to issue **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. art. 4528~. $10(a) (911. 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 4528~. defines “unprofessicaal conduct” as tncluding “(6) (E) practicing vocational nursing ir, this state without **a**current Texas license.” 22 Tex. Admin. Code 1231.81 (1982). Based on these two considerations, you ask whether the Board of Vocational Nurse Examiners mayrefuse 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 blitm practicing as a vocstional nurse without a current license,
In our opinion, the board may not refuse to accept application 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 thlzboard. Suchaction would be **Inconsistent** with section 8of article 4528~. V.T.C.S.:

(b) TheBoardshall notify each licensee about the expirac:f.on date of the person’s license at least 30 days before the expiration date. The

p. 1059Ma.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 aperson’s license has been expired for not more than 90 days. the person mayrenew 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 90days 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 twoyears 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 twoyears 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 maysuspend 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 afinding. Section IO(a) states various grounds for which the board may refuse license renewal. Theliegrounds include the following:

(1) violation of this Act or of any rule, regulation, or ordti!rissued under this **Act;**

. . . .

p. 1060Me.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 ’cinjure the public.

. . . Weneed not decide whether thlzboard has authority under section 10(a) to delay license renewal to determine whether section 10(a) grounds actually exist. Webelieve that practice under an expired license Is governed by section 8, which contemplates that automatic relicensing will **not** be delayed to resolvs: acharge of practicing under anexpired license. The board maynot 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 maynot refuse to accept an application for license renewal merely because there! is an unresolved allegation that the licensee has practiced under anexpired license.

TheBoard of Vocational NurseExaminers naynot refuse an application for license renewal under section 8of article 4528~. V.T.C.S., on the basis of anunresolved allegation that the applicant has practiced under **an** expired license.

JIM MATTOX Attorney General of Texas TOM GREEN First Assistant Attorney General
DAVIDR. RICRARDS Executive Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared by SusanL. Garrison Assistant Attorney General

p. 1061Ms. Joyce A. Aatmer- Page 4 I:JM-236)

APPROVED: OPINIONCOMNITTEE Rick Gilpin, Chefmen Colin Carl Susan Garrison TonyGuillory JimMoellinger Jennifer Riggs NancySutton Bruce Youngblood

p 1062