. . 

JIM MAlTOX 

Attorney General 

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 

324 Alberta Ave.. Suite 160 

I Paso. TX. 7Bgofc2793 

Y15i5.353481 

1ex.ss. suit0 700 

P, don, TX. 77002~3111 

713122MSSS 

SOB Broadway. 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 

.n Equal OpportunItyI 

xffirmative Action EclplOY6- 

The Attorney General of Texas 

November 30, 1984 

Ms. Joyce A. Hammer 

Executive Director 

Board of Vocational llurac 

Rxsminera 

1300 E. Anderson Lane! 

Building C. Suite ‘281; 

Austin, Texas 787%! 

opinion No. m-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 Ma. 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 may refuse to issue 

or renev a license I’cmr any 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 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 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 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 

TOM GREEN 

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