H.B. No. 2180
1-1 AN ACT
1-2 relating to the regulation of the practice of registered nursing
1-3 and to the continuation of the Board of Nurse Examiners; providing
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 4513, Revised Statutes, is amended to
1-7 read as follows:
1-8 Art. 4513. BOARD OF NURSE EXAMINERS
1-9 Sec. 1. Composition of Board; Programs of Study. The Board
1-10 of Nurse Examiners is composed of nine members appointed by the
1-11 governor with the advice and consent of the senate. Appointments
1-12 to the board shall be made without regard to the race, color
1-13 <creed>, disability, sex, religion, age, or national origin of the
1-14 appointees. The board <Board of Nurse Examiners> shall prescribe
1-15 three programs of study to prepare professional nurse
1-16 practitioners, to wit: (1) The Baccalaureate Degree Program--A
1-17 program leading to a baccalaureate degree in nursing conducted by
1-18 an educational unit in nursing (department, division, school, or
1-19 college) which is a part of a senior college or university; (2) The
1-20 Associate Degree Program--A program leading to an associate degree
1-21 in nursing conducted by an educational unit in nursing within the
1-22 structure of a college or a university; and (3) The Diploma
1-23 Program--A program leading to a diploma in nursing conducted by a
1-24 single purpose school usually under the control of a hospital. Six
2-1 of the board members must be Registered Nurses, three of whom shall
2-2 be engaged in professional nurse education and shall be
2-3 representative of said three programs in that one shall be a nurse
2-4 faculty member in a school of nursing pursuing the Baccalaureate
2-5 Degree Program; one shall be a nurse faculty member in a school of
2-6 nursing pursuing the Associate Degree Program; and one shall be a
2-7 nurse faculty member in a school of nursing pursuing the Diploma
2-8 Program. Three members must be members of the general public.
2-9 Sec. 2. Terms; Requirements of Professional Nurse Members
2-10 and Public Members. (a) The members of the board shall hold
2-11 office for staggered terms of six years, with the terms of one
2-12 practicing registered nurse, one professional nurse engaged in
2-13 nurse education, and one public member expiring on January 31 of
2-14 odd-numbered years. The professional nurse members must be
2-15 actually employed in the nursing profession for at least three
2-16 years before their appointment.
2-17 (b) A person is not eligible for appointment as a public
2-18 member if the person or the person's spouse:
2-19 (1) is licensed by an occupational regulatory agency
2-20 in the field of health care;
2-21 (2) is employed by or participates in the management
2-22 of a business entity or other organization that provides
2-23 health-care services or that sells, manufactures, or distributes
2-24 health-care supplies or equipment; <or>
2-25 (3) owns, controls, or has, directly or indirectly,
2-26 more than a 10 percent interest in a business entity or other
2-27 organization that provides health-care services or that sells,
3-1 manufactures, or distributes health-care supplies or equipment; or
3-2 (4) uses or receives a substantial amount of tangible
3-3 goods, services, or funds from the board, other than compensation
3-4 or reimbursement authorized by law for board membership,
3-5 attendance, or expenses.
3-6 Sec. 3. CONFLICT OF INTEREST RESTRICTIONS. (a) An officer,
3-7 employee, or paid consultant of a Texas trade association in the
3-8 field of health care may not be a board member or employee of the
3-9 board who is exempt from the state's position classification plan
3-10 or is compensated at or above the amount prescribed by the General
3-11 Appropriations Act for step 1, salary group 17, of the position
3-12 classification salary schedule.
3-13 (b) A person who is the spouse of an officer, manager, or
3-14 paid consultant of a Texas trade association in the field of health
3-15 care may not be a board member or employee of the board who is
3-16 exempt from the state's position classification plan or is
3-17 compensated at or above the amount prescribed by the General
3-18 Appropriations Act for step 1, salary group 17, of the position
3-19 classification salary schedule.
3-20 (c) For the purposes of this section, a Texas trade
3-21 association is a nonprofit, cooperative, and voluntarily joined
3-22 association of business or professional competitors in this state
3-23 designed to assist its members and its industry or profession in
3-24 dealing with mutual business or professional problems and in
3-25 promoting their common interest.
3-26 Sec. 4. EFFECT OF LOBBYING ACTIVITY. A person may not serve
3-27 as a board member or act as general counsel to the board if the
4-1 person is required to register as a lobbyist under Chapter 305,
4-2 Government Code, and its subsequent amendments, because of the
4-3 person's activities for compensation on behalf of a profession
4-4 related to the operation of the board.
4-5 Sec. 5. GROUNDS FOR REMOVAL FROM BOARD. (a) It is a ground
4-6 for removal from the board if a member:
4-7 (1) does not have at the time of appointment the
4-8 qualifications required by Section 1 of this article;
4-9 (2) does not maintain during service on the board the
4-10 qualifications required by Section 1 of this article;
4-11 (3) violates a prohibition established by Section 3 or
4-12 4 of this article;
4-13 (4) cannot discharge the member's term for a
4-14 substantial part of the term for which the member is appointed
4-15 because of illness or disability; or
4-16 (5) is absent from more than half of the regularly
4-17 scheduled board meetings that the member is eligible to attend
4-18 during a calendar year unless the absence is excused by majority
4-19 vote of the board.
4-20 (b) The validity of an action of the board is not affected
4-21 by the fact that it is taken when a ground for removal of a board
4-22 member exists.
4-23 (c) If the executive director has knowledge that a potential
4-24 ground for removal exists, the executive director shall notify the
4-25 presiding officer of the board of the ground. The presiding
4-26 officer shall then notify the governor that a potential ground for
4-27 removal exists.
5-1 Sec. 6. STANDARDS OF CONDUCT INFORMATION. The board shall
5-2 provide to its members and employees, as often as necessary,
5-3 information regarding their qualifications for office or employment
5-4 under this article and their responsibilities under applicable laws
5-5 relating to standards of conduct for state officers or employees.
5-6 Sec. 7. STAFF. The board shall develop and implement
5-7 policies that clearly define the respective responsibilities of the
5-8 board and the staff of the board.
5-9 Sec. 8. ANNUAL FINANCIAL REPORT. The board shall file
5-10 annually with the governor and the presiding officer of each house
5-11 of the legislature a complete and detailed written report
5-12 accounting for all funds received and disbursed by the board during
5-13 the preceding fiscal year. The annual report must be in the form
5-14 and reported in the time provided by the General Appropriations
5-15 Act.
5-16 Sec. 9. PERSONNEL POLICIES. (a) The executive director or
5-17 the director's designee shall develop an intra-agency career ladder
5-18 program. The program shall require intra-agency posting of all
5-19 nonentry level positions concurrently with any public posting.
5-20 (b) The executive director or the director's designee shall
5-21 develop a system of annual performance evaluations based on
5-22 measurable job tasks. All merit pay for board employees must be
5-23 based on the system established under this subsection.
5-24 Sec. 10. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
5-25 executive director or the director's designee shall prepare and
5-26 maintain a written policy statement to ensure implementation of a
5-27 program of equal employment opportunity under which all personnel
6-1 transactions are made without regard to race, color, disability,
6-2 sex, religion, age, or national origin. The policy statement must
6-3 include:
6-4 (1) personnel policies, including policies relating to
6-5 recruitment, evaluation, selection, application, training, and
6-6 promotion of personnel that are in compliance with the Commission
6-7 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
6-8 and its subsequent amendments;
6-9 (2) a comprehensive analysis of the board work force
6-10 that meets federal and state guidelines;
6-11 (3) procedures by which a determination can be made of
6-12 significant underuse in the board work force of all persons for
6-13 whom federal or state guidelines encourage a more equitable
6-14 balance; and
6-15 (4) reasonable methods to appropriately address those
6-16 areas of underuse.
6-17 (b) A policy statement prepared under Subsection (a) of this
6-18 section must cover an annual period, be updated annually, be
6-19 reviewed by the Commission on Human Rights for compliance with
6-20 Subsection (a)(1) of this section, and be filed with the governor's
6-21 office.
6-22 (c) The governor's office shall deliver a biennial report to
6-23 the legislature based on the information received under Subsection
6-24 (b) of this section. The report may be made separately or as part
6-25 of other biennial reports to the legislature.
6-26 Sec. 11. PUBLIC INTEREST INFORMATION. (a) The board shall
6-27 prepare information of public interest describing the functions of
7-1 the board and the procedures by which complaints are filed with and
7-2 resolved by the board. The board shall make the information
7-3 available to the public and appropriate state agencies.
7-4 (b) The board by rule shall establish methods by which
7-5 consumers and service recipients are notified of the name, mailing
7-6 address, and telephone number of the board for the purpose of
7-7 directing complaints to the board. The board may provide for that
7-8 notification:
7-9 (1) on each registration form, application, or written
7-10 contract for services of an individual or entity regulated by the
7-11 board;
7-12 (2) on a sign prominently displayed in the place of
7-13 business of each individual or entity regulated by the board; or
7-14 (3) in a bill for service provided by an individual or
7-15 entity regulated by the board.
7-16 (c) The board shall list along with its regular telephone
7-17 number the toll-free telephone number that may be called to present
7-18 a complaint about a health professional if the toll-free number is
7-19 established under other state law.
7-20 (d) The board shall enter into memoranda of understanding
7-21 with each state agency that licenses health-care facilities or
7-22 agencies for the purpose of coordinating any posting or
7-23 notification requirements under Subsection (b) of this section with
7-24 posting or notification requirements that may be imposed on the
7-25 health-care facility or agency by that state agency.
7-26 Sec. 12. PUBLIC PARTICIPATION IN BOARD HEARINGS. The board
7-27 shall develop and implement policies that provide the public with a
8-1 reasonable opportunity to appear before the board and to speak on
8-2 any issue under the jurisdiction of the board.
8-3 Sec. 13. PROGRAM ACCESSIBILITY. The board shall prepare and
8-4 maintain a written plan that describes how a person who does not
8-5 speak English can be provided reasonable access to the board's
8-6 programs. The board shall also comply with federal and state laws
8-7 for program and facility accessibility.
8-8 Sec. 14. TRAINING; STANDARDS OF CONDUCT INFORMATION.
8-9 (a) The board shall establish a training program for the members
8-10 of the board.
8-11 (b) Before a member of a board may assume the member's
8-12 duties and before the member may be confirmed by the senate, the
8-13 member must complete at least one course of the training program
8-14 established under this section.
8-15 (c) A training program established under this section shall
8-16 provide information to a participant regarding:
8-17 (1) the enabling legislation that created the board;
8-18 (2) the programs operated by the board;
8-19 (3) the role and functions of the board;
8-20 (4) the rules of the board with an emphasis on the
8-21 rules that relate to disciplinary and investigatory authority;
8-22 (5) the current budget for the board;
8-23 (6) the results of the most recent formal audit of the
8-24 board;
8-25 (7) the requirements of the:
8-26 (A) open meetings law, Chapter 271, Acts of the
8-27 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
9-1 Texas Civil Statutes), and its subsequent amendments;
9-2 (B) open records law, Chapter 424, Acts of the
9-3 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
9-4 Texas Civil Statutes), and its subsequent amendments; and
9-5 (C) Administrative Procedure and Texas Register
9-6 Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
9-7 subsequent amendments;
9-8 (8) the requirements of the conflict of interest laws
9-9 and other laws relating to public officials; and
9-10 (9) any applicable ethics policies adopted by that
9-11 state agency or the Texas Ethics Commission.
9-12 (d) In developing the training requirements provided for in
9-13 this section, the board shall consult with the governor's office,
9-14 the attorney general's office, and the ethics commission.
9-15 (e) In the event that another state agency or entity is
9-16 given the authority to establish the training requirements, the
9-17 board shall allow that training in lieu of developing its own
9-18 program.
9-19 Sec. 15. INTERAGENCY CONTRACTS. The board may enter
9-20 interagency contracts for any purpose authorized by law.
9-21 <RESTRICTIONS ON MEMBERS, EMPLOYEES, AND GENERAL COUNSEL. A member
9-22 or employee of the board may not be an officer, employee, or paid
9-23 consultant of a national or statewide trade association in the
9-24 health-care industry. A member or employee of the board may not be
9-25 related within the second degree by affinity or within the second
9-26 degree by consanguinity, as determined under Article 5996h, Revised
9-27 Statutes, to a person who is an officer, employee, or paid
10-1 consultant of a national or statewide trade association in the
10-2 regulated industry. A person who is required to register as a
10-3 lobbyist under Chapter 305, Government Code, by virtue of his
10-4 activities on behalf of a national or statewide trade or
10-5 professional association in a health-services industry may not
10-6 serve as a member of the board or act as the general counsel to the
10-7 board.>
10-8 <Sec. 4. GROUNDS FOR REMOVAL. It is grounds for removal
10-9 from the board if a member:>
10-10 <(1) does not have at the time of appointment the
10-11 qualifications required for appointment to the board;>
10-12 <(2) does not maintain during the service on the board
10-13 the qualifications for appointment to the board;>
10-14 <(3) violates a prohibition imposed on members of the
10-15 board; or>
10-16 <(4) fails to attend at least half of the regularly
10-17 scheduled board meetings held in a calendar year, excluding
10-18 meetings held while the person was not a board member.>
10-19 <Sec. 5. VALIDITY OF ACTIONS. The validity of an action of
10-20 the board is not affected by the fact that it was taken when a
10-21 ground for removal of a member of the board existed.>
10-22 SECTION 2. Article 4513a, Revised Statutes, is amended to
10-23 read as follows:
10-24 Art. 4513a. SUNSET PROVISION. The Board of Nurse Examiners
10-25 is subject to Chapter 325, Government Code (Texas Sunset Act).
10-26 Unless continued in existence as provided by that chapter, the
10-27 board is abolished September 1, 2005 <1993>.
11-1 SECTION 3. Article 4514, Revised Statutes, is amended to
11-2 read as follows:
11-3 Art. 4514. Organization of board
11-4 Sec. 1. President; Special Meetings; Powers. The governor
11-5 shall designate one of the members of the board as presiding
11-6 officer to serve in that capacity at the pleasure of the governor.
11-7 The members of the board shall elect other officers from their
11-8 members <number a president>. Special meetings of said board shall
11-9 be called by the presiding officer <president> acting upon the
11-10 written request of any two members. The board shall have the
11-11 authority and power to make and enforce all rules and regulations
11-12 necessary for the performance of its duties and conducting of
11-13 proceedings before it, to establish standards of professional
11-14 conduct for all persons licensed under the provisions of this law
11-15 in keeping with its purpose and objectives, to regulate the
11-16 practice of professional nursing and to determine whether or not an
11-17 act constitutes the practice of professional nursing, not
11-18 inconsistent with this Act. Such rules and regulations shall not
11-19 be inconsistent with the provisions of this law.
11-20 Sec. 2. <LEGISLATIVE DISAPPROVAL OF RULES. If the
11-21 appropriate standing committees of both houses of the legislature
11-22 acting under Subsection (g), Section 5, Administrative Procedure
11-23 and Texas Register Act, as amended (Article 6252-13a, Vernon's
11-24 Texas Civil Statutes), transmit to the board statements opposing
11-25 adoption of a rule under that section, the rule may not take
11-26 effect, or if the rule has already taken effect, the rule is
11-27 repealed effective on the date the board receives the committee's
12-1 statements.>
12-2 <Sec. 3.> Rules Restricting Competitive Bidding or
12-3 Advertising Prohibited. The board may not promulgate rules
12-4 restricting competitive bidding or advertising by licensees except
12-5 to prohibit false, misleading, or deceptive practices by the
12-6 person. The board may not include in its rules to prohibit false,
12-7 misleading, or deceptive practices by a person regulated by the
12-8 board a rule that:
12-9 (1) restricts the person's use of any medium for
12-10 advertising;
12-11 (2) restricts the person's personal appearance or use
12-12 of the person's <his or her> voice in an advertisement;
12-13 (3) relates to the size or duration of an
12-14 advertisement by the person; or
12-15 (4) restricts the person's advertisement under a trade
12-16 name.
12-17 Sec. 3 <4>. RECORDS; <CONSUMER INFORMATION;> ASSISTANCE TO
12-18 LEGAL AUTHORITIES. The executive director <secretary> shall be
12-19 required to keep a record of each meeting of said board, including
12-20 a register of the names of all nurses registered under this law,
12-21 which shall be at all times open to public inspection. The <board
12-22 shall prepare information of consumer interest describing the
12-23 regulatory functions of the board and the board's procedures by
12-24 which consumer complaints are filed with and resolved by the board.
12-25 The board shall make the information available to the general
12-26 public and appropriate state agencies. Said> board shall assist
12-27 the proper legal authorities in the prosecution of all persons
13-1 violating any provision of this law. Nothing herein shall either
13-2 expand or contract the board's present powers as they relate to the
13-3 regulation of nursing education.
13-4 Sec. 4 <5>. Open Meetings; Administrative Procedure. The
13-5 board is subject to the open meetings law, Chapter 271, Acts of the
13-6 60th Legislature, Regular Session, 1967, as amended (Article
13-7 6252-17, Vernon's Texas Civil Statutes), and the Administrative
13-8 Procedure and Texas Register Act, as amended (Article 6252-13a,
13-9 Vernon's Texas Civil Statutes).
13-10 Sec. 5 <6>. Recommendation of Rules Relating to Delegation
13-11 of Medical Acts by Physicians. The board may recommend to the
13-12 Texas State Board of Medical Examiners the adoption of rules
13-13 relating to physician's delegating medical acts to registered
13-14 nurses <persons> licensed by the board. The recommendations shall
13-15 be acted on in the same manner as a petition for the adoption of a
13-16 rule by an interested party under the Administrative Procedure and
13-17 Texas Register Act, as amended (Article 6252-13a, Vernon's Texas
13-18 Civil Statutes). The board in making recommendations may
13-19 distinguish between nurses on the basis of special training and
13-20 education. The board <Board of Nurse Examiners> in recommending
13-21 rules and the Texas State Board of Medical Examiners in acting on
13-22 recommended rules shall act, to the extent allowable under state
13-23 and federal statutes and regulations, so as to permit the state to
13-24 obtain its fair share of federal funds available for the delivery
13-25 of health care in this state.
13-26 Sec. 6 <7>. Rules. The board shall adopt rules
13-27 establishing:
14-1 (1) any specialized education and training, including
14-2 pharmacology, a registered nurse must have to carry out a
14-3 prescription drug order pursuant to Subdivision (5), Subsection
14-4 (d), Section 3.06, Medical Practice Act (Article 4495b, Vernon's
14-5 Texas Civil Statutes); and
14-6 (2) a system for assigning an identification number to
14-7 a registered nurse who provides the board with evidence of
14-8 completing the required specialized education and training.
14-9 Sec. 7. NURSING PRACTICE ACT. Articles 4513-4528, Revised
14-10 Statutes, collectively may be referred to as the Nursing Practice
14-11 Act.
14-12 SECTION 4. Article 4517, Revised Statutes, is amended to
14-13 read as follows:
14-14 Art. 4517. EXECUTIVE DIRECTOR <SECRETARY> AND BONDS.
14-15 <Sec. 1.> The board shall employ a qualified executive
14-16 director <secretary>, who shall not be a member of the board.
14-17 Under the direction of the board, the executive director
14-18 <secretary> shall perform duties required by this Act and duties
14-19 designated by the board. Also, the board shall employ all other
14-20 persons necessary to carry on the work of the board. The executive
14-21 director <secretary> shall upon employment execute a bond in the
14-22 sum of One Thousand Dollars payable to the Governor. The bond is
14-23 conditioned that the executive director <secretary> shall
14-24 faithfully perform the duties of the <his or her> office and shall
14-25 account for funds coming into the director's <his or her> hands as
14-26 executive director <secretary>. The bond shall be signed by two or
14-27 more sufficient sureties or by a surety company authorized to do
15-1 business in this state and approved by the president of the board.
15-2 <Sec. 2. The executive secretary or his designee shall
15-3 develop a system of annual performance evaluations based on
15-4 measurable job tasks. All merit pay authorized by the executive
15-5 secretary must be based on the system established under this
15-6 section.>
15-7 SECTION 5. Sections 1, 3, and 4, Article 4518, Revised
15-8 Statutes, are amended to read as follows:
15-9 Sec. 1. It shall be the duty of the Board <of Nurse
15-10 Examiners> to prescribe and publish the minimum requirements and
15-11 standards for a course of study in programs which prepare
15-12 professional nurse practitioners. All other regulations necessary
15-13 to conduct accredited schools of nursing and educational programs
15-14 for the preparation of professional nurses shall be as prescribed
15-15 by the Board, provided, however, that the minimum period of time
15-16 that the Board may require shall be at least two (2) academic years
15-17 and the maximum period of time shall not exceed four (4) calendar
15-18 years. The Board shall accredit such schools of nursing and
15-19 educational programs as meet its requirements and shall deny or
15-20 withdraw accreditation from schools of nursing and educational
15-21 programs which fail to meet the prescribed course of study or other
15-22 standards.
15-23 The Board shall give those persons and organizations affected
15-24 by its orders or decisions under this Article reasonable notice
15-25 thereof, not less than twenty (20) days, and an opportunity to
15-26 appear and be heard with respect to same. The Board shall hear all
15-27 protests or complaints from such persons and organizations affected
16-1 by such rule, regulation or decision as to the inadequacy or
16-2 unreasonableness of any rule, regulation or order promulgated or
16-3 adopted by it, or the injustice of any order or decision by it. If
16-4 any person or organization which shall be affected by such order or
16-5 decision shall be dissatisfied with any regulation, rule or order
16-6 by such Board, such person or organization shall have the right,
16-7 within thirty (30) days from the date such order is entered and
16-8 approved by the Board, to bring an action against said Board in the
16-9 District Court of Travis County, Texas, to have such regulation,
16-10 rule or order vacated or modified, and shall set forth in a
16-11 petition therefor the principal grounds of objection to any or all
16-12 of such rules, regulations or orders. Such appeal as herein
16-13 provided shall be de novo as that term is known and understood in
16-14 appeals from the Justice Court to the County Court.
16-15 Sec. 3. Every applicant for registration as a registered
16-16 nurse <under this law> shall present to the Board <of Nurse
16-17 Examiners> evidence of successful completion of an accredited
16-18 program of professional nursing education and a sworn application
16-19 and shall upon payment of required fees be entitled to take the
16-20 examination prescribed by the Board. Upon <making a> passing the
16-21 examination <grade>, the applicant shall be entitled to receive
16-22 from said Board a certificate attested by the seal of said Board,
16-23 entitling such person to practice as a registered nurse in the
16-24 State of Texas. The Board shall determine the criteria <score>,
16-25 not to exceed the criteria <a score> required by a majority of the
16-26 states, that constitutes <a> passing <grade on> the examination.
16-27 Sec. 4. Any person practicing or offering to practice
17-1 professional nursing in this state for compensation, shall
17-2 hereafter be required to submit evidence to the Board <of Nurse
17-3 Examiners> that the person <he or she> is qualified to practice and
17-4 shall be registered as provided by this law.
17-5 SECTION 6. Article 4519, Revised Statutes, is amended to
17-6 read as follows:
17-7 Art. 4519. EXAMINATION <AND FEE>. (a) An applicant that
17-8 wishes to take a licensing examination must submit to the board an
17-9 application demonstrating the applicant's qualifications under this
17-10 chapter. If the board determines that the applicant meets the
17-11 qualifications, the applicant may take the licensing examination
17-12 <Upon filing application for examination each applicant shall pay
17-13 an examination fee which shall in no case be returned to the
17-14 applicant. If the applicant passes the examination, then no
17-15 further fee shall be required for registration. Any applicant for
17-16 registration who fails to successfully pass the examination herein
17-17 provided for shall have the right to stand a second examination>.
17-18 (b) The examination shall be given in various cities
17-19 throughout the State and shall be of such character as to determine
17-20 the fitness of the applicant to practice professional nursing. A
17-21 written examination prepared, approved, or offered by the board,
17-22 including a standardized national examination, shall be validated
17-23 by an independent testing professional. Not later than the 30th
17-24 day <Within 30 days> after the date on which a licensing
17-25 examination is administered under this article, the board shall
17-26 notify each examinee of the results of the examination. However,
17-27 if an examination is graded or reviewed by a national testing
18-1 service, the board shall notify each examinee of the results of the
18-2 examination not later than the 14th day <within two weeks> after
18-3 the date the board receives the results from the testing service.
18-4 If the notice of the examination results graded or reviewed by a
18-5 national testing service will be delayed for more than 90 days
18-6 after the examination date, the board shall notify each examinee of
18-7 the reason for the delay before the 90th day. If requested in
18-8 writing by a person who fails the licensing examination, the board
18-9 shall furnish the person with an analysis of the person's
18-10 performance on the examination. If the result of the examination
18-11 be satisfactory to the board, a certificate shall be issued to the
18-12 applicant, signed by the president of the board, and executive
18-13 director <secretary> and attested by the seal of said board, which
18-14 certificate shall qualify the person receiving the same to practice
18-15 professional nursing in this State.
18-16 (c) The board by rule shall establish the conditions under
18-17 which an applicant who fails the licensing examination may retake
18-18 the examination. After twice failing the examination, the board
18-19 may require an applicant to fulfill additional educational
18-20 requirements and, after twice failing an examination, may deny an
18-21 applicant who failed the examination the opportunity to retake the
18-22 examination.
18-23 SECTION 7. Article 4521, Revised Statutes, is amended to
18-24 read as follows:
18-25 Art. 4521. TEMPORARY LICENSE; ENDORSEMENT <CERTIFICATE FROM
18-26 ANOTHER STATE>. (a) To qualify for a temporary license to
18-27 practice as a registered nurse by endorsement, an applicant for
19-1 licensing must:
19-2 (1) submit to the board an endorsement fee as
19-3 determined by the board and a completed application given under
19-4 oath, in the form prescribed by the board;
19-5 (2) have possessed at the time of initial licensing as
19-6 a registered nurse other qualifications necessary to have been
19-7 eligible for licensing at that time in this state; and
19-8 (3) have presented to the board proof of initial
19-9 licensing by examination and proof that the license and other
19-10 license or licenses granted to the applicant by any other state
19-11 have not been suspended, revoked, canceled, surrendered, or
19-12 otherwise restricted for any reason.
19-13 (b) A holder of a temporary license under this section shall
19-14 receive a permanent license if the applicant:
19-15 (1) has verified the academic and professional
19-16 credentials of the applicant; and
19-17 (2) satisfies any other requirement set by statute.
19-18 (c) The board shall either grant or deny an application for
19-19 a permanent license within 180 days after the date of the board's
19-20 receipt of all required forms or information. The board may extend
19-21 the 180-day time limit to allow for the receipt and tabulation of
19-22 examination results.
19-23 (d) Any applicant who holds a registration certificate as a
19-24 registered nurse from a <another state, district,> territory or
19-25 possession of the United States, or from a foreign country, may be
19-26 issued a license to practice as a registered nurse in the State of
19-27 Texas by endorsement and without examination upon the payment of a
20-1 fee established by the board, provided in the opinion of the Board
20-2 of Nurse Examiners such other board issuing such other certificate
20-3 in its examination required the same general degree of fitness
20-4 required by this state.
20-5 SECTION 8. Article 4523, Revised Statutes, is amended to
20-6 read as follows:
20-7 Art. 4523. Temporary permit. (a) <Any nurse who has
20-8 graduated from an accredited school of nursing, who holds a
20-9 registration certificate as a Registered Nurse from another state
20-10 or from a possession of the United States, and who is actually
20-11 engaged in the pursuit of his or her profession, shall be permitted
20-12 to practice in the state under a permit issued by the board of
20-13 nurse examiners, upon the payment of a fee established by the
20-14 board.>
20-15 <(b)> The board may issue a permit to practice professional
20-16 nursing under the direct supervision of a Registered Nurse to
20-17 graduates of approved educational programs pending the results of
20-18 the licensing examination. The permit expires on receipt of a
20-19 permanent license or on receipt of a notice of failing the
20-20 examination from the board. The permit may not be issued to any
20-21 applicant who has previously failed an examination administered by
20-22 the board or by another state.
20-23 (b) <(c)> To allow a nurse to satisfy a requirement imposed
20-24 under Article 4526, Revised Statutes, to renew an expired <a>
20-25 license <expired for two years or more> or a requirement imposed
20-26 under Article 4526b, Revised Statutes, to reactivate a nursing
20-27 license from inactive status, the board may issue a temporary
21-1 permit to practice professional nursing for the limited purpose of
21-2 satisfying the requirement. A permit issued under this subsection
21-3 expires on the earlier of the receipt of a permanent license or six
21-4 months from the date of issuance.
21-5 (c) <(d)> A person who holds a temporary permit under this
21-6 article is a licensed professional registered nurse for all
21-7 purposes except to the extent of any stipulations or limitations on
21-8 practice imposed by the board as a condition of issuing the permit.
21-9 SECTION 9. Chapter 7, Title 71, Revised Statutes, is amended
21-10 by adding Articles 4524A-4524D to read as follows:
21-11 Art. 4524A. RECORDS OF COMPLAINTS. (a) The board shall
21-12 keep an information file about each complaint filed with the board.
21-13 The board's information file shall be kept current and contain a
21-14 record for each complaint of:
21-15 (1) all persons contacted in relation to the
21-16 complaint;
21-17 (2) a summary of findings made at each step of the
21-18 complaint process;
21-19 (3) an explanation of the legal basis and reason for a
21-20 complaint that is dismissed; and
21-21 (4) other relevant information.
21-22 (b) If a written complaint is filed with the board that the
21-23 board has authority to resolve, the board, at least as frequently
21-24 as quarterly and until final disposition of the complaint, shall
21-25 notify the parties to the complaint of the status of the complaint
21-26 unless the notice would jeopardize an undercover investigation.
21-27 (c) The board by rule shall adopt a form to standardize
22-1 information concerning complaints made to the board. The board by
22-2 rule shall prescribe information to be provided to a person when
22-3 the person files a complaint with the board.
22-4 (d) The board shall provide reasonable assistance to a
22-5 person who wishes to file a complaint with the board.
22-6 Art. 4524B. COMPLAINT INVESTIGATION AND DISPOSITION.
22-7 (a) The board shall adopt rules concerning the investigation of a
22-8 complaint filed with the board. The rules adopted under this
22-9 subsection shall:
22-10 (1) distinguish between categories of complaints;
22-11 (2) ensure that complaints are not dismissed without
22-12 appropriate consideration;
22-13 (3) require that the board be advised of a complaint
22-14 that is dismissed and that a letter be sent to the person who filed
22-15 the complaint explaining the action taken on the dismissed
22-16 complaint;
22-17 (4) ensure that the person who filed the complaint has
22-18 an opportunity to explain the allegations made in the complaint;
22-19 and
22-20 (5) prescribe guidelines concerning the categories of
22-21 complaints that require the use of a private investigator and the
22-22 procedures for the board to obtain the services of a private
22-23 investigator.
22-24 (b) The board shall dispose of all complaints in a timely
22-25 manner. The board shall establish a timeline for conducting each
22-26 phase of a complaint that is under the control of the board not
22-27 later than the 30th day after the date the complaint is received by
23-1 the board. The timeline shall be kept in the information file for
23-2 the complaint and all parties shall be notified of the projected
23-3 time requirements for pursuing the complaint. A change in the
23-4 timeline must be noted in the complaint information file and all
23-5 parties to the complaint must be notified not later than the
23-6 seventh day after the date the change is made.
23-7 (c) The executive director of the board shall notify the
23-8 board of a complaint that extends beyond the time prescribed by the
23-9 board for resolving the complaint so that the board may take
23-10 necessary action on the complaint.
23-11 Art. 4524C. INFORMAL PROCEEDINGS. (a) The board by rule
23-12 shall adopt procedures governing:
23-13 (1) informal disposition of a contested case under
23-14 Section 13(e), Administrative Procedure and Texas Register Act
23-15 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
23-16 subsequent amendments; and
23-17 (2) informal proceedings held in compliance with
23-18 Section 18(c), Administrative Procedure and Texas Register Act
23-19 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
23-20 subsequent amendments.
23-21 (b) Rules adopted under this article must provide the
23-22 complainant and the licensee an opportunity to be heard and must
23-23 require the presence of a representative of the board's legal staff
23-24 or of the office of the attorney general to advise the board or the
23-25 board's employees.
23-26 Art. 4524D. MONITORING OF LICENSEE. The board by rule shall
23-27 develop a system for monitoring licensees' compliance with the
24-1 requirements of this chapter. Rules adopted under this article
24-2 shall include procedures for monitoring a licensee who is ordered
24-3 by the board to perform certain acts to ascertain that the licensee
24-4 performs the required acts and to identify and monitor licensees
24-5 who represent a risk to the public.
24-6 SECTION 10. Article 4525, Revised Statutes, is amended by
24-7 amending Subsections (a), (b), and (e) and adding Subsection (k) to
24-8 read as follows:
24-9 (a) The board <of nurse examiners> may refuse to admit
24-10 persons to its examinations, may refuse to issue a license or
24-11 certificate of registration or to issue a certificate of renewal
24-12 <re-registration>, may refuse to issue a temporary permit, license
24-13 by endorsement, or license, may issue a warning or reprimand with
24-14 or without stipulations, may suspend for any period not to exceed 5
24-15 years, or may revoke the license or certificate of any practitioner
24-16 of professional nursing, for any of the following reasons:
24-17 (1) The violation of any of the provisions of this
24-18 law, any rule, regulation not inconsistent with this law, or order
24-19 issued hereinunder.
24-20 (2) Is guilty of fraud or deceit in procuring or
24-21 attempting to procure a license to practice professional nursing.
24-22 (3) Conviction of a crime of the grade of felony, or a
24-23 crime of lesser grade which involves moral turpitude, or any
24-24 conduct resulting in the revocation of probation imposed pursuant
24-25 to such conviction.
24-26 (4) The use of any nursing license, certificate,
24-27 diploma or permit, or transcript of such license, certificate,
25-1 diploma or permit, which has been fraudulently purchased, issued,
25-2 counterfeited, or materially altered.
25-3 (5) The impersonation of, or the acting as a proxy
25-4 for, another in any examination required by law to obtain a license
25-5 to practice professional nursing.
25-6 (6) Aiding or abetting, directly or indirectly, or in
25-7 any manner whatsoever, any unlicensed person in connection with the
25-8 unauthorized practice of professional nursing.
25-9 (7) Revocation, suspension, or denial of or any other
25-10 action relating to the license to practice nursing in another
25-11 jurisdiction. Certified copy of the order of denial, suspension,
25-12 revocation, or any other action shall be conclusive evidence
25-13 thereof.
25-14 (8) Intemperate use of alcohol or drugs that the board
25-15 determines endangers or could endanger patients. Intemperate use
25-16 includes but is not limited to practicing professional nursing or
25-17 being on duty or call while under the influence of alcohol or
25-18 drugs.
25-19 (9) Unprofessional or dishonorable conduct which, in
25-20 the opinion of the board, is likely to deceive, defraud, or injure
25-21 patients or the public.
25-22 (10) Adjudication of mental incompetency.
25-23 (11) Lack of fitness to practice by reason of mental
25-24 or physical health that could result in injury to patients or the
25-25 public.
25-26 (12) Failing to care adequately for patients or to
25-27 conform to the minimum standards of acceptable professional nursing
26-1 practice that, in the opinion of the board, exposes a patient or
26-2 other person unnecessarily to risk of harm.
26-3 (b) Proceedings under this article shall be begun by filing
26-4 a written complaint with the board <of nurse examiners>. Such
26-5 complaint may be made by any person or filed by the board on its
26-6 own initiative. Unless it would jeopardize an investigation, the
26-7 board shall notify the registered nurse that a complaint has been
26-8 filed and the nature of the complaint after a determination of the
26-9 identity of the subject of the complaint. <An information file
26-10 about each complaint filed relating to a licensee shall be
26-11 maintained by the board. If a written complaint is filed with the
26-12 board relating to a licensee, the board at least as frequently as
26-13 quarterly and until final disposition of the complaint, shall
26-14 notify the party that filed the complaint of the status of the file
26-15 unless notice would jeopardize an investigation.> The board shall
26-16 make a timely and appropriate preliminary investigation of the
26-17 complaint and may issue a warning or reprimand to the person
26-18 against whom the complaint was filed. If the investigation reveals
26-19 probable cause to take further disciplinary action, the board shall
26-20 either attempt an informal disposition of the complaint or file
26-21 formal charges against the registered nurse stating the provisions
26-22 of this chapter or the board's rules that are alleged to have been
26-23 violated and a brief description of the acts or omissions that
26-24 constituted the violation. If the board proposes to refuse to
26-25 admit a person to its examination, to refuse to issue a temporary
26-26 permit, license, certificate of registration, certificate of
26-27 re-registration, or to suspend or revoke a person's permit,
27-1 license, or certificate, the person is entitled to a hearing before
27-2 the State Office of Administrative Hearings <board. The hearing
27-3 may be before a subcommittee of the board, a majority of which is
27-4 composed of registered nurses. The person shall on request be
27-5 granted a hearing before the entire board>. Proceedings for a
27-6 disciplinary action are governed by the Administrative Procedure
27-7 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
27-8 Statutes). The board may assess a person found to have violated
27-9 any provision of this chapter the administrative costs of
27-10 conducting a hearing to determine that violation. If a licensed
27-11 professional nurse voluntarily surrenders his or her license to the
27-12 board and executes a sworn statement that he or she no longer
27-13 desires to be licensed, the board may revoke his or her license
27-14 without the necessity of formal charges, notice, or opportunity of
27-15 hearing.
27-16 (e) The board <of nurse examiners> is charged with the duty
27-17 of aiding in the enforcement of the provisions of this chapter, and
27-18 may retain legal counsel to represent the board, but prior to
27-19 retaining outside legal counsel, the board shall request the
27-20 attorney general to perform such services and may only retain
27-21 outside counsel if the attorney general so certifies to the board
27-22 that the attorney general cannot provide such services. The board
27-23 shall have the power to issue subpoenas, compel the attendance of
27-24 witnesses, administer oaths to persons giving testimony at
27-25 hearings, and cause the prosecution of all persons violating any
27-26 provisions of this chapter. It shall keep a record of all its
27-27 proceedings and make an annual report to the Governor. Any member
28-1 of the board may present to a prosecuting officer complaints
28-2 relating to violations of any of the provisions of this chapter,
28-3 and the board through its members, officers, counsel, or agents
28-4 shall assist in the trial of any cases involving alleged violation
28-5 of this chapter, subject to the control of the prosecuting
28-6 officers. The Attorney General is directed to render such legal
28-7 assistance as may be necessary in enforcing and making effective
28-8 the provisions of this chapter; provided that this shall not
28-9 relieve the local prosecuting officers of any of their duties under
28-10 the law as such.
28-11 (k) The schedule of sanctions adopted by the board by rule
28-12 shall be used by the State Office of Administrative Hearings for
28-13 any sanction imposed as the result of a hearing conducted by that
28-14 office.
28-15 SECTION 11. Section 1, Article 4525a, Revised Statutes, is
28-16 amended to read as follows:
28-17 Sec. 1. REGISTERED NURSES; DUTY TO REPORT VIOLATIONS.
28-18 (a) Each registered nurse having reasonable cause to suspect that
28-19 a registered nurse has exposed or is likely to expose a patient or
28-20 other person unnecessarily to a risk of harm because of
28-21 unprofessional conduct, failure to care adequately for a patient,
28-22 failure to conform to the minimum standards of acceptable
28-23 professional nursing practice, or impaired status shall report in a
28-24 signed, written report to the board the name of the nurse
28-25 committing the violation or suspected violation and any other
28-26 pertinent information within the nurse's knowledge as the board may
28-27 require. A registered nurse without personal knowledge of the
29-1 nurse's actions is not required to report under this section if she
29-2 or he has reasonable cause to believe the nurse has already been
29-3 reported.
29-4 (b) The board shall adopt rules governing reporting required
29-5 under this article to minimize unnecessary duplicative reporting
29-6 and the reporting of minor incidents. A "minor incident" means
29-7 conduct that does not indicate the nurse's continuing to practice
29-8 professional nursing poses a risk of harm to a client or other
29-9 person.
29-10 SECTION 12. Chapter 7, Title 71, Revised Statutes, is
29-11 amended by adding Article 4525c to read as follows:
29-12 Art. 4525c. MEMORANDUM OF UNDERSTANDING. The board shall
29-13 sign a memorandum of understanding with state agencies that
29-14 license, register, or certify a facility required by law to have a
29-15 registered nurse peer review committee. The memorandum of
29-16 understanding shall:
29-17 (1) state the actions the board and agency shall take
29-18 to encourage compliance with the requirement to have a registered
29-19 nurse peer review committee; and
29-20 (2) be adopted as a rule of the board and the agency.
29-21 SECTION 13. Chapter 7, Title 71, Revised Statutes, is
29-22 amended by adding Article 4525e to read as follows:
29-23 Art. 4525e. TEMPORARY SUSPENSION OF LICENSE. If the
29-24 majority of the board or a three-member committee of board members
29-25 designated by the board determines from the evidence or information
29-26 presented to it that a registered nurse by continuation in practice
29-27 would constitute a continuing and imminent threat to the public
30-1 welfare, the board or the three-member committee shall temporarily
30-2 suspend the license of the registered nurse. The license may be
30-3 suspended under this article without notice or hearing on the
30-4 complaint, provided institution of proceedings for a hearing before
30-5 the State Office of Administrative Hearings is initiated
30-6 simultaneously with the temporary suspension and provided that a
30-7 hearing is held as soon as can be accomplished under this chapter
30-8 and the Administrative Procedure and Texas Register Act (Article
30-9 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
30-10 amendments. The State Office of Administrative Hearings shall hold
30-11 a preliminary hearing not later than the 14th day after the date of
30-12 the temporary suspension to determine if probable cause exists that
30-13 a continuing and imminent threat to the public welfare still
30-14 exists. A final hearing on the matter shall be held not later than
30-15 the 61st day after the date of temporary suspension.
30-16 SECTION 14. Article 4526, Revised Statutes, is amended to
30-17 read as follows:
30-18 Art. 4526. LICENSE RENEWAL <Re-registration>. The board by
30-19 rule may <shall> adopt a system under which licenses expire on
30-20 various dates during the year <issued by the board shall be renewed
30-21 each biennium>. <For the year in which the expiration date is
30-22 changed, registration fees payable on or before March 31 shall be
30-23 prorated on a monthly basis so that each registrant shall pay only
30-24 that portion of the re-registration fee that is allocable to the
30-25 months in which the registration is valid. On the new expiration
30-26 date, the total re-registration fee is payable. The board shall
30-27 notify each licensee at least 30 days in advance of the date of
31-1 expiration of the license. The application for re-registration
31-2 shall be mailed by United States mail to the address shown in the
31-3 board's records. Any application received after the expiration
31-4 date shall be charged a late fee.> If a person's license has been
31-5 expired for <not more than> 90 days or less, the person may renew
31-6 the license by paying to the board the required renewal fee and a
31-7 fee that is one-half the amount charged by the board or a designee
31-8 for examination <fee> for the license. If a license has been
31-9 expired for <more than> 90 days but less than one year <two years>,
31-10 the person may renew the license by paying to the board all unpaid
31-11 renewal fees and a fee that is equal to the amount charged by the
31-12 board or a designee for examination <fee> for the license. The
31-13 board shall by rule set a length of time beyond which an expired
31-14 license may not be renewed. The board may establish by rule
31-15 additional requirements that shall apply to the renewal of a
31-16 license that has been expired for more than one year but less than
31-17 the time limit set by the board beyond which a license may not be
31-18 renewed <If a license has been expired for two years or more, the
31-19 person may renew the license on meeting the requirements that the
31-20 board considers necessary>. The person may obtain a new license by
31-21 submitting to reexamination and complying with the requirements and
31-22 procedures for obtaining an original license. However, the board
31-23 may renew without reexamination an expired license of a person who
31-24 was licensed in this state, moved to another state, and is
31-25 currently licensed and has been in practice in the other state for
31-26 the two years preceding application. The person must pay to the
31-27 board a fee that is equal to the initial fee for the license and
32-1 the renewal fee. At least 30 days before the expiration of the
32-2 person's license, the board shall send written notice of the
32-3 impending license expiration to the person at the person's last
32-4 known address according to the records of the board. If any
32-5 registered nurse continues to practice professional nursing beyond
32-6 the time for which the nurse is registered <or re-registered>, the
32-7 nurse shall be considered to be an illegal practitioner and the
32-8 license may be revoked or suspended.
32-9 SECTION 15. Article 4527, Revised Statutes, is amended to
32-10 read as follows:
32-11 Art. 4527. Fees
32-12 Sec. 1. The board by rule shall establish reasonable and
32-13 necessary fees so that the fees, in the aggregate, produce
32-14 sufficient revenue to cover the cost of administering this chapter.
32-15 The board may not set a fee for an amount less than the amount of
32-16 that fee on September 1, 1993. <The Board of Nurse Examiners shall
32-17 establish reasonable and necessary fees for the administration of
32-18 its functions in amounts not to exceed:>
32-19 <Admission fee to examination ......................... $200>
32-20 <Duplicate or substitute of current certificate ....... 25>
32-21 <Duplicate or substitute of permanent certificate ..... 25>
32-22 <Duplicate permits .................................... 15>
32-23 <Endorsement with or without examination .............. 150>
32-24 <Re-registration ...................................... 50>
32-25 <Issuance of a temporary permit under Art. 4523 ....... 25>
32-26 <Reactivating from inactive status .................... 30>
32-27 <Accreditation of new schools and programs ............ 150>
33-1 <Filing of affidavits in re-change of name ............ 10>
33-2 <Verification of records .............................. 50>
33-3 <Bad checks ........................................... 25>
33-4 <Advanced Nurse Practitioner-initial credentials ...... 50>
33-5 <Advanced Nurse Practitioner-renewal of credentials ... 25>
33-6 <Issuance of declaratory order of eligibility>
33-7 <for license ........................................ 25>
33-8 Sec. 2. The board may receive gifts, grants, or other funds
33-9 or assets <The Board shall not maintain unnecessary fund balances,
33-10 and fee amounts shall be set in accordance with this
33-11 requirement. The Board shall set and collect a sales charge for
33-12 copies of any paper or record in the office of the Board and for
33-13 any printed material published by the Board. The charges are to be
33-14 in an amount considered sufficient to reimburse the Board for its
33-15 actual expenses>.
33-16 Sec. 3. All fees received by said Board under this law
33-17 shall be placed in the State Treasury to the credit of a special
33-18 fund to be known as the "Professional Nurse Registration Fund" and
33-19 the Comptroller shall upon requisition of the Board from time to
33-20 time draw warrants upon the State Treasurer for the amounts
33-21 specified in such requisition; provided, however, all fees
33-22 collected by the Board and deposited in the Professional Nurse
33-23 Registration Fund shall be expended as specified by itemized
33-24 appropriation in the General Appropriations Act and shall be used
33-25 by the Board, and under its directions, only for purposes of
33-26 carrying out this Act. <The Board may use any of the fees and
33-27 charges collected by it, as necessary, to retain, hire, or contract
34-1 for additional prosecutors, hearing examiners, investigators, and
34-2 support staff as necessary to aid in the investigation of
34-3 complaints and the prosecution of persons subject to the Board's
34-4 jurisdiction. This provision shall apply to all fees of whatsoever
34-5 nature as permitted by law. The financial transactions of the
34-6 Board are subject to audit by the state auditor in accordance with
34-7 Chapter 321, Government Code.>
34-8 SECTION 16. Article 4527b, Revised Statutes, is amended to
34-9 read as follows:
34-10 Art. 4527b. PENALTIES <Penalty>. (a) A person who violates
34-11 any provision of Article 4527a, Revised Statutes, commits an
34-12 offense. Except as provided by this section, an offense under that
34-13 article is a Class A misdemeanor. If it is shown in the trial of a
34-14 person allegedly in violation of that article that the person has
34-15 once before been convicted of a violation of Article 4527a, on
34-16 conviction the person shall be punished for a third degree felony.
34-17 Each day of violation constitutes a separate offense. On final
34-18 conviction of an offense under that article, a person forfeits all
34-19 rights and privileges conferred by virtue of licensure under this
34-20 chapter.
34-21 (b) A person who violates Article 4527a, Revised Statutes,
34-22 is liable to the state for a civil penalty that does not exceed
34-23 $1,000 a day. The civil penalty may be collected in a suit
34-24 initiated by the board.
34-25 SECTION 17. Chapter 7, Title 71, Revised Statutes, is
34-26 amended by adding Article 4527d to read as follows:
34-27 Art. 4527d. ADMINISTRATIVE PENALTIES. (a) The board may
35-1 impose an administrative penalty against a person licensed or
35-2 regulated under this article who violates this article or a rule or
35-3 order adopted under this article.
35-4 (b) The penalty for each violation may be in an amount not
35-5 to exceed $2,500. Each day a violation continues or occurs is a
35-6 separate violation for purposes of imposing a penalty.
35-7 (c) The amount of the penalty shall be based on:
35-8 (1) the seriousness of the violation, including the
35-9 nature, circumstances, extent, and gravity of any prohibited acts,
35-10 and the hazard or potential hazard created to the health, safety,
35-11 or economic welfare of the public;
35-12 (2) the economic harm to property or the environment
35-13 caused by the violation;
35-14 (3) the history of previous violations;
35-15 (4) the amount necessary to deter future violations;
35-16 (5) efforts to correct the violation; and
35-17 (6) any other matter that justice may require.
35-18 (d) The executive director who determines that a violation
35-19 has occurred may issue to the board a report that states the facts
35-20 on which the determination is based and the director's
35-21 recommendation on the imposition of a penalty, including a
35-22 recommendation on the amount of the penalty.
35-23 (e) Within 14 days after the date the report is issued, the
35-24 executive director shall give written notice of the report to the
35-25 person. The notice may be given by certified mail. The notice
35-26 must include a brief summary of the alleged violation and a
35-27 statement of the amount of the recommended penalty and must inform
36-1 the person that the person has a right to a hearing on the
36-2 occurrence of the violation, the amount of the penalty, or both the
36-3 occurrence of the violation and the amount of the penalty.
36-4 (f) Within 20 days after the date the person receives the
36-5 notice, the person in writing may accept the determination and
36-6 recommended penalty of the executive director or may make a written
36-7 request for a hearing on the occurrence of the violation, the
36-8 amount of the penalty, or both the occurrence of the violation and
36-9 the amount of the penalty.
36-10 (g) If the person accepts the determination and recommended
36-11 penalty of the executive director, the board by order shall approve
36-12 the determination and impose the recommended penalty.
36-13 (h) If the person requests a hearing or fails to respond
36-14 timely to the notice, the executive director shall set a hearing
36-15 and give notice of the hearing to the person. The hearing shall be
36-16 held by an administrative law judge of the State Office of
36-17 Administrative Hearings. The administrative law judge shall make
36-18 findings of fact and conclusions of law. The administrative law
36-19 judge shall promptly issue to the board a proposal for a decision
36-20 about the occurrence of the violation and the amount of a proposed
36-21 penalty. Based on the findings of fact, conclusions of law, and
36-22 proposal for a decision, the board by order may find that a
36-23 violation has occurred and impose a penalty or may find that no
36-24 violation occurred.
36-25 (i) The notice of the board's order given to the person
36-26 under the Administrative Procedure and Texas Register Act (Article
36-27 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
37-1 amendments must include a statement of the right of the person to
37-2 judicial review of the order.
37-3 (j) Within 30 days after the date the board's order is final
37-4 as provided by Section 16(c), Administrative Procedure and Texas
37-5 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
37-6 person shall:
37-7 (1) pay the amount of the penalty;
37-8 (2) pay the amount of the penalty and file a petition
37-9 for judicial review contesting the occurrence of the violation, the
37-10 amount of the penalty, or both the occurrence of the violation and
37-11 the amount of the penalty; or
37-12 (3) without paying the amount of the penalty, file a
37-13 petition for judicial review contesting the occurrence of the
37-14 violation, the amount of the penalty, or both the occurrence of the
37-15 violation and the amount of the penalty.
37-16 (k) Within the 30-day period, a person who acts under
37-17 Subsection (j)(3) of this section may:
37-18 (1) stay enforcement of the penalty by:
37-19 (A) paying the amount of the penalty to the
37-20 court for placement in an escrow account; or
37-21 (B) giving to the court a supersedeas bond
37-22 approved by the court for the amount of the penalty and that is
37-23 effective until all judicial review of the board's order is final;
37-24 or
37-25 (2) request the court to stay enforcement of the
37-26 penalty by:
37-27 (A) filing with the court a sworn affidavit of
38-1 the person stating that the person is financially unable to pay the
38-2 amount of the penalty and is financially unable to give the
38-3 supersedeas bond; and
38-4 (B) giving a copy of the affidavit to the
38-5 executive director by certified mail.
38-6 (l) The executive director who receives a copy of an
38-7 affidavit under Subsection (k)(2) of this section may file with the
38-8 court, within five days after the date the copy is received, a
38-9 contest to the affidavit. The court shall hold a hearing on the
38-10 facts alleged in the affidavit as soon as practicable and shall
38-11 stay the enforcement of the penalty on finding that the alleged
38-12 facts are true. The person who files an affidavit has the burden
38-13 of proving that the person is financially unable to pay the amount
38-14 of the penalty and to give a supersedeas bond.
38-15 (m) If the person does not pay the amount of the penalty and
38-16 the enforcement of the penalty is not stayed, the executive
38-17 director may refer the matter to the attorney general for
38-18 collection of the amount of the penalty.
38-19 (n) Judicial review of the order of the board:
38-20 (1) is instituted by filing a petition as provided by
38-21 Section 19, Administrative Procedure and Texas Register Act
38-22 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
38-23 subsequent amendments; and
38-24 (2) is under the substantial evidence rule.
38-25 (o) If the court sustains the occurrence of the violation,
38-26 the court may uphold or reduce the amount of the penalty and order
38-27 the person to pay the full or reduced amount of the penalty. If
39-1 the court does not sustain the occurrence of the violation, the
39-2 court shall order that no penalty is owed.
39-3 (p) When the judgment of the court becomes final, the court
39-4 shall proceed under this subsection. If the person paid the amount
39-5 of the penalty and if that amount is reduced or is not upheld by
39-6 the court, the court shall order that the appropriate amount plus
39-7 accrued interest be remitted to the person. The rate of the
39-8 interest is the rate charged on loans to depository institutions by
39-9 the New York Federal Reserve Bank, and the interest shall be paid
39-10 for the period beginning on the date the penalty was paid and
39-11 ending on the date the penalty is remitted. If the person gave a
39-12 supersedeas bond and if the amount of the penalty is not upheld by
39-13 the court, the court shall order the release of the bond. If the
39-14 person gave a supersedeas bond and if the amount of the penalty is
39-15 reduced, the court shall order the release of the bond after the
39-16 person pays the amount.
39-17 (q) A penalty collected under this section shall be remitted
39-18 to the comptroller for deposit in the general revenue fund.
39-19 (r) All proceedings under this section are subject to the
39-20 Administrative Procedure and Texas Register Act (Article 6252-13a,
39-21 Vernon's Texas Civil Statutes) and its subsequent amendments.
39-22 SECTION 18. Article 4516, Revised Statutes, is repealed.
39-23 SECTION 19. The changes in law made by this Act in the
39-24 qualifications of members of the Board of Nurse Examiners do not
39-25 affect the entitlement of a member appointed before September 1,
39-26 1993, to continue to hold office to the term to which the member
39-27 was appointed. The change in qualifications applies only to a
40-1 member appointed on or after September 1, 1993.
40-2 SECTION 20. This Act takes effect September 1, 1993.
40-3 SECTION 21. The importance of this legislation and the
40-4 crowded condition of the calendars in both houses create an
40-5 emergency and an imperative public necessity that the
40-6 constitutional rule requiring bills to be read on three several
40-7 days in each house be suspended, and this rule is hereby suspended.