Section 213.28 - Licensure of Individuals with Criminal History(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.22 Tex. Admin. Code § 213.28
The provisions of this §213.28 adopted to be effective September 1, 1998, 23 TexReg 6444; amended to be effective July 20, 1999, 24 TexReg 5473; amended to be effective November 14, 2002, 27 TexReg 10594; amended to be effective May 17, 2004, 29 TexReg 4884; amended to be effective March 14, 2007, 32 TexReg 1304; amended to be effective October 10, 2007, 32 TexReg 7058; amended to be effective July 2, 2008, 33 TexReg 5007; amended to be effective July 10, 2013, 38 TexReg 4327; Amended by Texas Register, Volume 40, Number 43, October 23, 2015, TexReg 7407, eff. 10/29/2015; Adopted by Texas Register, Volume 43, Number 07, February 16, 2018, TexReg 867, eff. 2/25/2018; Amended by Texas Register, Volume 46, Number 47, November 19, 2021, TexReg 7876, eff. 11/24/2021; Amended by Texas Register, Volume 47, Number 41, October 14, 2022, TexReg 6882, eff. 10/18/2022