Texas Professional License Defense Lawyer Blog

Texas physicians and pharmacists should be aware of a set of new laws passed by the 81st session of the Texas Legislature which allows a doctor to delegate drug therapy decisions to pharmacists in certain limited situations. Senate Bill No. 381 adds new sections to both the Medical Practice Act and Pharmacy Act implementing this new option for physicians and pharmacists. How the Texas Medical Board and the Texas State Board of Pharmacy will regulate / police this area remains to be seen.

The key features of the new law are as follows:

• It is limited to dangerous drugs only, not scheduled medications;
• The delegating physician is required to have previously made an initial diagnosis and patient assessment and also formulated a medication plan;
• The pharmacist must practice in a hospital, hospital-based clinic, or an academic health care institution;
• The pharmacist's place of employment must have both bylaws and a medical staff policy that permits a physician to delegate to a pharmacist the management of a patient's drug therapy;
• The pharmacist must provide both the delegating physician's and the pharmacist's contact information on each prescription signed by the pharmacist; and
• The pharmacist must provide a copy of the delegation protocol to the Texas State Board of Pharmacy for their approval.

The Pharmacy Board will also maintain a publically available list of pharmacists authorized to sign a prescription drug order pursuant to the new law.

By the start of next year, the Texas State Board of Pharmacy (TSBP) is also required to adopt appropriate administrative rules establishing more definite criteria and procedures to govern when a pharmacist operating under this new law is permitted to implement or modify a drug therapy plan initiated by the delegating physician.

While this is a welcome addition to medical staff's toolkit, physicians and pharmacists should pay careful attention to ensuring their compliance with the statute and its corresponding rules or else they could face a costly and potentially damaging investigation and disciplinary action by the Texas Medical Board and the Texas State Board of Pharmacy.

When the applicable licensing agency refuses to back down sometimes the only avenue for relief available for a Texas professional is through the filing of a declaratory judgment action in District Court. This is an extraordinary remedy as it involves significant time and money on the part of the professional and their attorneys; however, in certain cases it could be the only way to obtain a favorable result. This frequently occurs when the relevant state licensing agency / board is exercising its jurisdiction in a manner that is not authorized by their enacting statute.

A prime example of this scenario recently occurred in connection with my firm's representation of a licensed real estate salesperson before the Texas Real Estate Commission. Through a misunderstanding of the renewal process, my client failed to timely renew his license. After subsequently filing for late renewal with TREC, his background check yielded a previously undisclosed, but minor, misdemeanor from several years prior. Based on this criminal matter and my client's failure to disclose the same, TREC initiated a disciplinary investigation and refused to renew his license pending a final determination.

Knowing, however, that the salesperson would be unable to work until his license was renewed, TREC presented him with an unreasonable settlement offer which would have placed his license on probation for five years, required him to notify all employees of the existence and reason for the Order, and restricted his ability to apply for a broker's license. In the meantime, my client's broker terminated his employment and refused to pay substantial sums owed to him based on their argument that according to TREC he was not a licensed salesperson at the time the transactions occurred and therefore was not entitled to the money.

Thus pressed to the wall by TREC's unreasonable offer and simultaneous refusal to renew his license absent his acceptance, my firm filed a declaratory judgment action in District Court challenging the legality of TREC's actions. Under both the Administrative Procedure Act (an overarching statute applying to most state licensing agencies) and the Texas Real Estate Act it was clear that TREC was not allowed to refuse to renew a license when the salesperson renewed within one year of the expiration date and paid the applicable statutory late fee. The Texas Attorney General's Office, the state entity charged with defending state licensing agencies in District Court, tacitly agreed when, on behalf of TREC, they consented to retroactively renew my client's license and drop the original disciplinary action in exchange for a non-suit and waiver of attorney's fees. In addition to regaining his salesperson license, my client is now in an excellent position to reclaim the money originally denied him by his broker.

The declaratory judgment action is an extraordinary remedy. Although a successful claimant is eligible to win attorney's fees from the losing party, it is still a potentially costly and time consuming process. Nevertheless, as I believe this case illustrates, in certain situations a professional licensee may have little choice but to go forward and challenge illegal agency action in District Court.

A little known but potentially very helpful facet of Chapter 411 of the Texas Government Code is its provisions regarding access by the Texas Real Estate Commission and Texas Department of Insurance to criminal records that are subject to an Order of Non-Disclosure. Simply put, the Texas Department of Public Safety- the state agency which serves as the central repository of criminal records in Texas- is prohibited from providing criminal history information subject to an Order of Non-Disclosure to either TREC or TDI when either agency conducts a background check with DPS.

Section 411.081 of the Texas Government Code is the provision specifically addressing who is eligible for an Order of Non-Disclosure and which state agencies are allowed to receive such information as part of a background check with DPS. Although there are specific exceptions, generally speaking a person is entitled to an Order of Non-Disclosure if: 1) they have a criminal matter which was resolved through their placement on deferred adjudication community supervision, and 2) they have successfully completed the terms of their supervision. Tex. Gov't Code § 411.081(d). This is beneficial to the insurance agent, adjuster, broker, real estate salesperson, and other individuals licensed by the Texas Real Estate Commission (TREC) and Department of Insurance (TDI) as once the Order is in place only those agencies specifically listed in subpart (i) of the statute have access to the covered criminal records. Id. at § 411.081(i). Neither TREC or TDI are included on this list. Id.

During my extensive practice as a professional licensing attorney before TREC and TDI, I have found this to be particularly helpful in the cases of licensees coming up for renewal or who are originally applying for a license. A timely Order of Non-Disclosure can prevent either TREC or TDI from obtaining the non-disclosed records through the fingerprint background checks routinely requested as part of their licensing and renewal procedures. This can be a relatively inexpensive and prudent way to prevent unnecessary delay and even disciplinary action as a result of the charges that led to the licensee being placed on deferred adjudication.

Unfortunately, the Non-Disclosure statute does not prevent TDI or TREC from using criminal history record information already in their possession even if the licensee has subsequently had an Order of Non-Disclosure entered a the court. This is because an Order of Non-Disclosure only affects what may disclosed by DPS to state agencies following a request for a criminal background check. It does not prevent state agencies like TREC or TDI from utilizing criminal history already in their possession.

Any professional licensed by the Texas Department of Insurance or Texas Real Estate Commission who has successfully completed a period of deferred adjudication for a criminal offense of which neither of the agencies is already aware should strongly consider contacting a professional license defense attorney to help decide whether an Order of Non-Disclosure could be beneficial. An experienced administrative law attorney can give valuable advice as to whether the pursuit of a Non-Disclosure Order would be a prudent prophylactic measure to prevent undue hassle with TDI or TREC prior to applying for renewal or submitting an original application for licensure.

Recently the Austin American Statesman interviewed me in detail regarding my representation of numerous dentists before the Texas State Board of Dental Examiners (TSBDE) for whom I had been the attorney of record. During the interview I also spoke to the reporter about several cases that were still in the investigative stage and as such she would not have known anything about the case or that I was the attorney representing the dentist in front of the TSBDE as the investigation(s) are confidential pursuant to the texas_detal_practice_act_254.pdf Most were disciplinary cases involving general dentists or oral surgeons who had been accused of violations of the Dental Practice Act involving the abuse of their DEA / DPS controlled substances prescribing authority, fraud, the intemperate use of drugs and alcohol or their arrest / plea of guilty to a criminal offense. The article focused on the status of the dentist's license to practice medicine as regulated by the Texas Dental Board.

During this interview I clearly told the reporter several things that were either overlooked or ignored which led to a sensational and inaccurate version of many of the events covered. The article was then syndicated by a number of newspapers and readers throughout Texas (see below) which yielded in what I believe to be a widespread misunderstanding of the disciplinary authority vested in the TSBDE as well as their use of that authority with respect to disciplinary / license investigations.

The article implied that the Dental Board was slow to act and/or failed to impose disciplinary sanctions commensurate with the dentist's transgressions. The article cited to a case which is still in the throes of a disciplinary investigation and as such is privileged pursuant to statute. I made this overly clear to the reporter, yet she continued to trash the dentist and the Board for what she called an apparent failure to act responsibly. Since that time the TSBDE has taken appropriate action in that case and the DPS has also initiated measures consistent with its statutes and rules. The unfortunate fact is that I told the reported that appropriate discipline was imminent, yet this reality was ignored for a hyped article which seemed to be geared towards angering readers rather than unveiling the truth.

The reporter then began to compare the Texas Medical Board's disciplinary authority and their aggressive use of that authority against licensed physicians to the TSBDE's recent history of issuing suspend probate orders to dentist's who have received treatment for drug or alcohol use, substance misuse or chemical dependency. I made it clear to her that the Texas Medical Board (TMB) had a vehicle by which they could issue private, non-public, confidential rehabilitation orders that were exempt from the Freedom of Information Act, but such an option was not available to the Dental Board. Thus the idea of comparing statistics was unfair and that the TMB public disciplinary orders related to substance abuse were likely to be harsh due to the physician not being granted a private rehab order.

Fortunately, the former Executive Director of the Texas Medical Board, Donald Patrick (a physician and an attorney) explained that the Dental Board was largely underfunded and would benefit from the receipt of extra monies from the legislature to beef of the number of its attorneys / lawyers and administrative legal staff. Dr. Patrick went on to say that until the TMB was able to hire more seasoned attorneys that the agency was at an unfair advantage and was often overworked or out-maneuvered.

Finally, I informed the journalist that both the TMB and the TSBDE recognized substance abuse / chemical dependency as a treatable disease and as such attempted to allow for rehabilitation as opposed to the discipline of the physician or dentist's license to practice medicine. I also made clear that the legislature clearly authorized peer assistance programs pursuant to the Health & Safety Code Chapter 467, but unfortunately no mention was made of this fact either. For those who believe that we should not bother to rehabilitate our trained medical professionals, it is important to note that the notion of long-term treatment, rehabilitation and the return to work theory was first utilized by the United States Navy with respect to its alcohol dependent pilots in whom our country had invested tremendous resources. Research showed that our pilots, with rigorous treatment and monitoring, performed at heightened levels once their disease process was arrested and recovery could begin. Arguably this is true for Texas' physicians and dentists as well.

Lubbock On Line

El Paso Times

Corpus Christi TV

The Texas Administrative Procedure Act requires that an agency do the following to effetively promulgate and adopt an agency rule :

1. The administrative agency must give at least 30 days' notice of its intention to adopt the proposed rule before that rule goes into force.


2. Such notice must be submitted to the Texas Secretary of State for publication in the Texas Register. Notice begins only on publication.


3. A proposed rule is automatically withdrawn six months after publication in the Texas Register if it is not adopted by the agency or adopted as amended.


4. The agency must allow all interested persons a reasonable opportunity to submit input orally or in writing. If the proposal is substantive, the agency must grant an opportunity for a public hearing if requested to do so by at least 25 people.


5. Legislative Review by the standing committee responsible. The standing committee may, on the vote of a majority of its members, send the agency a statement supporting or opposing the proposed rule.


6. The agency adopts its rule, with reasoned justifications why.

The rule is then published in the Texas Administrative Code and is thus noticed and enforceable by the agency as a matter of law. However, just because the rule is effective does not mean that its existence or the agency's application of it is necessarily legal and within the scope of its legislatively authorized power, Oftentimes a rule challenge or declaratory judgment action can be brought by an experienced professional license defense / administrative law attorney in an effort to overturn or enjoin agency action.

The Texas Pharmacy Board is enabled by the Texas Pharmacy Act. Tex. Occupations Code 551.001 et seq. The board is to regulate the practice of pharmacy and to license pharmacies. It does this through licensing pharmacists and pharmacies, determining and issuing standards for pharmacy education and training, and enforcing the provisions of the Texas Pharmacy Act.

It consists of nine members. Six are pharmacists and the other three are to represent the public. Each serves for six years; the terms are staggered. The Governor appoints the president of the Board from among its members. The president serves at the governor's pleasure. The board shall employ an executive officer, who must be a pharmacist.

Board Action is through the majority of a quorum.

The Board employs a staff that consists of departments including investigations, enforcement and the legal division or General Counsel's office. The legal division employs four attorneys who are responsible for the enforcement of agency action including the discipline of registered pharmacists (R.Ph.) licenses / registrations. The Texas Pharmacy Board attorneys also prosecute pharmacy violations if probable cause exists to believe a violation of the Texas Pharmacy Act has been committed.

The Texas Medical Board is enabled by the Medical Practice Act. Tex. Occupations Code 151.001 et seq. The Board is to regulate the practice of medicine. It does this primarily through granting licenses to practice medicine. It is also responsible for disciplining the erring physicians.

It comprises 12 physicians and 7 public members all appointed by the governor with the advice and consent of the senate. Of the 12 physicians 9 must be MDs and 3 must be DOs (Doctors of Osteopathy). The 7 public members are supposed to represent the public. Each serves for six years; the terms are staggered.

The Governor appoints a President among the members. The members choose a Vice-President and a Secretary-Treasurer among themselves.

The Board has to appoint an Executive Director who serves as the chief executive and administrative officer for the Board.

Quorum for transacting business: Majority + 1. Business transacted if majority of voting and present members pass the motion.

The Board hires a Staff who are responsible for running the agency. Staff comprises departments such as a legal, enforcement, licensing, public affairs and investigations. The legal or litigation division is reposnsible for the prosecution of disciplinary actions against physician licenses by and through its attorneys as well as the defense of decsions not to license by the Board's Licensure Committee.

The complaints and investigations division is reposnisble for opening or investigating all complaints as the investigation process at the TMB is a complaint driven process per the Medical Practice Act. Staff of the Board has the authority to generate its own complaints which has been a great source of controversy of late as there is a widespread belief Staff may abuse this authority.

Some administrative agencies are authorized or created by the Texas Constitution. Most agencies are created by the passing of a legislative bill. Before the bill is passed, however, it is forwarded to the Sunset Advisory Commission. The Commission determines if:

• The proposed agency's functions could be carried out by existing agencies,


• The proposed regulation is the least restrictive to adequately protect the public


• The bill provides for adequate public input regarding any proposed regulatory function, and


• The bill provides for an adequate method of dealing with a conflict of interest within the agency.

The Commission's adverse determination does not prevent the agency from being formed. Nevertheless this process is supposed to provide a check on the Legislature's desire to wantonly form administrative agencies.

Once the bill is passed the Agency can come into existence.

The Texas Board of Nursing (formerly the Board of Nurse Examiners for the State of Texas) is enabled by the Nursing Practice Act. Tex. Occupations Code 301.001. It's responsibility is to regulate nursing and it's charge is the protection of the public health and welfare. It does this by licensing professionals, conducting investigations into potential violations of the Act and initiating hearings to adjudicate contested matters.

The Board is also responsible for accrediting schools of nursing.
It comprises 13 members. Of these 6 are nurse members, 3 are nurse faculty members and 4 are non-nurses to represent the general public. The members are appointed by the Governor with the advice and consent of the senate. Each serves for six years; the terms are staggered.

The Governor appoints a presiding officer. The members appoint an executive director. The board members may employ other personnel as necessary to carry out the functions of the board.

A quorum for transacting business is a majority of the board members three of which will be nurse members. An action will be carried if a majority of quorum members vote for it. Voting will not be allowed if there is a conflict of interest

The Board regulates Registered Nurse, Licensed Vocational Nurse and Advanced Practice designations (RN, LVN and APN designations such as CNS or CRNA). It employs a staff consisting of departments from nursing practice and enforcement to a legal division. The enforcement division is responsible for investigating complaints under the auspices of the attorney's of the Texas Board of Nursing's General Counsel's office.

An administrative agency as defined by the Texas Administrative Procedure Act means a state officer, board, commission or department with statewide jurisdiction that makes rules or determines contested cases. The definition does not include a state agency financed wholly with federal money, the legislature, the courts or institutes of higher learning. Thus localized school boards are not administrative agencies under the Act.

An administrative agency is supposed to bring expertise to a specific regulatory scheme. For example the Texas Medical Board is charged with the regulation of the practice of medicine. Its board members include 12 doctors to better tailor the regulation to the exigencies of a specialized occupation.

An administrative agency can also make rules, conduct hearings to determine violations of those rules and grant licenses to permit entry into the field the agency is regulating. It is also responsible for disciplining and renewing established licensees.