Edith Okechukwu Omietimi v. Texas Board of Nursing
Opinion
ACCEPTED 15-25-00033-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/28/2025 11:45 PM CHRISTOPHER A. PRINE CLERK No. 15-25-00033-CV FILED IN 15th COURT OF APPEALS _____________________________________________________________ AUSTIN, TEXAS 5/28/2025 11:45:43 PM IN THE COURT OF APPEALS FOR THE FIFETEENTH DISTRICT CHRISTOPHER A. PRINE Clerk AUSTIN, TEXAS _____________________________________________________________
EDITH OKECHUKWU OMIETIMI, Appellant
v.
TEXAS BOARD OF NURSING, Appellee ______________________________________________________________
ON APPEAL FROM THE 459TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS CAUSE NO. D-1-GN-24-3659 THE HONORABLE MAYA G. GAMBLE, PRESIDING ______________________________________________________________
APPELLANT’S BRIEF ______________________________________________________________
Marc M. Meyer State Bar No. 24070266 E-mail: marc@marcmeyerlawfirm.com 2300 Woodforest Blvd., Suite 600 MONTGOMERY, TX 77316 Telephone: (281) 259-7575 ATTORNEY FOR APPELLANT EDITH OKECHUKWU OMIETIMI
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
PARTIES ................................................................................................................ iii
INDEX OF AUTHORITIES ..................................................................................iv
GLOSSARY OF ABBREVIATED TERMS ......................................................... x
STATEMENT OF THE NATURE OF THE CASE............................................. 1
STATEMENT REGARDING ORAL ARGUMENTS ......................................... 2
ISSUES PRESENTED ............................................................................................. 2
STATEMENT OF FACTS ...................................................................................... 3
SUMMARY OF ARGUMENT ............................................................................... 7
AUTHORITIES AND ARGUMENT ..................................................................... 8
A. Standard of Review .................................................................................... 8
B. The Nursing Practice Act and Board Rules ............................................. 13
C. Appellant’s Nursing Education was Accepted by the Texas Board of
Nursing During the Endorsement Process under Texas Occupations Code
§ 301.157(d-4) .......................................................................................... 18
D. There is No Authority for the Assertion That Appellant had the Burden of
Persuasion to Show She was Nonetheless Qualified for Licensure Upon
Application for Renewal........................................................................... 22
i E. The Board may not Base Disciplinary Action, including Denial of License
Renewal, When no Violation of Section 301.452(b) is Found. ............... 30
F. Renewal of a Nursing License is a Ministerial Duty and Failure to Renew
Appellant’s License is a Clear Abuse of Discretion ................................ 28
G. Revocation of Appellant’s Nursing License by Denying Renewal of Her
License Violates Appellant’s Due Course of Law Rights Under the Texas
Constitution and is Arbitrary and Capricious ........................................... 34
CONCLUSION....................................................................................................... 41
PRAYER ................................................................................................................. 42
CERTIFICATE OF SERVICE ............................................................................ 43
CERTIFICATE OF COMPLIANCE .................................................................. 44
APPENDICIES.................................................................................................... A-1
ii PARTIES
Appellant:
Edith Okechukwu Omietimi, is an Individual whose address is 3302 Mystic Shadow
Ln., Katy, TX 77494. The Appellant is represented by Marc M. Meyer with the Law
Office of Marc Meyer, PLLC, 2300 Woodforest Blvd., STE 600, Montgomery, TX
77316. Appellant was represented at the State Office of Administrative Hearings for
trial by John Shepperd and Lina Al-Salim with Wilson Elser, 909 Fannin St. STE
3300, Houston, TX 77010.
Appellee:
Texas Board of Nursing (“Board”) is a State Government Agency located at 1801
Congress Ave., Suite 10-200, Austin, Travis County, Texas, 78701. The Appellee is
represented by Kathy Johnson, Assistant Attorney General, with the Office of the
Attorney General of Texas, Administrative Law Division, PO Box 12548, Austin,
TX 78711-2548. Appellee was represented at the State Office of Administrative
Hearings for trial by John Vanderford, Deputy General Counsel, Texas Board of
Nursing, 1801 Congress Ave., STE 10-200, Austin, TX 78701.
iii INDEX OF AUTHORITIES
Attorney General Opinions
TEX.ATT'Y GEN. OP. LO–98–016 (1998) ............................................................ 32
TEX.ATT'Y GEN. OP. JM–166 (1984) .................................................................. 32
Cases
Accident Fund Ins. Co. of Am. v. Tex. Dep’t of Ins., 23-0273, 23-0950 (Tex. Feb
07, 2025) ............................................................................................................11, 31
Alford v. State, 806 S.W.2d 581, 585 (Tex. App.—Dallas, 1991), aff'd, 866 S.W.2d
619 (Tex. Crim. App. 1993)..................................................................................... 24
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ............................. 31
Cargill v. Garland, 57 F. 4th 447, 465–468 (CA5 2023) ....................................... 31
Chalker Energy Partners Iii, LLC v. Le Norman Operating LLC, 595 S.W.3d 668
(Tex. 2020) ............................................................................................................... 22
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)
............................................................................................................................11, 30
City of El Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179 (Tex. 1994) ....10, 41
City of Houston v. Jackson, 192 S.W.3d 764 (Tex.2006) ....................................... 30
City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex.2008) ....................................... 10
Ex Parte Myers, 68 S.W.3d 229 (Tex. App. 2002) ................................................. 12
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997) ............ 21
iv Garrett v. The Tex. State Bd. of Pharm., 03-21-00039-CV, at *12–14 (Tex.App.–
Austin, Jan 25, 2023, no pet.) ......................................................................36, 37, 39
Gen. Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591 (Tex.2001) ....... 21
Greathouse v. Alvin Indep. Sch.
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ACCEPTED 15-25-00033-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/28/2025 11:45 PM CHRISTOPHER A. PRINE CLERK No. 15-25-00033-CV FILED IN 15th COURT OF APPEALS _____________________________________________________________ AUSTIN, TEXAS 5/28/2025 11:45:43 PM IN THE COURT OF APPEALS FOR THE FIFETEENTH DISTRICT CHRISTOPHER A. PRINE Clerk AUSTIN, TEXAS _____________________________________________________________
EDITH OKECHUKWU OMIETIMI, Appellant
v.
TEXAS BOARD OF NURSING, Appellee ______________________________________________________________
ON APPEAL FROM THE 459TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS CAUSE NO. D-1-GN-24-3659 THE HONORABLE MAYA G. GAMBLE, PRESIDING ______________________________________________________________
APPELLANT’S BRIEF ______________________________________________________________
Marc M. Meyer State Bar No. 24070266 E-mail: marc@marcmeyerlawfirm.com 2300 Woodforest Blvd., Suite 600 MONTGOMERY, TX 77316 Telephone: (281) 259-7575 ATTORNEY FOR APPELLANT EDITH OKECHUKWU OMIETIMI
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
PARTIES ................................................................................................................ iii
INDEX OF AUTHORITIES ..................................................................................iv
GLOSSARY OF ABBREVIATED TERMS ......................................................... x
STATEMENT OF THE NATURE OF THE CASE............................................. 1
STATEMENT REGARDING ORAL ARGUMENTS ......................................... 2
ISSUES PRESENTED ............................................................................................. 2
STATEMENT OF FACTS ...................................................................................... 3
SUMMARY OF ARGUMENT ............................................................................... 7
AUTHORITIES AND ARGUMENT ..................................................................... 8
A. Standard of Review .................................................................................... 8
B. The Nursing Practice Act and Board Rules ............................................. 13
C. Appellant’s Nursing Education was Accepted by the Texas Board of
Nursing During the Endorsement Process under Texas Occupations Code
§ 301.157(d-4) .......................................................................................... 18
D. There is No Authority for the Assertion That Appellant had the Burden of
Persuasion to Show She was Nonetheless Qualified for Licensure Upon
Application for Renewal........................................................................... 22
i E. The Board may not Base Disciplinary Action, including Denial of License
Renewal, When no Violation of Section 301.452(b) is Found. ............... 30
F. Renewal of a Nursing License is a Ministerial Duty and Failure to Renew
Appellant’s License is a Clear Abuse of Discretion ................................ 28
G. Revocation of Appellant’s Nursing License by Denying Renewal of Her
License Violates Appellant’s Due Course of Law Rights Under the Texas
Constitution and is Arbitrary and Capricious ........................................... 34
CONCLUSION....................................................................................................... 41
PRAYER ................................................................................................................. 42
CERTIFICATE OF SERVICE ............................................................................ 43
CERTIFICATE OF COMPLIANCE .................................................................. 44
APPENDICIES.................................................................................................... A-1
ii PARTIES
Appellant:
Edith Okechukwu Omietimi, is an Individual whose address is 3302 Mystic Shadow
Ln., Katy, TX 77494. The Appellant is represented by Marc M. Meyer with the Law
Office of Marc Meyer, PLLC, 2300 Woodforest Blvd., STE 600, Montgomery, TX
77316. Appellant was represented at the State Office of Administrative Hearings for
trial by John Shepperd and Lina Al-Salim with Wilson Elser, 909 Fannin St. STE
3300, Houston, TX 77010.
Appellee:
Texas Board of Nursing (“Board”) is a State Government Agency located at 1801
Congress Ave., Suite 10-200, Austin, Travis County, Texas, 78701. The Appellee is
represented by Kathy Johnson, Assistant Attorney General, with the Office of the
Attorney General of Texas, Administrative Law Division, PO Box 12548, Austin,
TX 78711-2548. Appellee was represented at the State Office of Administrative
Hearings for trial by John Vanderford, Deputy General Counsel, Texas Board of
Nursing, 1801 Congress Ave., STE 10-200, Austin, TX 78701.
iii INDEX OF AUTHORITIES
Attorney General Opinions
TEX.ATT'Y GEN. OP. LO–98–016 (1998) ............................................................ 32
TEX.ATT'Y GEN. OP. JM–166 (1984) .................................................................. 32
Cases
Accident Fund Ins. Co. of Am. v. Tex. Dep’t of Ins., 23-0273, 23-0950 (Tex. Feb
07, 2025) ............................................................................................................11, 31
Alford v. State, 806 S.W.2d 581, 585 (Tex. App.—Dallas, 1991), aff'd, 866 S.W.2d
619 (Tex. Crim. App. 1993)..................................................................................... 24
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ............................. 31
Cargill v. Garland, 57 F. 4th 447, 465–468 (CA5 2023) ....................................... 31
Chalker Energy Partners Iii, LLC v. Le Norman Operating LLC, 595 S.W.3d 668
(Tex. 2020) ............................................................................................................... 22
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)
............................................................................................................................11, 30
City of El Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179 (Tex. 1994) ....10, 41
City of Houston v. Jackson, 192 S.W.3d 764 (Tex.2006) ....................................... 30
City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex.2008) ....................................... 10
Ex Parte Myers, 68 S.W.3d 229 (Tex. App. 2002) ................................................. 12
Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997) ............ 21
iv Garrett v. The Tex. State Bd. of Pharm., 03-21-00039-CV, at *12–14 (Tex.App.–
Austin, Jan 25, 2023, no pet.) ......................................................................36, 37, 39
Gen. Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591 (Tex.2001) ....... 21
Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.-Houston [1st
Dist.] 2000, no pet.) ................................................................................................. 24
Greene v. McElroy, 360 U.S. 474, 492 (1959) ........................................................ 35
Goldberg v. Kelly, 397 U.S. 254, 262 n.8 (1970) .................................................... 35
Harris Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113 (Tex.
2017) ........................................................................................................................ 10
Hinkley v. Texas State Bd. of Med. Examiners, 140 S.W.3d 737 (Tex.App.-Austin
2004, pet denied). ....................................................................................................... 9
Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018). ................. 34
Hovel v. Gatzri, 490 S.W.3d 132 (Tex.App.–Houston [1st Dist.] 1964), ............... 29
Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003) (per curiam)............................. 20
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) ........................ 12
Kawasaki Motors Corp. U.S.A. v. Texas Motor Vehicle Comm'n, 855 S.W.2d 792
(Tex.App.-Austin 1993, no writ) ............................................................................. 41
Levy v. Texas State Bd. of Med. Exam'rs, 966 S.W.2d 813 (Tex. App.-Austin 1998,
no pet.)...................................................................................................................... 12
v Little-Tex. Gen. Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591 (Tex.
2001) ........................................................................................................................ 21
Loper Bright Enters. v. Raimondo, Sec’y of Commerce, 603 U.S. 369 (2024)
......................................................................................................................11, 30, 31
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................ 23
McClelland v. Tex. Health & Human Servs. Comm'n, 635 S.W.3d 410 (Tex. App.
2021) ........................................................................................................................ 30
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) .................24, 25
Mireles v. Texas Dep’t. of Pub. Safety, 9 S.W.3d 128 (Tex. 1999)........................... 9
Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000) ....................... 9
Mosley v. Texas Health &Human Servs. Comm'n, 593 S.W.3d 250 (Tex. 2019)
.......................................................................................................................34, 37,38
Mossman v. Banatex, LLC, 479 S.W.3d 854 (Tex. App. 2015) .............................. 32
Motor Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n,
Inc., 1 S.W.3d 108 (Tex. 1999) (per curiam)........................................................... 20
Patel v. Texas Dep't of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015)
......................................................................................................................35, 36, 39
Pub. Util. Comm'n v. City Pub. Serv. Bd., 109 S.W.3d 130 (Tex. App.—Austin
2003, no pet.) ........................................................................................................... 10
vi R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water , 336
S.W.3d 619 (Tex. 2011) ...............................................................................10, 30, 31
Rogers v. Texas Board of Architectural Examiners, 390 S.W.3d 377, 384 (Tex.
App.-Austin 2011, no pet.) ..................................................................................... 12
Scally v. Tex. State Bd. of Med. Exam'rs , 351 S.W.3d 434 (Tex. App.—Austin
2011, pet. denied) .........................................................................................10, 22, 23
Schwab v. Schlumberger Well Surveying Corp., 198 S.W.2d 79 (Tex. 1946) ....... 29
Sheffield v. Nobles, 378 S.W.2d 391, 392 (Tex.App.–Austin 1964, writ ref'd) ..... 29
Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471 (Tex. 2017) ............................. 20
Smith v. Decker, 312 S.W.2d 632, 633 (Tex. 1958) ................................................ 35
State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) ............................................... 12
Texas Department of Insurance v. State Farm Lloyds, 233 (Tex.App.-Austin 1993,
no pet.)...................................................................................................................... 41
Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446
(Tex.1984) ................................................................................................................ 41
Texas State Bd. Of Med. Examiners v. Mann 413 S.W.2d 382 (Tex. 1967). ....32, 33
Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351 (Tex. 2005) ............................ 21
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ..........................................12, 28, 33
Willis v. BPMT, LLC, 471 S.W.3d 27 (Tex.App.–Houston [1st Dist.] 2015, no
pet.)........................................................................................................................... 30
vii Law Review Articles
Robert W. Hamilton, The Corporate Entity, 49 Tex. L.Rev. 979, 995–96 (1971) 29
Constitution & Statutes
TEXAS CONSTITUTION ART. I, §19 .............................................................................. 2
TEXAS GOVERNMENT CODE § 311.011..................................................................... 10
TEXAS GOVERNMENT CODE § 311.016(1) ................................................................ 15
TEXAS GOVERNMENT CODE § 2001.001..................................................................... 8
TEXAS GOVERNMENT CODE § 2001.051-.052 .......................................................... 22
TEXAS GOVERNMENT CODE § 2001.058(e) ..................................................14, 17, 18
TEXAS GOVERNMENT CODE § 2001.174..................................................................... 8
TEXAS GOVERNMENT CODE § 2001.174(2)(E) ........................................................... 9
TEXAS GOVERNMENT CODE § 2260.......................................................................... 21
TEXAS HEALTH & SAFETY CODE § 108.005 ............................................................. 40
TEXAS OCCUPATIONS CODE § 301.157 .................................................................... 15
TEXAS OCCUPATIONS CODE § 301.157 (d) ........................................2, 14, 19, 20, 25
TEXAS OCCUPATIONS CODE § 301.157(d-4) ............................................2, 15, 19, 20
TEXAS OCCUPATIONS CODE § 301.252..................................................................... 15
TEXAS OCCUPATIONS CODE § 301.260...........................................................2, 15, 26
TEXAS OCCUPATIONS CODE § 301.301(b) ..........................................................23, 28
TEXAS OCCUPATIONS CODE § 301.3011(a) .............................................................. 28
viii TEXAS OCCUPATIONS CODE § 301.301 – 308 ....................................................28, 33
TEXAS OCCUPATIONS CODE § 301.451...............................................................15, 16
TEXAS OCCUPATIONS CODE § 301.451 (1) ............................................................... 16
TEXAS OCCUPATIONS CODE § 301.451 (3) ............................................................... 16
TEXAS OCCUPATIONS CODE § 301.452 ..............................................................13, 14
TEXAS OCCUPATIONS CODE § 301.452 (b) ...................................8, 16, 26, 27, 28, 31
TEXAS OCCUPATIONS CODE § 301.452 (b)(1) ..............................................13, 14, 27
TEXAS OCCUPATIONS CODE § 301.452 (b)(2) ..............................................13, 14, 27
TEXAS OCCUPATIONS CODE § 301.452 (b)(5) ..............................................13, 14 ,27
TEXAS OCCUPATIONS CODE § 301.452 (b)(10) ............................................13, 14, 27
TEXAS OCCUPATIONS CODE § 301.453.................................................................... 16
TEXAS OCCUPATIONS CODE § 301.453 (a)(1) ....................................................16, 27
Rules
1 TEXAS ADMINISTRATIVE CODE § 155.427.......................................................22, 23
1 TEXAS ADMINISTRATIVE CODE § 155.507............................................................. 17
22 TEXAS ADMINISTRATIVE CODE § 213.23 ............................................................ 17
22 TEXAS ADMINISTRATIVE CODE § 213.23 (c) ....................................................... 17
22 TEXAS ADMINISTRATIVE CODE § 213.23 (f)........................................................17
22 TEXAS ADMINISTRATIVE CODE § 213.23 (g) ....................................................... 18
22 TEXAS ADMINISTRATIVE CODE § 213.27 et. seq. ................................................ 17
ix 22 TEXAS ADMINISTRATIVE CODE § 213.29............................................................. 26
22 TEXAS ADMINISTRATIVE CODE § 213.29 (c) ....................................................... 29
22 TEXAS ADMINISTRATIVE CODE § 213.29 (f)(1) ................................................... 29
22 TEXAS ADMINISTRATIVE CODE § 213.29 (k)(1) ............................................26, 29
22 TEXAS ADMINISTRATIVE CODE § 214 et. seq. ..................................................... 16
22 TEXAS ADMINISTRATIVE CODE § 216.11.......................................................26, 29
22 TEXAS ADMINISTRATIVE CODE § 217.5(a) ......................................................... 40
22 TEXAS ADMINISTRATIVE CODE § 217.5 (a)(1) ..........................................2, 16, 25
22 TEXAS ADMINISTRATIVE CODE § 217.5 (a)(1)(B) ........................................... 2, 26
22 TEXAS ADMINISTRATIVE CODE § 217.5 (a)(1)(E)(i) ........................................... 40
22 TEXAS ADMINISTRATIVE CODE § 217.5 (a)(1)(F)................................................ 40
22 TEXAS ADMINISTRATIVE CODE § 217.6............................................................... 29
22 TEXAS ADMINISTRATIVE CODE § 217.11............................................................. 39
22 TEXAS ADMINISTRATIVE CODE § 217.12 ............................................................ 14
22 TEXAS ADMINISTRATIVE CODE § 217.12 (4) ....................................................... 14
22 TEXAS ADMINISTRATIVE CODE § 217.12 (6)(D) ................................................. 14
x GLOSSARY OF ABBREVIATED TERMS
ALJ Administrative Law Judge
APA Administrative Procedures Act
AR Administrative Record
CR Clerk’s Record
PFD Proposal for Decision
SOAH State Office of Administrative Hearings
xi No. 15-25-00033-CV _____________________________________________________________
IN THE COURT OF APPEALS FOR THE FIFETEENTH DISTRICT
AUSTIN, TEXAS _____________________________________________________________
EDITH OKECHUKWU OMIETIMI, Appellant
v.
TEXAS BOARD OF NURSING, Appellee ______________________________________________________________
ON APPEAL FROM THE 459TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS CAUSE NO. D-1-GN-24-3659 THE HONORABLE MAYA G. GAMBLE, PRESIDING ______________________________________________________________
APPELLANT’S BRIEF ______________________________________________________________
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES Edith Okechukwu Omietimi, hereinafter called Appellant,
to file this Appellant’s Brief in this matter:
STATEMENT OF THE NATURE OF THE CASE
This matter is an appeal of an administrative disciplinary action taken by the
Texas Board of Nursing (“Board”) against the licensed vocational nursing license
held by the Appellant, Edith Okechukwu Omietimi. In a final Order and Opinion of
the Board, the Board denied the renewal of Appellant’s Vocational Nursing License
Page 1 of 44 for violations of TEXAS OCCUPATIONS CODE §§ 301.157(d) & 301.260, and
predicated on violations of 22 TEXAS ADMINISTRATIVE CODE §§ 217.5(a)(1) &
(a)(1)(B). The Appellant asserts multiple errors based on Texas Government Code
§ 2001.174(2) and Texas Constitution art. I, §19.
STATEMENT REGARDING ORAL ARGUMENTS
Appellant requests oral arguments because the issues presented in this case
raise matters of first impression related to the Board, especially whether there is a
ministerial duty of the Board of Nursing to renew a professional license, and whether
the Appellant’s due course of law rights under the Texas Constitution were violated
by the denial of renewal.
ISSUES PRESENTED
The Appellant raises the following three issues:
a. Appellant’s nursing education was accepted by the Texas Board of Nursing during the endorsement process under Texas Occupations Code § 301.157(d-4); b. The Administrative Law Judge improperly asserted that the Appellant had the burden of persuasion to show she was nonetheless qualified when filing an application for license renewal; c. Renewal of a nursing license is a ministerial duty and failure to renew Appellant’s license is a clear abuse of discretion; d. Revocation of Appellant’s nursing license by denying renewal of her license violates Appellant’s Due Course of Law rights under the Texas Constitution and is therefore arbitrary and capricious.
Page 2 of 44 STATEMENT OF FACTS
During January 2023, the Federal Bureau of Investigation (FBI) and the
United States Department of Health and Human Services-Office of Inspector
General (HHS-OIG) announced “Operation Nightingale,” a law enforcement action
against an allegedly fraudulent nursing diploma scheme.1 More than 7,600
individuals nationwide were identified as participants in a scheme to obtain
fraudulent degrees that allowed them to sit for the National Council Licensing
Examination (NCLEX) and, if they passed the NCLEX, to obtain licenses to practice
nursing. Operation Nightingale exposed an alleged conspiracy between private
businesses acting as recruiters, primarily in New Jersey, New York, and Texas, and
the owners of South Florida nursing schools. The recruiters found aspiring nurses
and offered instruction that was geared to passing the NCLEX, and the nursing
school owners issued false diplomas and transcripts for the students. The alleged
scheme ran a gamut, ranging from those who simply exchanged money for a nursing
diploma, to those who received minimal instruction, to those who completed more
robust programs that included clinical components. Along with more than 100 other
Texas nurses, Appellant was identified as potentially involved in Operation
Nightingale. Administrative Record (hereinafter “AR”), at 4767.
1 https://www.justice.gov/usao-sdfl/pr/fraudulent-nursing-diploma-scheme-leads-federal-
charges-against-25-defendants (last visited September 27, 2024).
Page 3 of 44 Appellant attended Sacred Heart International Institute, Inc. (Sacred Heart),
one of the schools implicated in Operation Nightingale. Sacred Heart, located in
Deerfield Beach, Florida, was approved by the Florida Board of Nursing (Florida
BON) in 2013 as an in-person nursing education program. Id., at 4803, Finding of
Fact No. 7. Appellant attended what purported to be a Houston-based satellite
campus of Sacred Heart, which she sincerely believed was a legitimate nursing
education program and an authorized satellite campus of Sacred Heart. Id., Finding
of Fact No. 12. Appellant enrolled in Sacred Heart – Houston (SHH) in October
2019 and attended classes from November 2019 through October 2020.
In March 2020, Serge Jean, the lead instructor at Sacred Heart, notified
students he was monitoring the impact of COVID-19. Id., at 4804, Finding of Fact
No. 15. On March 21, 2020, Governor Abbott issued a disaster declaration in Texas
due to COVID-19, and this disaster declaration included a waiver for certain rules
of the Board related to nursing education. The waiver expired on September 1, 2022.
Id., Finding of Fact No. 16.
On March 21, 2020, the Florida State Surgeon General issued an Emergency
Order suspending requirements for didactic and clinical nursing programs. The
Emergency Order allowed programs—with the approval of the appropriate
administrator—to substitute supervised remote live videoconferencing for didactic
hours and simulation for all supervised clinical instruction hours required by any
Page 4 of 44 statute or rule. The suspension ended June 26, 2021. Id., Finding of Fact No. 17.
On April 20, 2020, Mr. Jean sent students a second letter, advising that all
classes, including didactic and clinical instruction, would be conducted online via
videoconference due to COVID-19 precautions. The correspondence from Mr. Jean
referenced “Jean’s NCLEX Review,” not Sacred Heart. Id., Finding of Fact No. 18.
Despite the references to Jean’s NCLEX Review in Mr. Jean’s letters, Appellant
reasonably and sincerely believed her program was SHH, affiliated with Sacred
Heart. Appellant also reasonably and sincerely believed her program was authorized
to provide all instruction online. Id., Finding of Fact No. 21.
Appellant completed the SHH program in October 2020 and took and passed
the NCLEX-PN (for vocational or practical nurses) a few months later. She then
obtained her Florida LPN license from the Florida BON and the Texas LVN license
from the Board by endorsement. Id., at 4805, Finding of Fact No. 22. Appellant
submitted a license renewal application in April 2023 and she continued to believe
she had completed a legitimate one-year program. And because she passed the
NCLEX-PN, the Texas Board’s Jurisprudence and Ethics exam, and held a valid
Florida LPN license, Appellant believed she met the requirements to hold a Texas
LVN license. Id., Finding of Fact No. 27. Appellant is currently enrolled in a
different program and expects to graduate in 2026 with a bachelor’s degree in
nursing. Id., Finding of Fact No. 28.
Page 5 of 44 On April 7, 2023, Appellant submitted an application to renew her license
(Renewal). Id., at 4802, Finding of Fact No. 2. Staff of the Texas BON proposed to
revoke her LVN license and deny the Renewal. Id. Appellant timely requested a
contested-case hearing before the State Office of Administrative Hearings (SOAH).
SOAH Administrative Law Judge Pratibha J. Shenoy convened the hearing on the
merits via Zoom videoconference on September 25, 2023.
On November 20, 2023, Judge Shenoy issued a proposal for decision (PFD)
recommending to the Board that the Texas BON should uphold the proposed denial
of renewal of the Appellant’s LVN license. Id., at 4764–810. Appellant timely filed
exceptions to the PFD, and the Texas BON timely filed a response. On January 11,
2024, Judge Shenoy denied Appellant’s exceptions. Id., at 4820–21.
On March 15, 2024, the Texas BON timely notified the Appellant of proposed
Board action at the April 2024 meeting of the Texas BON. On April 22, 2024, the
Texas BON took action, denying the renewal of Appellant’s LVN license. Id., at
4828–30. On May 13, 2024, Appellant timely filed a Motion for Rehearing with the
Texas BON, which was overruled by operation of law on June 10, 2024. Tex.
Government Code § 2001.146 (c).
On June 10, 2024, Appellant filed an Original Petition for Judicial Review
and Application for Temporary Injunction. Clerk’s Record (CR), at 3–16. At the
request of the Appellant, the case was assigned to the 459th Judicial District Court,
Page 6 of 44 Travis County on June 14th, 2024. The final hearing in this matter occurred on
December 19th, 2024, and Judge Maya G. Gamble issued a final judgment on
February 19th, 2025 affirming the Final Opinion and Order of the Board. CR, at 22–
23. Appellant timely filed her Notice of Appeal on March 21st, 2025. CR, at 24–26.
SUMMARY OF THE ARGUMENT
This matter is an appeal for the denial of licensure renewal by the Texas Board
of Nursing. The Board alleges that the Appellant did not complete a nursing
education program that was substantially equivalent to the requirements of the Board
and intentionally misrepresented her education to the Board in an effort to
fraudulently obtain a vocational nursing license. After a contested case hearing,
SOAH ALJ Prabitha Shenoy issued a Proposal for Decision which concluded that
the Appellant did not intentionally misrepresent her education, but that because the
Appellant did not obtain a substantially equivalent education to that required in a
Texas nursing education program. ALJ Shenoy recommended to the Board that
Appellant’s vocational nursing license should not be renewed, but she did not
recommend license revocation.
Appellant argues in four points of error that 1) even if the education was not
substantially equivalent to a Texas program, her vocational nursing education
program was approved by the Florida Board of Nursing, she was licensed by the
Florida Board of Nursing with that education, and when the Texas Board of Nursing
Page 7 of 44 was presented with her educational credentials, the Texas Board of Nursing accepted
that education and granted her a vocational nursing license, essentially waiving
complaints about her educational preparation; 2) renewal of the Appellant’s
vocational nursing license is a ministerial act and the failure to renew her license is
a clear abuse of discretion; and 3) denial of license renewal is essentially a revocation
of the Appellant’s license which requires a finding of a violation of Section
301.452(b) of the Texas Occupations Code, and without such a finding, the denial
of renewal violates her due course of law rights under the Texas Constitution and is
thus arbitrary and capricious.
ARGUMENT
A. Standard of Review
The judicial review of an administrative order is governed by the
Administrative Procedure Act (APA). TEX. GOV’T. CODE § 2001.001, et. seq. In this
case, the substantial evidence rule is the standard for judicial review for review of a
decision in a contested case. TEX. GOV’T CODE § 2001.174. Section 2001.074
requires this Court to reverse or remand the case to the Board for further proceedings
if substantial rights of the Appellant have been prejudiced because the administrative
findings, inferences, conclusions, or decisions are:
a. in violation of a constitutional or statutory provision; b. in excess of the agency's statutory authority; c. made through unlawful procedure; d. affected by other error of law;
Page 8 of 44 e. not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or f. arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Whether an order of an administrative agency is reasonably supported by
substantial evidence is a question of law to be resolved by the Court. Montgomery
Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000). The question before
this Court is not whether the Board reached a proper factual conclusion on the basis
of conflicting evidence in the record, but whether it acted arbitrarily and without
regard to the facts. Id. at 565-66. The Court’s duty is to consider the record as a
whole to determine if the Board’s Order is reasonably supported by substantial
evidence. TEX. GOV’T CODE § 2001.174 (2)(E). If the proper test is whether the
evidence in the record is such that reasonable minds could have reached the
conclusion that the Board must have reached in order to justify its action. See Hinkley
v. Texas State Bd. of Med. Examiners, 140 S.W.3d 737, 743 (Tex.App.-Austin 2004,
pet denied). The Court is ultimately concerned with reasonableness of Board’s
decision, not its correctness. Mireles v. Texas Dep’t. of Pub. Safety, 9 S.W.3d 128,
131 (Tex. 1999).
"An agency's decision is arbitrary or results from an abuse of discretion if the
agency: (1) failed to consider a factor the legislature directs it to consider; (2)
considers an irrelevant factor; or (3) weighs only relevant factors that the legislature
directs it to consider but still reaches a completely unreasonable result." City of El
Page 9 of 44 Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179, 184 (Tex. 1994). "If an agency
does not follow the clear, unambiguous language of its own regulations in making a
decision, the agency's action is arbitrary and capricious and will be reversed.” Harris
Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 119 (Tex. 2017).
Thus arbitrary and capricious agency action as a ground for reversal presents a
question of law that the court reviews de novo. Pub. Util. Comm'n v. City Pub. Serv.
Bd., 109 S.W.3d 130, 135 (Tex. App.—Austin 2003, no pet.).
While substantial-evidence review is applied to an agency's fact findings, the
court reviews an agency's legal conclusions de novo. Scally v. Tex. State Bd. of Med.
Exam'rs, 351 S.W.3d 434, 441 (Tex. App.—Austin 2011, pet. denied). Questions
of statutory construction are also reviewed de novo. R.R. Comm'n of Tex. v. Tex.
Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). In
general, statutes should be read in context and construed using rules of grammar and
common usage, unless such a meaning would lead to an absurd result. TEX. GOV’T
CODE § 311.011; See also City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26
(Tex.2008). If the statue is one which the Board is charged with enforcing, such as
Chapter 301 of the Occupations Code (Nursing Practice Act), the Court must give
“serious consideration” to the interpretation of the statute by the agency. R’R
Comm'n of Tex. v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619,
624 (Tex.2011). While the Texas Supreme Court never expressly adopted Chevron
Page 10 of 44 deference in Texas Citizens, it does state that the serious consideration inquiry
adopted by the Court is similar to the analysis contemplated in Chevron. Id., at 625,
citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, (1984).2
Since Texas Citizens is built along the same analytical scaffolding as Chevron, the
2024 abrogation of Chevron by the United States Supreme Court in Loper Bright
certainly will bring administrative agency deference into question in Texas, too.
Loper Bright Enters. v. Raimondo, Sec’y of Commerce, 603 U.S. 369, 144 S.Ct. 2244
(2024). And as the United States Supreme Court noted in Loper Bright, when the
ambiguity in a statute is regarding the scope of the agency’s own powers, deference
to the agency is least appropriate. Loper Bright, 603 U.S., at ___, 144 S.Ct., at 2266.
In the first case where the Texas Supreme Court specifically addressed the
results of Loper Bright, the Court considered a petition for review related to a pair
of challenges to the Texas workers compensation program, one a broad facial
challenge to a rule promulgated under the program, and the other a challenge to a
specific award to a single claimant. Accident Fund Ins. Co. of Am. v. Tex. Dep’t of
Ins., 23-0273, 23-0950, at *3 (Tex. Feb 07, 2025). In addressing the challenges, the
Court noted in dicta that while they have hinted at the analysis would be similar, this
was not the “time to transform similarity into sameness”, but that a future challenge
2 The Railroad Commission argued in the case that “"state law principles regarding judicial
deference to an agency's interpretation of a statute it implements are closely aligned to federal-court precedent." Id.
Page 11 of 44 to a specific agency statutory interpretation could allow the court to assess critically
an agencies power to interpret statutory ambiguity. Id., at *10.
An agency clearly abuses its discretion if "it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law.” Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992), citing Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985). "[A] clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion." Packer,
827 S.W.2d, at 833. If the only issue presented for review involves a purely legal
determination, the proper standard of review is de novo. Ex Parte Myers, 68 S.W.3d
229 (Tex. App. 2002), citing Walker v. Packer, 827 S.W.2d, at 840.
This matter, however, is only in part a consideration of the reliable and
probative evidence in the record which gives rise to the Board’s findings. The issues
presented by Appellant turn not on the evidence in the records, but on the
interpretation of the statutory authority of the Board, which Appellant notes that the
Court reviews de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). See
also Rogers v. Texas Board of Architectural Examiners, 390 S.W.3d 377, 384 (Tex.
App.-Austin 2011, no pet.). And when a statutory violation has occurred, there is
no need for the court to address substantial evidence issues. Levy v. Texas State Bd.
of Med. Exam'rs, 966 S.W.2d 813, 816 (Tex. App.-Austin 1998, no pet.).
Page 12 of 44 B. The Nursing Practice Act and Board Rules
Chapter 301 of the Texas Occupations Code is the statutory authority for
creation of the Board of Nursing and defines the Board’s responsibilities and powers
for regulating nursing education licensure and practice. By statute, the Board defines
the practice of nursing as well as the grounds for the Board to investigate allegations
of unlawful or substandard nursing practice or unprofessional conduct and take
disciplinary action against licensees for violation of the Nursing Practice Act and
Board rules.
Section 301.452 of the NPA specifies grounds for disciplinary action and
describes the violations for which the Board can take disciplinary action. In this
case, the Appellant was charged with violating Sections 301.452(b)(1), (2), (5), &
(10), which read as follows: (b) A person is subject to denial of a license or to
disciplinary action under this subchapter for: (1) a violation of this chapter, a rule or
regulation not inconsistent with this chapter, or an order issued under this chapter;
(2) fraud or deceit in procuring or attempting to procure a license to practice
professional nursing or vocational nursing; (5) use of a nursing license, diploma, or
permit, or the transcript of such a document, that has been fraudulently purchased,
issued, counterfeited, or materially altered; and (10) unprofessional conduct in the
practice of nursing that is likely to deceive, defraud, or injure a patient or the public.
AR, at 394. Conclusion of Law No. 7 in the Proposal for Decision found that Board
Page 13 of 44 Staff failed to meet the burden of proof that Ms. Appellant violated Subsections
(b)(2) or (b)(5). Id., at 4809. The PFD did not address violations of Subsections
(b)(1) or (b)(10), but the Board adopted the PFD without invoking the authority of
Section 2001.058(e) of the Government Code to make any changes to the PFD to
find a violation within Section 301.452. Id., at 4898 – 4900.
The Board defines unprofessional conduct by rule at 22 TEX. ADMIN. CODE
§217.12. The Appellant was charged with violating Board Rules 217.12(4) & (6)(H)
of the unprofessional conduct rule. Id., at 394. Board Rule 217.12 (4) holds that it is
unprofessional conduct for a nurse to engage in “[c]onduct that may endanger a
client’s life, health, or safety.” 22 TEX. ADMIN. CODE §217.12 (4). Board Rule
217.12(6)(D) holds it is unprofessional conduct if a nurse engages in misconduct,
which is defined as actions or conduct that include, but are not limited to violating
professional boundaries of the nurse/client relationship including but not limited to
physical, sexual, emotional or financial exploitation of the client or the client's
significant other(s). 22 TEX. ADMIN. CODE §217.12 (6)(H). In the PFD, AKJ Shenoy
did not find a violation of the unprofessional conduct rule, Board Rule 217.12, and
the Board adopted the PFD without invoking the authority of Section 2001.058(e)
of the Government Code to make any changes to the PFD.
Under Section 301.157(d) of the Occupations Code, acceptance of an
educational credential from a program approved by another state and the Board is
Page 14 of 44 subject to subsection d-4. This subsection reads “[t]he board may recognize and
accept as approved under this section a school of nursing or educational program
operated in another state and approved by a state board of nursing or other regulatory
body of that state.” TEX. OCC. CODE § 301.157(d-4). The use of the term “may”
indicates that the Board has discretionary authority or permission to take an action.
TEX. GOV’T CODE § 311.016(1).
Section 301.252 of the NPA governs the technical aspects of licensure
applications. The section requires a nurse has completed an educational program
approved under Section 301.157, passage of a jurisprudence examination, and the
nurse shows good professional character at the time of the application. TEX. OCC.
CODE § 301.252.
Section 301.260 of the NPA governs the granting of a temporary license by
endorsement when a licensee from another state applies for licensure by
endorsement, providing they show evidence they possess the qualifications
necessary at that time to have been eligible for licensing in this state, and provides
proof their license in the other state is currently valid, and has not been disciplined.
TEX. OCC. CODE § 301.260. ALJ Shenoy did cite this section in Conclusions of Law
No. Fourteen (14) and Fifteen (15). AR, at 4809, Findings of Fact Nos. 14 & 15.
Section 301.451 of the NPA prohibits certain practices. Subsection (1)
prohibits a person from selling, fraudulently obtaining, or fraudulently furnishing a
Page 15 of 44 nursing diploma, license, renewal license, or record. TEX. OCC. CODE § 301.451(1).
Subsection (3) prohibits a person from practicing “nursing under a diploma, license,
or record that was: (A) obtained unlawfully or fraudulently; or (B) signed or issued
unlawfully or under false representation. TEX. OCC. CODE § 301.451(3). The PFD
did not address violations of Section 301.451 in the Findings of Fact or Conclusions
of Law.
Section 301.453 of the NPA addresses the disciplinary authority of the Board
and methods of discipline available to the Board for a violation of the NPA. TEX.
OCC. CODE § 301.453 et. seq. Subsection (a)(1) does allow that “denial of the
person’s . . ., license renewal, . . . is an available disciplinary action for a violation
of Section 301.452(b). TEX. OCC. CODE § 301.453(a)(1). This section of the NPA
was not addressed in the Findings of Fact or Conclusions of Law.
Board Rule 214 addresses the requirements for Vocational Nursing Education
programs in the State of Texas. 22 TEX. ADMIN. CODE § 214 et. seq. With regards to
licensure by endorsement, at the relevant time (March 2021), Board Rule 217.5(a)(1)
provided that licensure by endorsement was available only to “[a] nurse who has
practiced nursing in another state within the four years immediately preceding,” and
who could establish “graduation from an approved nursing education program,”
among other requirements. See 22 TEX. ADMIN. CODE § 217.5(a)(1). There was no
requirement that the nursing education program be “substantially equivalent to a
Page 16 of 44 Texas nursing education program. 47 TEX. REG. 6581 (October 7, 2022) (There were
no changes from the proposed text published in the August 19, 2022 Texas Register.
47 TEX. REG. 4935).
Board Rule 213.27 is the Board’s good professional character rule. 22 TEX.
ADMIN. CODE § 213.27 et. seq. This section of the NPA was not addressed by ALJ
Shenoy in the Findings of Fact or Conclusions of Law of the PFD.
With regards to the procedures the Board has adopted to process a proposal
for decision, the procedures are contained in Board Rule 213.23. Relevant to the
instant case, a party of record that is adversely affected by a proposal for decision
has the opportunity to file exceptions to the proposal for decision with the
Administrative Law Judge. 22 TEX. ADMIN. CODE § 213.23(c).3 The Board has
essentially adopted TEX. GOV’T CODE §2001.058(e) by rule, defining the ability of
the Board to change a finding of fact or conclusion of law if the Board determines
that certain conditions have been met. 22 TEX. ADMIN. CODE § 213.23 (f).4 Finally,
3 “Any party of record who is adversely affected by the proposal for decision of the judge shall
have the opportunity to file with the judge exceptions to the proposal for decision and replies to exceptions to the proposal for decision in accordance with 1 TAC §155.507. The proposal for decision may be amended by the judge in accordance with 1 TAC §155.507 without again being served on the parties.” 4 “It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for
decision or to vacate or modify the proposed order of a judge when, the Board determines: (1) that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions; (2) that a prior administrative decision on which the judge relied is incorrect or should be changed; or (3) that a technical error in a finding of fact should be changed.”
Page 17 of 44 if the Board does modify, amend or change the proposal for decision, the specific
reason and legal basis for the change must be included in the order. 22 TEX. ADMIN.
CODE § 213.23 (g).5 In this case, the Board did not change any findings of fact or
conclusions of law, nor did the Board cite Section 2001.058(e) in their Opinion and
Order of the Board.
C. Appellant’s Nursing Education was Accepted by the Texas Board of Nursing During the Endorsement Process under Texas Occupations Code § 301.157(d-4) The PFD from Judge Shenoy asserts that the Sacred Heart program was not
approved by the Texas BON, accredited by a national nursing accreditation agency,
or approved by the Florida BON and accepted by the Texas BON. AR, at 4806,
Findings of Fact Nos. 36, 37, 38, & 39. Appellant does not argue, nor is there
evidence that the Sacred Heart program was approved by the Texas BON, or that the
program was accredited by a national accreditation agency. However, Appellant
asserts that Sacred Heart was approved by the Florida BON and the Florida
Commission for Independent Education, which approve nursing programs in concert
under Florida law according to Sherry Sutton-Johnson, the Director of Nursing
Education for the Florida Board of Nursing. See AR, at 643–646, Board Exhibit 13.
5 “If the Board modifies, amends, or changes the recommended proposal for decision or order
of the judge, an order shall be prepared reflecting the Board's changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to subsection (f) of this section.”
Page 18 of 44 The Sacred Heart program is specifically referenced in paragraphs 17 – 19 as having
been approved in November 2013 to offer practical nursing (known as vocational
nursing in Texas) education. Id., at 644, ¶17. That approval extended until at least
June 2021 when the school was not allowed to admit new students. Id., at 645, ¶19
Under Section 301.157(d) of the Occupations Code, acceptance of an
educational credential from a program approved by another state and the Texas BON
is subject to subsection d-4. This subsection reads “[t]he Board may recognize and
accept as approved under this section a school of nursing or educational program
operated in another state and approved by a state board of nursing or other regulatory
body of that state.” TEX. OCC. CODE § 301.157 (d-4). This recognition is a
discretionary act, and by licensing the Appellant, the Board has accepted the
credentials as presented by the Appellant in March 2021. AR, at 580–596, Board
Exhibit 1.
Appellant applied for Texas licensure as a LVN after she obtained an LPN
license in Florida in January 2021. The Board granted the Appellant her license on
March 22nd, 2021 with full knowledge that the Appellant had received her
educational credentials from Sacred Heart International Institute in Florida. The
Texas BON did not object to Appellant’s educational credentials at the time of her
initial application for licensure, and there is no evidence the Appellant intentionally
misrepresented her educational credentials in her license applications. AR, at 4808,
Page 19 of 44 Conclusion of Law No. 7.
Appellant notes there is no dispute that the Texas BON accepted her
educational credentials from Sacred Heart International Institute from her
endorsement application in March 2021. Beyond just showing evidence the
Appellant had completed an approved vocational nursing program, Appellant argues
this shows that the Board considered that her education was substantially equivalent
to Texas standards in March 2021 when the Texas BON granted the Appellant a
Licensed Vocational Nursing license. TEX. OCC. CODE § 301.157(d) & (d-4).
In the alternative, Appellant argues that acceptance of her education acts as a
waiver by conduct of the alleged deficiencies in the Appellant’s educational
preparation. Waiver is “an intentional relinquishment of a known right or intentional
conduct inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153,
156 (Tex. 2003) (per curiam). Waiver is ordinarily a fact question, but when the
surrounding facts and circumstances are undisputed waiver may be decided as a
matter of law. Motor Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto.
Dealers Ass'n, Inc., 1 S.W.3d 108, 111 (Tex. 1999) (per curiam). “There can be no
waiver of a right if the person sought to be charged with waiver says or does nothing
inconsistent with an intent to rely upon such right.” Jernigan, 111 S.W.3d at 156. In
other words, to establish waiver by conduct, that conduct must be 'unequivocally
inconsistent with claiming a known right’. Shields Ltd. P'ship v. Bradberry, 526
Page 20 of 44 S.W.3d 471, 485 (Tex. 2017) (quoting Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d
351, 353 (Tex. 2005)).
This is not the same as the bar on waiver by conduct related to sovereign
immunity which was first suggested in Federal Sign. Federal Sign v. Texas Southern
University, 951 S.W.2d 401, 408 n.1 (Tex. 1997). The footnote in Federal Sign
suggested that sovereign immunity might be waived by conduct. But subsequent
case law starting with Little-Tex has expressly rejected the doctrine for sovereign
immunity, especially in light of legislative action to create a dispute resolution
procedure for contract issues like those in Federal Sign and Little-Tex. Gen. Servs.
Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).6
Applying the facts in the current case, Appellant argues the facts are not in
dispute, that the Board issued a LVN license to the Appellant with knowledge that
her LVN education was obtained by Sacred Heart, and that she met all other
requirements for licensure by endorsement. The Board granted that license without
questioning the provenance of the Appellant’s education. Further, there was no
factual basis for the proposition that the Appellant intentionally misrepresented her
education or otherwise caused the Board to have false information. The Board’s
actions in granting a nursing license to the Appellant was an intentional
6 See generally Chapter 2260 of the Tex. Gov’t Code for the referenced dispute resolution
process, though it isn’t relevant to the current dispute.
Page 21 of 44 relinquishment of, or was intentional conduct inconsistent with, the right to complain
about the alleged quality of the underlying diploma. Chalker Energy Partners Iii,
LLC v. Le Norman Operating LLC, 595 S.W.3d 668 (Tex. 2020).
D. There is No Authority for the Assertion That Appellant Had the Burden of Persuasion to Show She was Nonetheless Qualified for Licensure Upon Application for Renewal In the Proposal for Decision (PFD), Judge Shenoy asserts the Appellant has a
burden of persuasion to show she is qualified for licensure. Conclusion of Law No.
5 reads as follows:
To determine whether denial of the Renewal is warranted, Staff had the burden of identifying the legal standards alleged to apply and to produce evidence that they were not met, and Respondent had the ultimate burden of persuasion to show her qualifications for the privilege of continuing nursing practice in this state. TEX. GOV’T CODE §§ 2001.051-.052; 1 TEX. ADMIN. CODE § 155.427; Scally, 351 S.W.3d at 446-48.
AR, at 4808; Conclusion of Law No. 5.
Sections 2001.051 & .052 of the Government Code address the due process
requirements for formal administrative hearings under the APA. See TEX. GOV’T
CODE §§ 2001.051-.052. These sections do not address the issues of the burden of
proof, burden of production, or burden of persuasion.
The case cited, Scally, discuss the due process rights due licensed individua
in the judicial review process for a disciplinary action for a professional license.
Scally, 351 S.W.3d, at 446–48. The Appellant agrees that Scally is applicable in this
Page 22 of 44 case to the proposition that 1) Appellant’s license is a constitutionally protected
property interest, Id., at 446, and 2) that constitutionally protected property rights at
a minimum requires notice and an opportunity to be heard in a meaningful manner.
Id., at 447 (citing Mathews v. Eldridge, 424 U.S. 319 (1976)), what Scally does not
address the legal standard related to the denial of license renewal, nor does it ever
mention that any party has a burden of persuasion.7
SOAH Rule 155.427 does address the burden of proof in a formal
administrative proceeding:
In determining which party bears the burden of proof, the judge shall first consider the applicable statute, the referring agency's rules, and the referring agency's policy in accordance with § RSA 155.419 of this chapter. After considering those sources, the judge may consider additional factors, including: (1) the status of the parties; (2) the parties' relative access to and control over information pertinent to the merits of the case; (3) the party seeking affirmative relief; (4) the party seeking to change the status quo; and (5) whether a party would be required to prove a negative.
1 TEX. ADMIN. CODE § 155.427.
The Board has argued in the courts below that there is a burden of persuasion that
requires a party to persuade the trier of fact that a fact is indeed true, citing a criminal
7 A search of the Scally opinion yields no mention of the term “persuasion” or “renewal”. What
Scally does address is whether a licensee who had their license revoked by a licensing agency can continue to practice pending appeal. While Appellant did request a temporary injunction pending this appeal, at this time no injunction has issued.
Page 23 of 44 case from 1993, Alford v. State. 806 S.W.2d 581, 585 (Tex. App.—Dallas, 1991),
aff'd, 866 S.W.2d 619 (Tex. Crim. App. 1993). However, in this case, the issue was
if the United States Constitution mandated the burden of persuasion remain with the
state when a criminal defendant raises an affirmative defense of duress under
substantive due process. The Texas Penal Code, however, shifts the burden of
persuasion to the defendant, Id., at 584, and the Court of Criminal Appeals held this
did not violate substantive due process. Id., at 589. The instant case is not a criminal
case like Alford. Neither is there a statutory requirement that the Appellant carry the
burden of proof upon an application for renewal of a nursing license. Appellant thus
argues the reliance by the Board on Alford is misplaced to support the shift of a
burden of persuasion to Appellant.
The only other type of case in the last 30 years where Appellant could find a
split in the factors between burdens of production and persuasion involve
employment discrimination cases which implicates a burden shifting analysis from
United States Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973). If a plaintiff in an employment discrimination case can make a prima
facie case for employment discrimination, the burden of production shifts to the
employer to articulate a legitimate, non-discriminatory reason for the unequal
treatment, but the burden of persuasion remains continuously with the plaintiff.
Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.-Houston [1st
Page 24 of 44 Dist.] 2000, no pet.), citing McDonnell Douglas, 411 U.S., at 802–03. Again, the
current case is not a similar type of case – while administrative licensing issues can
have some similar features to employment discrimination and criminal defense
cases, the relative position of the litigants here militates against a shifting burden of
persuasion because the Appellant is always in the position of the defendant and there
is no affirmative defense that is applicable. In addition, the Board has articulated no
case law in the courts below that would tend to support a shifting of the burden of
persuasion in the context of an administrative licensing action.
Absent statutory authority, or case law supporting such actions, the Appellant
argues that by the Board adopting a Proposal for Decision shifting the burden of
persuasion in a licensing case, even if the Board retains the overall burden of proof,
is an action in excess of the agency’s statutory authority, making this a decision that
was arbitrary or capricious and characterized by an abuse of discretion, or was a
clearly unwarranted exercise of discretion.
Two conclusions of law in the Proposal for Decision use this shifting burden
of persuasion:
• Conclusion of Law No. 14: Based on the foregoing Findings of Fact and Conclusions of Law, Staff produced evidence to show Respondent did not successfully complete an approved program of vocational nursing, and Respondent did not meet her burden of persuasion to show she was nonetheless qualified. Tex. Occ. Code §§ 301.157(d), .260; 22 Tex. Admin. Code § 217.5(a)(1).
Page 25 of 44 • Conclusion of Law No. 15: Based on the foregoing Findings of Fact and Conclusions of Law, Staff produced evidence to show Respondent did not achieve an education substantially equivalent to Texas standards, and Respondent did not meet her burden of persuasion to show she was nonetheless qualified. Tex. Occ. Code § 301.260; 22 Tex. Admin. Code § 217.5(a)(1)(B).
AR, at 4809. Conclusions Nos. 14 & 15.
If there is no shifting of the burden of persuasion, then these Conclusions of Law are
improper. Nowhere in the Proposal for Decision does Judge Shenoy explain how or
under what authority, either in statute or in case law, requires the Appellant to carry
a burden of persuasion that she is qualified after the Board has accepted her
education for licensure by endorsement. Thus, Appellant argues this cannot support
a contention that the Board should be allowed to deny renewal of Appellant’s
nursing license.
E. The Board may not Base Disciplinary Action, including Denial of License Renewal, When no Violation of Section 301.452(b) is Found. The Board argues that license renewal is not a ministerial act, the Board
asserts it has discretion to refuse to renew a nursing license under Section 301 of the
Texas Occupations Code. Appellant does not contest that the Board may deny
renewal of licensure for failure to comply with continuing competency requirements,
conviction for certain criminal offenses, or adjudication a nurse is no longer fit to
practice. 22 TEX. ADMIN. CODE § 216.11; 22 TEX. ADMIN. CODE § 213.28(k)(1); 22
TEX. ADMIN. CODE § 213.29. Appellant does not generally object to the contention
Page 26 of 44 that the denial of a renewal would be appropriate under Section 301.453(a)(1) of the
NPA, which states that if “a person has committed an act listed in Section
301.452(b)”, they are subject to disciplinary action, which is defined to include
denial of license renewal. TEX. OCC. CODE § 301.453(a)(1). But in this case, there
was no finding that Appellant committed an act listed in Section 301.452(b).
The authority to deny renewal of a nursing license is thus premised on a
violation that would also lead to a disciplinary action, not as an independent action
that can be taken without reference to Section 301.452(b). The Board’s Third
Amended Formal Charges specifically cited the following alleged violations did
contain references to Sections 301.452(b)(1), (2), (5), & (10). AR, at 576; Board
Exhibit 3e, at 10. But in her PFD, ALJ Shenoy only addressed Subsections (b)(2) &
(5) in the findings of fact and conclusions of law, holding that the Board had failed
to meet its burden of proof as to those subsections. AR, at 4808, Conclusion of Law
No. 7. At no point in the PFD does ALJ Shenoy specifically find there was a
violation of Sections 301.452(b)(1) or (10), the Board failed to file exceptions to the
PFD asking ALJ Shenoy to fix that error, and the Board adopted the PFD without
changing the PFD or otherwise mentioning a violation of Sections 301.452(b)(1) or
(10). AR, at 4898–4900, Opinion and Order of the Board. As the Board adopted a
PFD without a violation of Section 301.452(b) of the Texas Occupations Code, the
Board does not have the authority to deny renewal of Appellant’s nursing license.
Page 27 of 44 A clear failure by the ALJ to analyze or apply the law correctly constitutes a
clear abuse of discretion. Packer, 827 S.W.2d, at 839–840. As the Appellant has
complied with all of the requirements listed in the NPA and Board Rules for renewal
of her license, the Board issued an Order and Opinion of the Board that contained
no asserted violations of Section 301.452(b) of the Texas Occupations Code, and
renewal of the license is a ministerial duty, the Board action to uphold the denial of
renewal is a clear abuse of discretion.
F. Renewal of a Nursing License is a Ministerial Duty and Failure to Renew Appellant’s License is a Clear Abuse of Discretion If we are looking for a standard for the renewal of a nursing license, the
process is found in Section 301 of the Nursing Practice Act. Specifically, Section
301 states that “A person may renew an unexpired license issued under this chapter
on payment to the Board of the required renewal fee before the expiration date of
the license and compliance with any other renewal requirements adopted by the
Board.” TEX. OCC. CODE § 301.301(b). This squarely puts the responsibility for
renewing a nursing license on the Appellant but does not specify any additional
requirements other than paying a fee and completing other renewal requirements in
the Board’s rules. The NPA does address some additional requirements, including
criminal background checks, TEX. OCC. CODE § 301.3011(a), and continuing
competency. TEX. OCC. CODE § 301.303–308.
Looking farther into the Board’s rules, there is no single rule that addresses
Page 28 of 44 license renewal. Board Rule 216.11 asserts that the consequence of failing to comply
with the continuing competency requirements contained in Board Rule 216 is the
denial of license renewal. 22 TEX. ADMIN. CODE § 216.11. Failure to pay the
indicated fee is also listed as a matter where denial of license renewal is required.
Id. There are several instances where the Board may “deny license renewal”,8 but
nowhere in the Board’s rules does it indicate the licensees right to due process is in
any way affected before a license renewal may occur. Finally, failure to renew a
license is covered in Board Rule 217.6, but nowhere in that rule does the Board
impose any additional requirements on renew beyond paying the required fee and
complying with the continuing competency rule. 22 TEX. ADMIN. CODE § 217.6.
The nature of an administrative action in licensure is to operate as a penal
statute. Schwab v. Schlumberger Well Surveying Corp., 198 S.W.2d 79, 81 (Tex.
1946) ; Sheffield v. Nobles, 378 S.W.2d 391, 392 (Tex.App.–Austin 1964, writ ref'd)
(statute is “highly penal in nature and one which could produce great hardship”).
While these situations often occur in the matter of taxes, See Hovel v. Gatzri, 490
S.W.3d 132, 136 (Tex.App.–Houston [1st Dist.] 1964), citing Robert W. Hamilton,
The Corporate Entity, 49 Tex. L.Rev. 979, 995–96 (1971) (describing individual
liability arising from failure to pay franchise taxes as “[d]raconian provision”), they
8 The denial of licensure renewal is referenced in the context of fitness to practice, 22 Tex.
Admin. Code § 213.29(c), (f)(1); and bars to licensure due to criminal justice issues, 22 Tex. Admin. Code § 213.28(k)(1).
Page 29 of 44 can arise in other types of cases. If a statute is ‘penal in nature’, it therefore must be
‘strictly construed’ to protect individuals against whom liability is sought.” Willis v.
BPMT, LLC, 471 S.W.3d 27, 33 (Tex.App.–Houston [1st Dist.] 2015, no pet.). The
rule of lenity, or that an ambiguous statute must be interpreted in the most favorable
light to the individual and not the state, can also be applied to a penal civil statute in
a strict construction method of interpretation. See, e.g., City of Houston v. Jackson,
192 S.W.3d 764, 770 (Tex.2006) (“we have consistently held that penal statutes
should be strictly construed”).
Courts may grant some deference to an agency's interpretation of a statute if
it is charged with enforcing that statute, so long as its interpretation is reasonable
and does not conflict with the statute's language. McClelland v. Tex. Health &
Human Servs. Comm'n, 635 S.W.3d 410 (Tex. App. 2021), citing Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (stating two-part test for
deference to agency construction of statute); R.R. Comm'n of Tex. v. Tex. Citizens
for a Safe Future and Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). But in Loper
Bright, the United States Supreme Court stuck down Chevron deference for the
federal administrative agencies, holding that “courts need not and under the APA
may not defer to an agency interpretation of the law simply because a statute is
Page 30 of 44 ambiguous.” Loper Bright, 603 U.S., at ___, 144 S.Ct., at 2273.9 Given the current
bent of the Texas Supreme Court, it is not hard to see that even the more limited
deference to agency interpretations in Texas Citizens could fall, especially for
ambiguous statutory construction issues. Accident Fund, 23-0273, 23-0950, at *3.
The decline of agency deference under Loper Bright and the rule of lenity
argue that interpretation of Board authority to deny a renewal of an otherwise active
license must be interpreted in the light most favorable to the Appellant. In this case,
it is not totally clear in the NPA that the Board has independent authority to deny the
renewal of a nursing license absent a violation of Section 301.452(b). Appellant
argues the proper interpretation is that because the Appellant has not been found to
have violated section 301.452(b), there is no independent authority to deny the
renewal of Appellant’s nursing license.
A ministerial duty occurs “when the law clearly spells out the duty to be
performed by the official with sufficient certainty that nothing is left to the exercise
of discretion." Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991). The
Texas Attorney General's Office has consistently provided guidance over the years
to public officials charged with the duty to process various kinds of filed instruments
and documents that the officials must file instruments which appear regular on its
9 See, e.g., Cargill v. Garland, 57 F. 4th 447, 465–468 (CA5 2023) (plurality opinion) (May the
Government waive reliance on Chevron? Does Chevron apply to agency interpretations of statutes imposing criminal penalties? Does Chevron displace the rule of lenity?).
Page 31 of 44 face. Mossman v. Banatex, LLC, 479 S.W.3d 854, 861 (Tex. App. 2015), citing
TEX.ATT'Y GEN. OP. No. LO–98–016 (1998) ("If a document covered by a filing
statute is regular on its face, the clerk may not refuse to file it based on extraneous
facts.").10 The Board, under the NPA and Board Rules, has set out a process for the
renewal of licenses that requires the filing of an instrument for license renewal,
which the Appellant did file on or about April 7, 2023. AR, at 598–607, Staff’s
Exhibit 5.
There is case law which supports this assertion that renewal of a professional
license is a ministerial act on the part of the Board. In Texas State Board of Medical
Examiners v. Mann, the Texas State Board of Medical Examiners (now called the
Texas Medical Board) refused to renew the license to practice medicine of Dr.
Nathan Mann. Texas State Bd. Of Med. Examiners v. Mann 413 S.W.2d 382 (Tex.
1967). Dr. Mann’s license had been revoked in 1958 and was subject to a subsequent
lawsuit for judicial review under Article 4506, which allowed for a trial de novo at
that time. Id., at 382. The lawsuit was dismissed, and the court found the dismissal
terminated the Medical Board action, and since Article 4506 at the time called for a
10 See also TEX.ATT'Y GEN. OP. JM–166 (1984) ("This office has repeatedly held that a county
clerk acts in a ministerial capacity in receiving certificates of nomination and in placing names of nominees on the general election ballot. Where the certificate is regular on its face, the county clerk has neither the duty nor authority officially to determine questions of regularity or irregularity, a process which would depend upon an ascertainment and determination of facts extraneous to the certificate.").
Page 32 of 44 de novo trial that meant Dr. Mann’s license was uncancelled and unrevoked. Id., at
385. And since Dr. Mann’s license was thus an active license, “issuance of the
(renewal) license by the (Medical) Board was a ministerial duty.” Id. As applied in
this case, the renewal of a nursing license that is otherwise not revoked or delinquent
is a ministerial act by the Board, and a license must be renewed on the payment of
the fee and certification of continuing nursing education. TEX. OCC. CODE §
301.301–308; Mann, 413 S.W.2d at 385.
Nothing in the Board’s rules indicates that the Texas BON has the discretion
to deny the renewal of a license during the pendency of an investigation that may
lead to disciplinary action. In this case, the Appellant filed a valid renewal
application on or about April 7, 2023, while she held a valid, active nursing license.
The Board initially asserted a denial of renewal of her license, AR, at 37–38 but did
not actively list her denial of renewal when her license initially expired.11 Nowhere
in the Findings of Fact or Conclusions of Law does the PFD address the requirements
or standard for renewal of Appellant’s nursing license. Nothing in the NPA or Board
rules requires the Appellant to carry a burden of persuasion to maintain her license
to practice nursing. A clear failure by a trial court to analyze or apply the law
correctly constitutes a clear abuse of discretion. Packer, 827 S.W.2d, at 839 - 840.
11 No explanation has been proffered for this action in the record.
Page 33 of 44 As the Appellant has complied with all of the requirements listed in the NPA and
Board Rules for renewal of her license, and renewal of the license is a ministerial
duty, the PFD and Board action to uphold the denial of renewal is a clear abuse of
discretion.
G. Revocation of Appellant’s Nursing License by Denying Renewal of Her License Violates Appellant’s Due Course of Law Rights Under the Texas Constitution and is Arbitrary and Capricious The Texas Constitution guarantees that '[n]o citizen of this State shall be
deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land. Texas Constitution
art. I, §19. A determination if the due course of law provisions of the Texas
Constitution attach to any particular situation is a two-step process. The first inquiry
is whether the Appellant has a liberty or property interest that is entitled to
constitutional "protection. Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d
54,61 (Tex. 2018). The second is to determine the level of procedural or substantive
due process due to protect the asserted liberty or property interest in the particular
situation. Mosley v. Texas Health & Human Servs. Comm'n, 593 S.W.3d 250, 264
(Tex. 2019).
As to the first factor, the Texas and United States Supreme Court have long
recognized that due-course and due-process clauses can protect work-related
economic interests, which have sometimes been characterized as the "right to earn a
Page 34 of 44 living,", Smith v. Decker, 312 S.W.2d 632, 633 (Tex. 1958), or the right to engage
in a "chosen profession. Greene v. McElroy, 360 U.S. 474, 492 (1959). In Goldberg
v. Kelly, an expansive notion of property rights was endorsed by the United States
Supreme Court:
Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property. It has been aptly noted that "[s]ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Goldberg v. Kelly, 397 U.S. 254, 262 n.8 (1970). As nursing is such a profession with a professional license, the right to engage in the
nursing profession when an individual holds a nursing license clearly implicates the
due course of law provisions of the Texas Constitution.
Statutes, and the corresponding regulations adopted by an agency pursuant to
statutory authority, are presumed constitutional. Patel v. Texas Dep't of Licensing &
Regulation, 469 S.W.3d 69, 87 (Tex. 2015). The party making an as-applied
challenge to an professional regulation under the Due Course of Law provision must
make a showing under either of the two Patel prongs: (1) the statute's purpose could
not arguably be rationally related to a legitimate governmental interest; or (2) when
considered as a whole, the statute's actual, real-world effect as applied to the
challenging party could not arguably be rationally related to, or is so burdensome as
to be oppressive in light of, the governmental interest. Id. Appellant absolutely does
Page 35 of 44 not contest that the Texas BON has a rational basis in the regulation and licensing
of nursing education programs – arguably that is one of the two major pillars of
regulation the Texas BON is charged with enforcing. See Texas Occupations Code
§301.157 et. seq.
Appellant does not dispute that the NPA and the corresponding regulations
adopted by the Board pursuant to statutory authority are presumed constitutional,
but this is an as-applied challenge to a professional regulation under the Due Course
of Law provision. Patel v. Texas Dep't of Licensing & Regulation, 469 S.W.3d 69,
87 (Tex. 2015). Further, Appellant acknowledges that the regulations promulgated
by the Board are rationally related to a legitimate governmental interest, but instead
Appellant argues here that when considered as a whole, the statute's actual, real-
world effect as applied to the challenging party is so burdensome as to be oppressive
in light of, the governmental interest. Id.
In this case, Appellant is asserting the second Patel factor, that the actual, real-
world effect is oppressively burdensome. In Patel, a group of eyebrow threaders
challenged a requirement for certain training in cosmetology that wasn’t relevant to
their trade. Patel, 469 S.W.3d at 89. The Texas Supreme Court held that the
irrelevant training was not only unreasonable or harsh, but so oppressive that it
violates the due course of law protected by the Texas Constitution. Id., at 90. In
opposition, Appellant notes that in Garrett v. Texas State Board of Pharmacy, a
Page 36 of 44 recent decision out of the Third Court of Appeals, found that a pair of doctors
challenging a ban against dispensing of dangerous drugs without a pharmacist
license failed to establish the ban was “so burdensome as to be oppressive” because
they were still practicing physicians. Garrett v. The Tex. State Bd. of Pharm., 03-21-
00039-CV, at *12–14 (Tex.App.–Austin, Jan 25, 2023, no pet.), quoting Patel, 469
S.W.3d at 87.
In this matter, Appellant acknowledges that she does already have a license to
practice nursing, but that license is the property interest that Appellant seeks to
protect. This is unlike the situation in Garrett, where the physicians were basically
attempting to expand the scope of their medical license, not defend against a state
action to revoke that license. Garrett, 03-21-00039-CV, at *13. Further, Appellant
notes that Appellant argues instead this case is more analogous to the situation in
Patel, where the eyebrow threaders were faced with an unreasonably oppressive
training requirement which barred them from entry into the profession. But this isn’t
the end of the analysis, because this is an as-applied claim and the underlying scheme
of regulation is not at issue here. Appellant agrees that the regulation of nursing
education is rationally related to the statutes and rules at issue.
What is missing, however, is a discussion of why the outcome in this case is
unreasonably oppressive. And to that argument, we must discuss the actions of the
Texas and Florida Boards of Nursing in relation to Mosley v. Texas Health and
Page 37 of 44 Human Services Commission. In Mosley, a nursing assistant was alleged to have
abused a patient, and the Health and Human Services Commission (HHSC) proposed
placing Mosley on a misconduct registry. Mosley v. Tex. Health & Human Servs.
Comm'n, 593 S.W.3d 250, 255 (Tex. 2019). After a hearing, Mosley decided to
appeal, and filed for judicial review without filing a motion for rehearing, which was
a prerequisite for judicial review. Id., at 256. Mosley took this action in reliance on
the letter accompanying the notice of violation from HHSC which quoted provisions
of a repealed rule that did not address the requirement to file a motion for rehearing
with the agency. Id. The Texas Supreme Court held that the misrepresentation
“effectively deprived Mosely of her right to judicial review and violated her right to
due process.” Id., at 263.
While Mosley directly addresses due process that is procedural in nature, the
actions of the Texas BON and the Florida BON are analogous under a due course of
law framework. While both agencies did not expressly mislead the Appellant, both
agencies accepted the educational credentials from the Appellant, and the Florida
BON and Florida Commission for Independent Education still considered the Sacred
Heart program to be an approved program at the time Appellant presented her
credentials. As in Mosley, Appellant relied on the representations embodied in the
granting of her nursing license to bolster her good faith belief her educational
credentials were granted lawfully and supported her claim to renewal of her nursing
Page 38 of 44 license. Thus, the Texas BON’s actions to deny the renewal of Appellant’s license,
essentially revoking her license, violate the Appellant’s right to due process under
the Texas Constitutions due course of law provisions.
Unlike the situation in Garrett where the physicians were basically attempting
to expand the scope of their medical license, Appellant argues instead this case is
more analogous to the situation in Patel where the eyebrow threaders were faced
with an unreasonably oppressive training requirement which barred them from entry
into the profession. Patel v. Texas Dep't of Licensing & Regulation, 469 S.W.3d at
87. Appellant is already licensed, has been practicing for more than three years
without any evidence to show that she is failing to care for patients adequately
according to the standards of nursing practice. See 22 TEX. ADMIN. CODE § 217.11
et. seq. 12 To revoke Appellant’s license at this time and cause her to have to go back
through nursing school was unreasonably oppressive in the light that in order to be
licensed by endorsement in the first place she was required to pass a national
licensing examination which tests for the requisite knowledge base required for a
licensed vocational nurse, pass a Texas jurisprudence and ethics examination,
submitted fingerprints for a criminal background check, paid the requisite fees, and
show proof that she was licensed in another jurisdiction at the time of application.
12 Appellant notes that the Board has not charged her with violations of the standards of
nursing practice under this Board Rule, and the Board presented no evidence of a negative practice history.
Page 39 of 44 22 TEX. ADMIN. CODE § 217.5(a). To make the Appellant essentially complete a full
nursing education program when she has already shown adequate core nursing
knowledge is arbitrary and capricious.
The primary complaint of the Board, and the reason why they continue to
argue that the Appellant did not complete a substantially equivalent nursing
education program, is that her nursing education program did not properly offer in
person, hands on clinical learning experiences. Notwithstanding Appellant’s
arguments at hearing that these clinical learning experiences were significantly
affected by the COVID-19 pandemic. See AR, at 0645, Staff’s Exhibit 13, ¶20; See
also AR, at 4753–57. The Board’s own rules suggest a solution that would allow for
a fair and reasonable resolution, that would not be unreasonably oppressive under
Patel: Under Board Rule 217.5(a)(1)(E)(i) or 217.5(a)(1)(F), a nurse who had gone
through a “clinical competency program” could provide evidence of verified clinical
practice, either in an employment setting or through an approved precepting
program, could cure an issue with a program deemed not substantially equivalent to
a Texas nursing program.13 22 Tex. Admin. Code §§ 217.5(a)(1)(E)(i); (a)(1)(F).
Appellant argues that the failure of the Board to consider all potential mechanisms
13 Appellant acknowledges that these programs are not strictly “clinical competency programs”
under the meaning of the term in TEXAS HEALTH & SAFETY CODE § 108.005, but that her ability to have passed a national licensing exam and complied with all other requirements for licensure
Page 40 of 44 to cure a nursing education that is allegedly not substantially equivalent makes this
unreasonably oppressive under Patel, and therefore arbitrary and capricious.
An agency's order is arbitrary and capricious if the order is not supported by
substantial evidence. Texas Health Facilities Comm'n v. Charter Medical-Dallas,
Inc., 665 S.W.2d 446, 454 (Tex.1984). Even if supported by substantial evidence,
however, an agency order may be arbitrary and capricious if a denial of due
process has prejudiced the litigant's rights or if the agency has improperly based its
decision on non-statutory criteria. Id.; Kawasaki Motors Corp. U.S.A. v. Texas
Motor Vehicle Comm'n, 855 S.W.2d 792, 794-95 (Tex.App.-Austin 1993, no writ).
Similarly, an agency decision may be found to be arbitrary and capricious if it is
based on legally irrelevant factors or if legally relevant factors were not considered
or if the agency reached an unreasonable result. Texas Department of Insurance v.
State Farm Lloyds, 233, 246 (Tex.App.-Austin 1993, no pet.). See also City of El
Paso v. Public Util. Comm’n., 883 S.W.2d 179, 184 (Tex. 1994).
CONCLUSION
Appellant argues that even if the education was not substantially equivalent
to a Texas program, her vocational nursing education program was approved by the
Florida Board of Nursing, she was licensed by the Florida Board of Nursing with
that education, and when the Texas Board of Nursing was presented with her
educational credentials, the Texas Board of Nursing accepted that education and
Page 41 of 44 granted her a vocational nursing license, essentially waiving complaints about her
educational preparation. In addition, SOAH ALJ Shenoy improperly found that the
Appellant had a burden of persuasion to show she was qualified to hold a license
when she filed her application for license renewal, Further, renewal of the
Appellant’s vocational nursing license was a ministerial act and the failure to renew
her license is a clear abuse of discretion. Finally, denial of license renewal is
essentially a revocation of the Appellant’s license which requires a finding of a
violation of Section 301.452 (b) of the Texas Occupations Code and without such a
finding violates her due course of law rights under the Texas Constitution and is
arbitrary and capricious. As the actions of the Texas Board of Nursing were arbitrary
and capricious, and thus was an abuse of discretion, this case should be remanded to
the Texas Board of Nursing for actions consistent with the arguments herein.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant, Edith
Okechukwu Omietimi, respectfully prays that this Honorable Court REVERSE the
Board of Nursing action denying renewal of her license as a Vocational Nurse and
REMAND to the Board of Nursing for proceedings consistent with the Court’s
ruling and for such other and further relief as the Appellant may show herself entitled
in law or equity.
Page 42 of 44 Respectfully submitted,
By: Marc M. Meyer Texas Bar No. 24070266 2300 Woodforest Pkwy N. STE 600 Montgomery, TX 77316 Tel. (281) 259-7575 Attorney for Appellant Edith Okechukwu Omietimi
CERTIFICATE OF SERVICE
I certify that on May 28th, 2024, a true and correct copy of the above and foregoing document was served on the following individual(s) at the location(s) and in the manner indicated below:
Kathy Johnson Assistant Attorney General Office of the Attorney General Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 VIA State efiling platform
John Vanderford Deputy General Counsel Texas Board of Nursing 1800 Congress Ave., Suite 10-200 Austin, TX 78701
Marc M. Meyer
Page 43 of 44 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Teex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P 9,4(i), if applicable, because it contains 10,236 words, excluding any parts exempted by Tex. R. App. P 9.4(i)(1).
Marc M. Meyer
Page 44 of 44 Appendix A 02/19/2025 04:05:28 PM Velva L. Price District Clerk Travis County D-1-GN-24-003659 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Marc Meyer on behalf of Marc Meyer Bar No. 24070266 marc@marcmeyerlawfirm.com Envelope ID: 101360607 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellant's Brief Status as of 5/29/2025 7:28 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Marc Meyer marc@marcmeyerlawfirm.com 5/28/2025 11:45:43 PM SENT
John Vanderford 24086670 jvanderford@gmail.com 5/28/2025 11:45:43 PM SENT
Katherine Johnson 24126964 kathy.johnson@oag.texas.gov 5/28/2025 11:45:43 PM SENT
Sandra Thornton sandra@marcmeyerlawfirm.com 5/28/2025 11:45:43 PM SENT
Associated Case Party: EdithOkechukwuOmietimi
Name BarNumber Email TimestampSubmitted Status
Marc Meyer marc@marcmeyerlawfirm.com 5/28/2025 11:45:43 PM SENT
Sandra Thornton sandra@marcmeyerlawfirm.com 5/28/2025 11:45:43 PM SENT
Edith Okechukwu Omietimi v. Texas Board of Nursing (Edith Okechukwu Omietimi v. Texas Board of Nursing) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.