Texas Board of Nursing v. Amy Bagley Krenek, RN

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00543-CV

Texas Board of Nursing, Appellant

v.

Amy Bagley Krenek, RN, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT

NO. D-1-GN-09-001195, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

MEMORANDUM OPINION

In this administrative appeal, the Texas Board of Nursing (the Board) appeals from

the district court’s judgment that reversed portions of the Board’s final order disciplining appellee

Amy Bagley Krenek, RN, by warning with stipulations. The district court struck the Board’s

stipulation that prohibited Krenek’s use of alcohol for one year of employment and the Board’s

discussion in its order regarding documentation of the administration of medications. Because we

conclude that this case is moot, we vacate the judgment of the district court and dismiss this case for

want of jurisdiction. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012) (“If a case

is or becomes moot, the court must vacate any order or judgment previously issued and dismiss the

case for want of jurisdiction.” (citing Speer v. Presbyterian Children’s Home & Serv. Agency,

847 S.W.2d 227, 229–30 (Tex. 1993)).

BACKGROUND

The Board brought charges against Krenek for alleged violations of the Texas Nursing

Practice Act (the Act) and Board rules. See Tex. Occ. Code § 301.452(b) (listing grounds for

disciplinary action). The Board’s charges included that Krenek had tested positive for drugs. See id.

§ 301.452(b)(10) (subjecting a person to disciplinary action for “unprofessional . . . conduct that, in

the Board’s opinion, is likely to deceive, defraud, or injure a patient or the public”); 22 Tex. Admin.

Code § 217.12 (10)(D) (Texas Board of Nursing, Unprofessional Conduct) (defining “unprofessional

conduct” to include “positive drug screen for which there is no lawful prescription”). The Board also

charged Krenek, among other charges, with the failure to completely and accurately document the

administration of medications. See 22 Tex. Admin. Code §§ 217.11(1)(D) (iv) (including within

standards of nursing practice that nurses “shall . . . accurately and completely report and document

. . . administration of medications and treatments”), .12(1)(A) (defining “unprofessional conduct” to

include failing to practice nursing in conformity with minimum standards in rule 217.11).

Krenek disputed the charges, and the matter was referred to the State Office of

Administrative Hearings (SOAH) for a contested case hearing. See Tex. Occ. Code § 301.454. After

a three-day hearing, the administrative law judge (ALJ) issued her proposal for decision (PFD) with

findings of fact and conclusions of law. The ALJ found that Krenek tested positive for drugs on two

occasions.1 The ALJ, however, found that the Board did not prove its other charges, including its

1

Among her findings of fact, the ALJ found:

• In a random drug screen, Respondent tested positive for Propoxyphene on

January 21, 2005, and did not have a prescription filed with TPAPN [Texas

Peer Assistance Program for Nurses] for the drug.

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charges related to documentation. Based upon her findings of fact and conclusions of law, the ALJ

concluded that Krenek “should be issued a written warning” pursuant to section 301.453(a) of the

Occupations Code. See id. § 301.453(a) (listing sanctions that Board may impose for violation of

section 301.452(b)).

In its opinion and order, the Board adopted the ALJ’s findings of fact and conclusions

of law except the ALJ’s conclusion of law addressing the appropriate sanction. The Board modified

the conclusion to read as follows:

Based on the Findings of Fact and Conclusions of Law, Respondent should be issued

a written WARNING with STIPULATIONS under the provisions of the Occupations

Code § 301.453(a).

See id.; see also 22 Tex. Admin. Code § 213.33(g)(2)(C) (requiring that warning “include reasonable

probationary stipulations”). The stipulations included a requirement that Krenek abstain from the use

of alcohol as well as other controlled substances during the stipulation period of one year of

employment and that she be subject to random alcohol and drug screens. The Board also discussed

in its order the applicable standards for documenting the administration of medication, expressly

disagreeing with several of the ALJ’s statements in her discussion section of the PFD.

Krenek sought judicial review of the Board’s order. See Tex. Occ. Code § 301.555

(providing judicial review to “person against whom the board has taken adverse action” under chapter

• Respondent tested positive for methamphetamines and amphetamines on

July 21, 2006, a day on which she was not on duty or call [at her place of

work]. Respondent was dismissed from TPAPN.

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301 of Occupations Code); Tex. Gov’t Code § 2001.171 (providing right to judicial review to a

person “who is aggrieved by a final decision in a contested case”). She challenged the Board’s

modification of the ALJ’s sanction of a warning only to a warning with stipulations and the

requirement that she abstain from alcohol consumption when she was not working or on call. She

also challenged the Board’s discussion in its order regarding documentation. She contended that this

language substantially prejudiced her right to practice her profession and earn a living. See Tex.

Gov’t Code § 2001.174 (allowing court to reverse and remand if “substantial rights of the appellant

have been prejudiced” and, among other grounds, “the administrative findings, inferences,

conclusions, or decisions are . . . not reasonably supported by substantial evidence”).

After a hearing and briefing by the parties, the district court reversed the Board’s order

in part. The district court concluded that the Board’s discussion in its order “regarding

documentation” was not supported by substantial evidence and struck that language from the order.

The district court also concluded that there was “no evidence that Plaintiff has abused or is likely to

abuse alcohol” and that the Board “may not prohibit Plaintiff’s use of alcohol except to prevent any

effects on the performance of her employment duties.” The district court struck “such prohibition”

in the Board’s order. Based upon its conclusion that the order was otherwise supported by substantial

evidence, the district court affirmed the Board’s order in all other respects. The district court

expressly affirmed the Board’s authority “to require Plaintiff to submit to whatever means of

testing—as part of the stipulations in the Order—which it determines is reasonable,” including

“random urinalysis testing.”

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ANALYSIS

The Board raises two issues on appeal. In its first issue, the Board contends that the

trial court erred by striking the portion of the Board’s order discussing documentation.2 In its second

2

The trial court struck the following language from the Board’s order:

Additionally, to the extent that a conclusion was reached by the ALJ regarding a

nurse’s duty to document the administration of medications and treatments, the Board

reiterates its position that a nurse has an affirmative duty to accurately and

completely report and document the administration of medications and treatments.

The ALJ states on page 2 of the PFD that no rule or policy was presented to establish

that the person withdrawing the medication is the person who is supposed to

administer it and document the administration. Further, the ALJ states on page 5 of

the PFD that neither the documentary evidence nor the testimony of Carol Marshall

establishes the obligation that the nurse who withdraws the medication is also the one

who is to administer the medication and document that the medication was

administered. Although there are no Findings of Fact or Conclusions of Law that

reflect these statements made in the PFD, the Board disagrees that one’s failure to

document the administration or non-administration of a narcotic is not a fundamental

omission in the minimum duty of a nurse. The Occupations Code § 301.002(2)

defines professional nursing as necessarily involving the administration of a

medication or treatment as ordered by a physician, podiatrist, or dentist. Further, the

Board has adopted rules specifically addressing the standard of nursing practice

applicable to the administration and documentation of medication and treatments.

22 Texas Administrative Code § 217.11(1)(D)(iv) expressly requires all vocational

nurses, registered nurses, and registered nurses with advanced practice authorization

to accurately and completely report and document the administration of medications

and treatments. If it were an accepted standard practice that a nurse could withdraw

narcotic medication without documenting the administration of the medication, the

threat to the public health and safety would be immediate and catastrophic.

Subsequent care givers would not know what medications a patient had been given

or if the medications were effective. Nurses attempting to follow a doctor’s orders

could not be confident that an overdose would not be at risk. A nurse has an

affirmative duty to accurately and completely report and document the administration

of medications and treatments. Any conclusion or statement in the PFD that is not

a minimum standard of nursing to assure the documentation of one’s administration

of medication is not to be considered Board policy or precedent.

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issue, the Board contends that the trial court erred by determining that the Board’s stipulation

requiring Krenek to submit to random screening for alcohol use was inappropriate.3

The Board has filed a post-submission brief advising this Court that its second issue

is now moot because Krenek has completed all of the stipulations in the Board’s order, including

screening for alcohol use, and that her license is current without restrictions. The Board also urges

that Krenek’s challenge in her suit for judicial review as to this issue is moot for the same reason.

The Board, however, maintains that its first issue concerning documentation is not moot.

Krenek filed a response to the Board’s post-submission brief. She agrees that she has

complied with the alcohol screening requirement, but she contends that the Board’s second issue is

not moot as to the “suggestion made by the Board’s imposition of [the alcohol testing] requirement.”

She urges that there was no evidence that she was “an addict, an alcoholic, had a substance abuse

problem, or was found to have engaged in ‘intemperate use’ of controlled substances or alcohol.” She

also asserts that the Board’s issue of documentation is not moot. She, however, sought temporary

relief from this Court as to the provisions of the Board’s order requiring screening for alcohol use on

the ground that she planned to return to work and, therefore, that the parties’ dispute regarding that

provision would become moot during the pendency of the appeal. She also chose not to appeal the

district court’s judgment in which the district court expressly affirmed the Board’s authority “to

3

Among her findings of fact, the ALJ found that Krenek had “no documented problems with

alcohol abuse.” The district court also concluded that there was “no evidence that Plaintiff has

abused or is likely to abuse alcohol” and that the Board “may not prohibit Plaintiff’s use of alcohol

except to prevent any effects on the performance of her employment duties.”

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require Plaintiff to submit to whatever means of testing—as part of the stipulations in the

Order—which it determines is reasonable,” including “random urinalysis testing.”

Appellate courts are prohibited from deciding moot controversies. See In re Kellogg

Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (noting that case becomes moot if controversy

ceases to exist on appeal); William v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that “a

controversy must exist between the parties at every stage of the legal proceeding, including the

appeal” for a plaintiff to have standing and that, if a controversy ceases to exist, the case becomes

moot); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (concluding appeal

moot because “there ceased to be a live controversy” between the parties and dismissing cause as

moot); Texas Alcoholic Beverage Comm’n v. Carlin, 477 S.W.2d 271, 273–74 (Tex. 1972) (affirming

court of appeals’s dismissal of cause seeking to set aside an administrative order suspending a permit

and license and concluding that appeal was moot based upon subsequent actions of parties and that

“particular controversy that gave rise to this suit, i.e. the dispute over the suspension of . . . permit and

. . . license, has become simply an academic question”). “A case becomes moot when: (1) it appears

that one seeks to obtain a judgment on some controversy, when in reality none exists; or (2) when one

seeks a judgment on some matter which, when rendered for any reason, cannot have any practical

legal effect on a then-existing controversy.” Texas Health Care Info. Council v. Seton Health Plan

Inc., 94 S.W.3d 841, 846–47 (Tex. App.—Austin 2002, pet. denied); see Carlin, 477 S.W.2d at 273

(noting that “judgment upholding or overturning the suspension order will not finally resolve any

existing controversy between the parties”).

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As noted above, Krenek accepted the district court’s judgment, choosing not to pursue

an appeal to this Court, and the parties agree that she has now fully complied with the Board’s

stipulations, including the Board’s requirement for her to submit to alcohol screening during the

period of one year of employment. Even were we to sustain the Board’s issues then, the result would

be the same: Krenek’s license would be current without restrictions. In this context, we would be

issuing an advisory opinion were we to address the Board’s issues. See Tex. R. App. P. 47.1;

Gonzalez, 33 S.W.3d at 822 (noting that Texas courts do not have jurisdiction to issue advisory

opinions); Cooper v. Coe, 188 S.W.3d 223, 229 (Tex. App.—Tyler 2005, pet. denied) (noting that

advisory opinions are forbidden by the Texas Constitution); see also Tex. Const. art. II, § 1.4 Further,

any action that we take to affirm or reverse the Board’s order at this point would have no “practical

legal effect on a then-existing controversy.” See Seton Health Plan Inc., 94 S.W.3d at 846–47. We

therefore conclude that there is no longer a live controversy between the parties, and that this case is

moot. See id.; Carlin, 477 S.W.2d at 273; see also Lara, 52 S.W.3d at 184; Gonzalez, 33 S.W.3d at

822; Speer, 847 S.W.2d at 229.

CONCLUSION

For these reasons, we vacate the judgment of the district court and dismiss this case

as moot. See Heckman, 369 S.W.3d at 162.

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Neither party contends that an exception to the mootness doctrine applies. See General

Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (discussing “capable of

repetition” and “collateral consequences” exceptions to mootness doctrine); University

Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.—Austin 1993, no

writ) (same).

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__________________________________________

Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Dismissed as Moot

Filed: October 2, 2013

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