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Banda v. Texas Board of Nursing

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 24, 2018

AMY JEANETTE BANDA, Appellant,
v.
TEXAS BOARD OF NURSING, Appellee.

          On appeal from the 200th District Court of Travis County, Texas.

          Before Chief Justice Valdez and Justices Benavides and Longoria

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE

         This is an appeal from the district court's judgment affirming an order and opinion of the Texas Board of Nursing (the Board) to sanction appellant Amy Jeanette Banda with a two-year probated suspension of her nursing license for violation of the professional boundaries of the nurse-patient relationship. See 22 Tex. Admin. Code Ann. § 217.1(29) (West, Westlaw through 2017 1st C.S.). We reverse and remand.

         I. BACKGROUND

         On May 27, 2013, Banda, a registered nurse, and the Board entered into an agreed order related to a series of incidents that occurred in February of 2013 which involved the violation of professional boundaries by Banda with a patient, M[1]. In January 2014, a secondary complaint was received by the Board which alleged a continuing violation of professional boundaries by Banda with M occurring between May 2013 and January 2014, after M had been discharged from Banda's care. Following an investigation by the Board, the Board filed a notice of hearing in June 2014, and a contested hearing was held in the State Office of Administrative Hearings (SOAH) on August 28, 2014. The hearing was presided over by an Administrative Law Judge (ALJ). In October 2014, the ALJ who presided over the hearing issued the 2014 Proposal for Decision (PFD). In his 2014 PFD, the ALJ found that the nurse-patient relationship between Banda and M had ended at the time of the alleged secondary violation of professional boundaries, and thus Banda had not violated the Nursing Practice Act. In the 2014 PFD, the ALJ alternatively offered an analysis concluding that if the Board determined the nurse-patient relationship between Banda and M had not ended at the time of the alleged conduct, Banda's license should be revoked.

         The Board Staff filed exceptions to the 2014 Proposal claiming that the ALJ had not properly applied prior precedent. 1 Tex. Admin. Code Ann. § 155.507(b) (West, Westlaw through 2017 1st C.S.). Banda filed a reply asserting that the analysis was correct. Id. The ALJ issued an exceptions letter recommending the Board overrule the exceptions. Id. at §155.507(c).

         In April 2015, the Board reviewed the 2014 PFD, the exceptions, and the responses to the exceptions by both Banda and the ALJ, and found that the ALJ did not properly apply the Board's law and precedent to the facts of the case. The Board remanded the case back to the SOAH for the ALJ to issue a new proposal for decision consistent with the Board's findings. On remand, in his Proposal for Decision on Remand (Remand PFD) the ALJ provided an amended set of findings of fact and conclusions of law in which he found that if the nurse-patient relationship continued in May 2013, Banda violated professional boundaries. The ALJ further instructed the Board to add conclusions of their own which would address the ultimate determination of when the nurse-patient relationship ended by interpreting its own law.

         Prior to the Board considering the Remand PFD, Banda filed a plea to the jurisdiction and exceptions to the Remand PFD, arguing improper procedure and raising issues related to the ALJ's incomplete findings of fact and conclusions of law. The ALJ denied the plea to the jurisdiction and exceptions. Subsequently, in October 2015, the Board reviewed the Remand PFD, the Staff's recommendations, and Banda's recommendations. The Board accepted the Staff's recommendations and suspended Banda's nursing license but probated the suspension for two years with probationary stipulations.

         Banda filed a motion for rehearing which was overruled by operation of law. She then filed her petition and application for temporary injunction in the district court. The district court denied Banda's requested relief. This appeal followed.

         II. DISCUSSION

         By six issues, Banda asserts: (1) the Board did not have the authority to remand a PFD to the SOAH, see Tex. Gov't Code Ann. § 2001.058 (West, Westlaw through 2017 1st C.S.); (2) the remand of a PFD violated principles of collateral estoppel; (3) the ALJ failed to offer complete findings of fact and conclusions of law, see id. § 2001.062(c); (4) the Board does not have the authority to adopt additional findings of fact and conclusions of law in the Remand PFD, see id. § 2001.058; (5) the ALJ improperly admitted evidence; and (6) the order and opinion of the Board on Remand is not supported by substantial evidence based on prior decisions of the Board.

         A. Standard of Review and Applicable Law

         The Administrative Procedure Act (APA) governs judicial review of a final agency order, and requires the court to reverse or remand an agency's decision that prejudices the appellant's substantial rights because the administrative findings, inferences, conclusions, or decisions: (1) violate a constitutional or statutory provision; (2) exceed the agency's statutory authority; (3) were made through unlawful procedure; (4) are affected by other error of law; (5) are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (6) are arbitrary or capricious or characterized by abuse of ...


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