SECTION 281.64. Sanctions for Criminal Offenses

(a) The guidelines for disciplinary sanctions apply to criminal convictions and to deferred adjudication community supervisions or deferred dispositions, as authorized by the Act, for all types of licensees and registrants including applicants for such licenses and registrations issued by the board. The board considers criminal behavior to be highly relevant to an individual's fitness to engage in pharmacy practice and has determined that the sanctions imposed by these guidelines promote the intent of §551.002 of the Act. The "date of disposition," when referring to the number of years used to calculate the application of disciplinary sanctions, refers to the date a conviction, a deferred adjudication, or a deferred disposition is entered by the court. The use of the term "currently on probation" is construed to refer to individuals currently serving community supervision or any other type of probationary term imposed by an order of a court for a conviction, deferred adjudication, or deferred disposition.

(b) The sanctions imposed by the guidelines can be used in conjunction with other types of disciplinary actions, including administrative penalties, as outlined in this section.

(c) The board has determined that the nature and seriousness of certain crimes outweigh other factors to be considered in §281.63(g) of this title (relating to Considerations for Criminal Offenses) and necessitate the disciplinary action listed in paragraphs (1) - (3) of this subsection. In regard to the crimes enumerated in this rule, the board has weighed the factors, which are required to be considered from §281.63(g) of this title, in a light most favorable to the individual, and even if these factors were present, the board has concluded that the following sanctions apply to individuals with the criminal offenses as described in paragraphs (1) - (3) of this subsection:

(1) Criminal offenses which require the individual to register with the Department of Public Safety as a sex offender under Chapter 62, Code of Criminal Procedure--denial or revocation;

(2) Felony offenses:

(A) Drug-related offenses, such as those listed in Chapter 481 or 483, Health and Safety Code:

(i) Offenses involving manufacture, delivery, possession with intent to deliver, or illegal dispensing:

(I) Currently on probation--denial or revocation;

(II) 0-5 years since date of disposition--denial or revocation;

(III) 6-10 years since date of disposition--denial or revocation;

(IV) 11-20 years since date of disposition--5 years probation;

(V) Over 20 years since date of disposition--3 years probation;

(ii) Offenses involving possession of drugs, fraudulent prescriptions, theft of drugs, or alcohol:

(I) If the offense involved only the personal use of the drugs or alcohol and/or chemical impairment:

(-a-) Currently on probation--90-day to one-year suspension followed by 5 years probation;

(-b-) 0-5 years since date of disposition--5 years probation;

(-c-) 6-10 years since date of disposition--3 years probation;

(-d-) 11-20 years since date of disposition--1 year probation; or

(II) Otherwise:

(-a-) Currently on probation--denial or revocation;

(-b-) 0-5 years since date of disposition--denial or one-year suspension followed by 5 years probation;

(-c-) 6-10 years since date of disposition--180-day suspension followed by 5 years probation;

(-d-) 11-20 years since date of disposition--3 years probation;

(-e-) Over 20 years since date of disposition--1 year probation;

(B) Offenses involving sexual contact or violent acts, or offenses considered to be felonies of the first degree under the Texas Penal Code:

(i) Currently on probation--denial or revocation;

(ii) 0-5 years since date of disposition--denial or revocation;

(iii) 6-10 years since date of disposition--denial or revocation;

(iv) 11-20 years since date of disposition--5 years probation;

(v) Over 20 years since date of disposition--1 year probation;

(C) Other felony offenses:

(i) Currently on probation--denial, revocation, or 30- to 180-day suspension followed by 5 years probation;

(ii) 0-5 years since date of disposition--5 years probation;

(iii) 6-10 years since date of disposition--3 years probation;

(iv) 11-20 years since date of disposition--1 year probation;

(3) Misdemeanor offenses:

(A) Drug-related offenses, such as those listed in Chapter 481 or 483, Health and Safety Code:

(i) Offenses involving manufacture, delivery, or possession with intent to deliver:

(I) Currently on probation--denial or revocation;

(II) 0-10 years since date of disposition--30- to 180-day suspension followed by 5 years probation;

(III) 11-20 years since date of disposition--1 year probation;

(ii) Offenses involving possession of drugs, fraudulent prescriptions, or theft of drugs:

(I) Pharmacists:

(-a-) 0-5 years since date of disposition--5 years probation;

(-b-) 6-10 years since date of disposition--3 years probation;

(II) Pharmacy Technicians and Pharmacy Technician Trainees:

(-a-) 0-5 years since date of disposition and offense determined to be in violation of §568.003(a)(5) or (9) of the Act--5 years probation;

(-b-) 0-5 years since date of disposition and determined not to be in violation of §568.003(a)(5) or (9) of the Act--1 year probation;

(-c-) 6-10 years since date of disposition and offense determined to be in violation of §568.003(a)(5) or (9) of the Act--3 years probation;

(III) If 0-5 years since date of disposition, and the offense did not involve only personal use of the drugs and/or chemical impairment, an additional 30- to 90-day suspension will be imposed preceding the probation for the offenses in this clause;

(B) Intoxication and alcoholic beverage offenses as defined in the Texas Penal Code, if two such offenses involving intoxication due to ingestion of alcohol occurred in the previous five years or if one such offense involving intoxication due to ingestion of controlled substances or dangerous drugs occurred in the previous five years:

(i) Pharmacists: 0-5 years since date of disposition and offense determined to be in violation of §565.001(a)(4) or (7) of the Act--5 years probation;

(ii) Pharmacy Technicians and Pharmacy Technician Trainees: 0-5 years since date of disposition and offense determined to be in violation of §568.003(a)(5) or (9) of the Act--5 years probation;

(C) Other misdemeanor offenses involving moral turpitude: 0-5 years since date of disposition--reprimand.

(d) When an individual has multiple criminal offenses or other violations, the board shall consider imposing additional more severe types of disciplinary sanctions, as deemed necessary.

(e) An individual who suffers from an impairment as described by §565.001(a)(4) or (7) or §568.003(a)(5) or (9), may provide mitigating information including treatment, counseling, and monitoring in order to mitigate the sanctions imposed.

Source Note: The provisions of this §281.64 adopted to be effective September 3, 2006, 31 TexReg 6722; amended to be effective March 25, 2007, 32 TexReg 1508; amended to be effective March 6, 2008, 33 TexReg 1783; amended to be effective June 8, 2008, 33 TexReg 4304; amended to be effective September 7, 2008, 33 TexReg 7218; amended to be effective May 30, 2010, 35 TexReg 4164; amended to be effective September 14, 2010, 35 TexReg 8356; amended to be effective December 7, 2010, 35 TexReg 10689; amended to be effective June 7, 2012, 37 TexReg 4046; amended to be effective September 9, 2012, 37 TexReg 6916; amended to be effective June 19,2014, 39 TexReg 4655