22 Tex. Admin. Code § 101.8 - Persons with Criminal Backgrounds
(a)
The purpose of this section is to establish automatic sanctions, mandatory
sanctions, recommended sanctions, guidelines and criteria for the disciplinary
actions to be taken by the Board against applicants and licensees with criminal
backgrounds.
(b) Definitions. In
this section, the following terms shall apply:
(1) "Applicant" means a person applying for a
license, certificate, registration, permit, or other authorization that is
issued by the Board under the Dental Practice Act.
(2) "Conviction" shall mean a conviction
under federal law or the law of any state, district, or territory of the United
States. A conviction shall be considered "final" upon the imposition of a
sentence of imprisonment, parole, probation, community supervision, or other
punishment after such conviction. Pursuant to Texas Occupations Code §
53.021(e)(1),
the Board shall consider placement of a defendant under deferred adjudication
community supervision, or a similar deferral of adjudication of guilt under
federal or state law, as a final conviction for all licensing and disciplinary
purposes under the Texas Occupations Code and Board rules.
(3) "Final Disposition" shall mean the date
on which the applicant or licensee completed the imposed sentence after
conviction, including any period of parole or probation, or completed the
conditions of deferred adjudication community supervision or similar deferral
of adjudication of guilt, as shown by the certified records of the court or
supervising government authority.
(4) "Health Care Professional" shall have the
meaning provided in Texas Occupations Code §
108.051.
(5) "License" means a license, certificate,
registration, permit, or other authorization that is issued by the Board under
the Dental Practice Act.
(6)
"Licensee" means the holder of a license, certificate, registration, permit, or
other authorization that is issued by the Board under the Dental Practice
Act.
(7) "Offense Relating to the
Regulation of Dentists, Dental Hygienists or Dental Assistants" means any
criminal violation of the Texas Dental Practice Act; any criminal violation of
a law related to the billing and payment for dental care services; any criminal
violation of a law related to the treatment and care of patients; and any
criminal violation of a law related to the preservation and protection of
patient records or patient protected health information.
(c) Automatic Denial or Revocation of Dental
or Dental Hygiene License. Based upon Chapter 108, Subchapter B, of the Texas
Occupations Code, certain convictions shall result in automatic denial of an
application for a dental or dental hygiene license, or revocation of a current
dental or dental hygiene license. A person who is denied or a licensee who has
their license revoked under this subsection may reapply for the license, or
apply for reinstatement of the revoked license, if the conviction or deferred
adjudication is reversed, set aside, or vacated on appeal, or after the
expiration of the period for which the person is required to register as a sex
offender under Chapter 62, Code of Criminal Procedure.
(1) Automatic Denial of Application. The
following convictions shall result in automatic denial of an application for
licensure as a dentist or dental hygienist submitted on or after September 1,
2019.
(A) Any conviction resulting in the
requirement that the applicant register as a sex offender under Chapter 62,
Code of Criminal Procedure.
(B) Any
previous conviction of or placement on deferred adjudication community
supervision for the commission of a felony offense involving the use or threat
of force.
(C) Any previous
conviction or placement on deferred adjudication community supervision for the
commission of an offense under Texas Penal Code §§
22.011,
22.02,
22.021, or
22.04, or an offense under
the laws of another state or federal law that is equivalent to an offense under
one of those sections:
(i) committed when the
applicant held a license as a health care professional in this state or another
state;
(ii) committed in the course
of providing services within the scope of the applicant's health care
professional license; and
(iii) in
which the victim of the offense was a patient of the
applicant.
(2)
Automatic Revocation of License. The following convictions shall result in
automatic proceedings to revoke the license of a dentist or dental hygienist.
The Board shall revoke a license and update the Board's records to reflect the
revocation immediately on receiving notification pursuant to Texas Occupations
Code §
108.053(b).
If the Board receives notice through another source, the Board shall pursue a
revocation action through Texas Occupations Code §
263.003.
(A) Any conviction resulting in the
requirement that the licensee register as a sex offender under Chapter 62, Code
of Criminal Procedure.
(B) Any
conviction of or placement on deferred adjudication community supervision for
the commission of a felony offense involving the use or threat of
force.
(C) Any conviction or
placement on deferred adjudication community supervision for the commission of
an offense under Texas Penal Code §§
22.011,
22.02,
22.021, or
22.04, or an offense under
the laws of another state or federal law that is equivalent to an offense under
one of those sections:
(i) committed while
the licensee held a license as a health care professional in this state or
another state;
(ii) committed in
the course of providing services within the scope of the licensee's health care
professional license; and
(iii) in
which the victim of the offense was a patient of the
licensee.
(d) Imposition of Mandatory Sanctions for
Criminal Convictions. Based upon Texas Occupations Code §
263.006 and the
interests of public health and safety, the Board shall impose the following
mandatory sanctions on licensees for the following offenses. In the event that
a sanction from subsection (c) of this section is also applicable to a
licensee, the Board shall impose the automatic sanction instead of the sanction
under this subsection. The Board may not reinstate or reissue a license
suspended or revoked under this section unless an express determination is made
that the reinstatement or reissuance of the license is in the best interests of
the public and the licensee whose license was suspended or revoked. The Board
must base that determination on substantial evidence contained in an
investigative report.
(1) Felony Convictions.
The Board shall revoke the license of a current licensee who receives a final
felony conviction under federal law or the law of any state, district, or
territory of the United States.
(2)
Assaultive Offenses. The Board shall revoke the license of a current licensee
who receives a misdemeanor final conviction under Chapter 22 of the Texas Penal
Code, other than a misdemeanor punishable by fine only.
(3) Mandatory Registration as Sex Offender.
The Board shall revoke the license of a current licensee who receives a final
conviction requiring the licensee register as a sex offender under Chapter 62,
Texas Code of Criminal Procedure.
(4) Violation of Certain Court Orders,
Protective Orders, or Conditions of Bond. The Board shall revoke the license of
a current licensee who receives a Class A or Class B misdemeanor final
conviction under Section
25.07 or Section
25.071 of the Texas Penal
Code.
(e) Imposition of
Recommended Sanctions for Criminal Convictions. Based upon statutory
authorization and the interests of public health and safety, the Board shall
impose the following recommended sanctions for the following offenses, based on
the Board's determination that these offenses relate to the practice of
dentistry, and the Board's determination that allowing a licensee to practice
dentistry or provide dental services under a license issued by the Board
provides an opportunity for further criminal conduct. In the event that a
sanction from subsections (c) or (d) of this section is also applicable to a
licensee, the Board shall impose the automatic or mandatory sanction instead of
the recommended sanction under this subsection. If more than one recommended
sanction applies to the conviction of a licensee or applicant, the Board shall
apply the highest recommended sanction applicable. The Board may only increase
these recommended sanctions upon an affirmative finding that persuasive
aggravating factors require elevation of the sanction for the protection of
public health and safety. The Board shall reduce the following sanctions only
upon an affirmative finding of persuasive mitigating factors presented by the
applicant or licensee, as applicable. The Board shall articulate these
aggravating or mitigating factors in any order adopting the sanctions to be
imposed on the licensee.
(1) Current
Licensees. The Board shall impose the following disciplinary sanctions based
upon convictions which occurred after the Board issued a license.
(A) Conviction for Offense Relating to the
Regulation of Dentists, Dental Hygienists or Dental Assistants. Pursuant to
Texas Occupations Code §
263.002(a)(10),
the Board shall take disciplinary action for convictions related to the
practice of dentistry. The Board has determined that violations of law relating
to the practice of dentistry and dental hygiene are directly related to patient
safety and care, and holding a license allows for the opportunity to engage in
further criminal activity causing harm to the public. As a result, the Board
shall impose a five-year probated suspension for a final conviction for an
offense relating to the regulation of dentists, dental hygienists or dental
assistants.
(B) Conviction of
Misdemeanor Involving Fraud. Pursuant to Texas Occupations Code §
263.002(a)(2),
the Board shall take disciplinary action for misdemeanor convictions involving
fraud. The Board has determined that holding a license allows access to
sensitive patient records and information, which requires the licensee to
demonstrate the ability and capacity required to perform the duties and
discharge the responsibilities of a licensee acting in the best interests of
the public. As a result, the Board shall impose a one-year probated suspension
for a final conviction of a misdemeanor under Chapter 32 of the Texas Penal
Code, or an equivalent section of federal law or the law of any state,
district, or territory of the United States.
(C) Offenses under the Texas Controlled
Substances Act, Texas Dangerous Drugs Act and Related Offenses. The Board has
determined that holding a license allows access to controlled substances,
dangerous drugs and other substances that represent the potential for abuse and
drug diversion, which requires the licensee to demonstrate the ability and
capacity required to perform the duties and discharge the responsibilities of a
licensee acting in the best interests of the public. As a result, the Board
shall impose a one-year probated suspension on a current licensee who receives
a Class A misdemeanor final conviction under Chapter 481, 483, or 485, Texas
Health and Safety Code. The Board may impose a Reprimand for a Class B
misdemeanor final conviction pursuant to subsection (e)(1)(D) of this
section.
(D) Other Class A and B
Misdemeanor Offenses. The Board shall not automatically impose a disciplinary
sanction, but may impose a disciplinary sanction after weighing the
considerations required by Texas Occupations Code Chapters 53 and 263, and as
listed in subsections (g) - (i) of this section.
(2) License Applicants. The Board shall
impose the following disciplinary sanctions based upon convictions that
occurred prior to the submission of an application for a license.
(A) Felony Convictions. The Board has
determined that holding a license allows access to confidential patient records
and information, controlled substances and dangerous drugs, and patients in
sensitive and compromised physical conditions, which requires the applicant to
demonstrate the ability and capacity required to perform the duties and
discharge the responsibilities of a licensee acting in the best interests of
the public. Pursuant to Texas Occupations Code §
263.001(a)(5),
the Board shall deny an applicant who received a final felony conviction under
federal law or the law of any state, district, or territory of the United
States that is still pending final disposition. The Board shall impose a
five-year probated suspension on an applicant with a final conviction for a
felony that is less than five years from the date of final disposition. From
five to ten years after the date of final disposition, the Board shall impose a
one-year probated suspension. After ten years from the date of final
disposition, the Board shall take no action.
(B) Conviction for Offense Relating to the
Regulation of Dentists, Dental Hygienists or Dental Assistants. The Board has
determined that violations of Texas law relating to the practice of dentistry
are directly related to patient safety and care, and holding a license allows
for the opportunity to engage in further criminal activity causing harm to the
public. Pursuant to Texas Occupations Code §
263.001(a)(4) and
(a)(6), the Board shall deny an applicant who
received a final conviction for an offense relating to the regulation of
dentists, dental hygienists or dental assistants within the twelve months
preceding the date the applicant filed an application for a license. The Board
shall impose a five-year probated suspension on an applicant who received a
final conviction for an offense relating to the regulation of dentists, dental
hygienists or dental assistants that is still pending final disposition, but
which occurred prior to the twelve months preceding the date the applicant
filed an application for a license. The Board shall impose a one-year probated
suspension on an applicant with a final conviction for an offense relating to
the regulation of dentists, dental hygienists or dental assistants that is less
than five years from the date of final disposition. After five years from the
date of final disposition, the Board shall take no action.
(C) Mandatory Registration as Sex Offender.
The Board has determined that holding a license allows access to controlled
substances and dangerous drugs, and patients in sensitive and compromised
physical conditions, including minor patients and patients with mental and
physical disabilities, which requires the ability and capacity required to
perform the duties and discharge the responsibilities of a licensee acting in
the best interests of the public. As a result, if the applicant is not subject
to Texas Occupations Code §
108.052, the Board
shall deny an applicant who received a final conviction requiring the applicant
register as a sex offender under Chapter 62, Texas Code of Criminal
Procedure.
(D) Assaultive Offenses.
The Board has determined that holding a license allows access to patients in
sensitive and compromised physical conditions, which requires the applicant to
demonstrate the ability and capacity required to perform the duties and
discharge the responsibilities of a licensee acting in the best interests of
the public. As a result, if the applicant is not subject to Texas Occupations
Code §
108.052, the Board
shall deny an applicant who received a misdemeanor final conviction under
Chapter 22 of the Texas Penal Code, other than a misdemeanor punishable by fine
only, within the twelve months preceding the date the applicant filed an
application for a license. The Board shall impose a five-year probated
suspension on an applicant who received a final conviction for an assaultive
offense, other than a misdemeanor punishable by fine only, that is less than
five years from the date of final disposition. After five years from the date
of final disposition, the Board shall take no action.
(E) Violation of Certain Court Orders,
Protective Orders, or Conditions of Bond. The Board has determined that holding
a license allows access to confidential patient records and information, and
patients in sensitive and compromised physical conditions, which requires the
applicant to demonstrate the ability and capacity required to perform the
duties and discharge the responsibilities of a licensee acting in the best
interests of the public. As a result, the Board shall deny an applicant who
received a Class A or Class B misdemeanor final conviction under Section
25.07 or Section
25.071 of the Texas Penal
Code, within the twelve months preceding the date the applicant filed an
application for a license. The Board shall impose a five-year probated
suspension on an applicant who received a final conviction under Section
25.07 or Section
25.071 of the Texas Penal
Code that is less than five years from the date of final disposition. After
five years from the date of final disposition, the Board shall take no
action.
(F) Offenses under the
Texas Controlled Substances Act, Texas Dangerous Drugs Act and Related
Offenses. The Board has determined that holding a license allows access to
confidential patient records and information, controlled substances, and
dangerous drugs, which requires the applicant to demonstrate the ability and
capacity required to perform the duties and discharge the responsibilities of a
licensee acting in the best interests of the public. As a result, the Board
shall impose a one-year probated suspension on an applicant who received a
Class A misdemeanor final conviction under Chapter 481, 483, or 485, Texas
Health and Safety Code that is less than five years from the date of final
disposition. The Board may impose a Reprimand for a Class B misdemeanor final
conviction that is less than five years from the date of final disposition,
pursuant to subsection (e)(2)(G) of this section. After five years from the
date of final disposition, the Board shall take no action.
(G) Other Class A and B Misdemeanor Offenses.
The Board shall not automatically impose a disciplinary sanction, but may
impose a disciplinary sanction after weighing the considerations required by
Texas Occupations Code Chapters 53 and 263, and as listed in subsections (g) -
(i) of this section.
(f) Pursuant to Texas Occupations Code §
53.021(b),
the Board shall revoke a license upon the imprisonment of the licensee
following a felony conviction or deferred adjudication, felony community
supervision revocation, revocation of parole, or revocation of mandatory
supervision.
(g) The Board may
impose any authorized disciplinary action on an applicant or licensee because
of a person's conviction of a crime, other than a Class C misdemeanor, that:
(1) serves as a ground for discipline under
the Dental Practice Act or other Texas law applicable to the applicant or
licensee; or
(2) the Board has
determined directly relates to the duties and responsibilities of a licensee,
after consideration of each of the following factors:
(A) the nature and seriousness of the
crime;
(B) the relationship of the
crime to the purposes for requiring a license;
(C) the extent to which a license might offer
an opportunity to engage in further criminal activity of the same type as that
in which the applicant or licensee previously had been involved;
(D) the relationship of the crime to the
ability and capacity required to perform the duties and discharge the
responsibilities of the license; and
(E) any correlation between the elements of
the crime and the duties and responsibilities of the license.
(h) In determining the
appropriate disciplinary action to take where the Board is not mandated to take
a certain disciplinary action, the Board shall consider the following factors
listed in paragraphs (1) - (7) of this subsection when determining whether to
impose any authorized discipline:
(1) the
extent and nature of the person's past criminal activity;
(2) the age of the person when the crime was
committed;
(3) the amount of time
that has elapsed since the person's last criminal activity;
(4) the conduct and work activity of the
person before and after the criminal activity;
(5) evidence of the person's rehabilitation
or rehabilitative effort while incarcerated or after release;
(6) evidence of the person's compliance with
any conditions of community supervision, parole, or mandatory supervision;
and
(7) other evidence of the
person's fitness, including letters of recommendation.
(i) The applicant or licensee has the
responsibility, to the extent possible, to obtain and provide to the Board the
recommendations described by subsection (h)(7) of this section.
(j) An applicant or licensee shall disclose
in writing to the Board any arrest, conviction or deferred adjudication against
him or her at the time of initial application and renewal. Additionally, an
applicant or licensee shall provide information regarding any arrest,
conviction or deferred adjudication to the Board within 30 days of a Board
request. An application shall be deemed withdrawn if the applicant has failed
to respond to a request for information or to a proposal for denial of
eligibility or conditional eligibility within 30 days. Pursuant to Texas
Government Code §
2005.052, making a
false statement or material misrepresentation when applying or renewing a
license, refusing to provide requested information to the Board, or failing to
provide all of the criminal history requested by the Board represents grounds
for denial of the application or suspension or revocation of the
license.
(k) Notice of Pending
Denial of License. Prior to denying a license application for prior criminal
convictions as permitted by Texas Occupations Code Chapter 53, the Board shall
provide written notice to the person of the reason for the intended denial and
allow the person not less than 30 days to submit any relevant information to
the Board, as required by Texas Occupations Code §
53.0231.
Notes
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