22 Tex. Admin. Code § 203.16 - Consequences of Criminal Conviction
(a) The
Commission may suspend or revoke a license or deny a person from receiving a
license on the grounds that the person has been convicted of a felony or
misdemeanor that directly relates to the duties and responsibilities of an
occupation required to be licensed by Occupations Code, Chapter 651 (Chapter
651).
(b) The Commission may not
consider an arrest that did not result in the person's conviction or placement
on deferred adjudication community supervision.
(c) The Commissioners may place an applicant
or licensee who has been convicted of an offense on probation by authorizing
the Executive Director to enter into an Agreed Order with the licensee. The
Agreed Order shall specify the terms of the probation and the consequences of
violating the Order.
(d) If the
Commissioners suspend or revoke a license or deny a person from getting a
license, the Commission must notify the person of the decision in writing. That
notice must explain any factor(s) considered under subsection (f) or (g) of
this section that served as the basis for the action and notify the licensee or
applicant he or she has the right to appeal that decision to SOAH.
(e) The Commission shall immediately revoke
the license of a person who is imprisoned following a felony conviction, felony
community supervision revocation, revocation of parole, or revocation of
mandatory supervision. A person in prison is ineligible for licensure.
Revocation or denial of licensure under this subsection is not subject to
appeal at SOAH.
(f) The Commission
shall consider each of the following factors in determining what crimes
directly relate to the duties and responsibilities of an occupation required to
be licensed under Chapter 651, and therefore are included in subsection (h) of
this section:
(1) the nature and seriousness
of the crime;
(2) the relationship
of the crime to the purposes for requiring a license to engage in the
occupations of funeral directing and/or embalming;
(3) the extent to which a license might offer
an opportunity to engage in further criminal activity of the same type as the
person previously had been involved;
(4) the relationship of the crime to the
ability or capacity required to perform the duties and discharge the
responsibilities of the licensed occupation; and
(5) any correlation between the elements of
the crime and the duties and responsibilities of the licensed
occupation.
(g) If the
person has been convicted of a crime enumerated under subsection (h) of this
section or a crime that otherwise directly relates to the duties and
responsibilities of the occupation required to be licensed under Chapter 651,
the Commission shall consider the following in determining whether to take
action authorized by Texas Occupations Code Section
53.021:
(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.
(h) The following crimes are directly related
to the occupations of funeral directing or embalming, or a crime that otherwise
directly relates to the duties and responsibilities of the occupation required
to be licensed under Chapter 651, the Commission shall consider the following
determining whether to take action authorized by Texas Occupations Code Section
53.021:
(1) Class B misdemeanors classified by
Occupations Code §
651.602:
(A) acting or holding oneself out as a
funeral director, embalmer, or provisional license holder without being
licensed under Chapter 651 and the Rules of the Commission;
(B) making a first call in a manner that
violates Occupations Code §
651.401;
(C) engaging in a funeral practice that
violates Chapter 651 or the Rules of the Commission; or
(D) violating Finance Code, Chapter 154, or a
rule adopted under that chapter, regardless of whether the Texas Department of
Banking or another governmental agency takes action relating to the
violation;
(2) the
commission of acts within the definition of Abuse of Corpse under Penal Code,
§
42.08, because those acts
indicate a lack of respect for the dead;
(3) an offense listed in Article 42A.054,
Code of Criminal Procedure as provided by Occupations Code §
53.021(a)(2);
(4) a sexually violent offense, as defined by
Article 62.001, Code of Criminal Procedure as provided by Occupations Code
§
53.021(a)(3);
(5) the following crimes because these acts
indicate a lack of respect for human life and dignity:
(A) Murder;
(B) Assault;
(C) Sexual Assault;
(D) Kidnapping;
(E) Injury to a Child;
(F) Injury to an Elderly Person;
(G) Child Abuse;
(H) Harassment; or
(I) Arson;
(6) the following crimes because these acts
indicate a lack of principles needed to practice funeral directing and/or
embalming:
(A) Robbery;
(B) Theft;
(C) Burglary;
(D) Forgery;
(E) Perjury;
(F) Bribery;
(G) Tampering with a governmental record;
or
(H) Insurance claim fraud;
and
(7) the following
crimes because these acts indicate a lack of fitness to practice funeral
directing and/or embalming:
(A) delivery,
possession, manufacture or use of or the illegal dispensing of a controlled
substance, dangerous drug, or narcotic; or
(B) multiple (more than two) convictions for
driving while intoxicated or driving under the influence.
(i) Multiple violations of any
criminal statute shall be reviewed by the Commission because multiple
violations may reflect a pattern of behavior that renders the applicant unfit
to hold a funeral director's and/or embalmer's license.
(j) The Commission may not consider a person
to be convicted of an offense if the judge deferred further proceedings without
entering an adjudication of guilt, placed the person on community supervision,
and dismissed the proceedings at the end of the community supervision. However,
if the Commission determines that the licensure of the person as a funeral
director and/or embalmer would create a situation in which the person has the
opportunity to repeat the prohibited conduct, the Commission shall consider a
person to have been convicted regardless of whether the proceedings were
dismissed after a period of deferred adjudication if:
(1) the person was charged with any offense
described by Article 62.001(5) Code of Criminal Procedure;
(2) the person has not completed the term of
community supervision or the person completed the period of supervision less
than five years before the date of application; or
(3) a conviction of the offense would make
the person ineligible for the license by operation of law.
(k) Prior to taking action against a person
as authorized by Texas Occupations Code §
53.021, the
Commission shall provide written notice to the person that includes a statement
that the final decision of the Commission will be based on factors listed under
subsection (f) or subsection (g) of this section and that the person has the
responsibility to provide evidence regarding those factors. The notice shall
allow the person no less than 30 days from receiving the notice to submit any
relevant evidence or information.
Notes
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