37 Tex. Admin. Code § 35.4 - Guidelines for Disqualifying Criminal Offenses
(a) The private security profession is in a
position of trust; it provides services to members of the public that involve
access to confidential information, to private property, and to the more
vulnerable and defenseless persons within our society. By virtue of their
licenses, security professionals are provided with greater opportunities to
engage in fraud, theft, or related property crimes. In addition, licensure
provides those predisposed to commit assaultive or sexual crimes with greater
opportunities to engage in such conduct and to escape detection or
prosecution.
(b) Therefore, the
commission determined that offenses detailed in subsection (c) of this section
directly relate to the duties and responsibilities of those who are licensed
under the Act. Such offenses include crimes under the laws of another state or
the United States, if the offense contains elements that are substantially
similar to the elements of an offense under the laws of this state. Such
offenses also include those "aggravated" or otherwise enhanced versions of the
listed offenses.
(c) The list of
offenses in this subsection is intended to provide guidance only and is not
exhaustive of either the offenses that may relate to a particular regulated
occupation or of those that are independently disqualifying under Texas
Occupations Code, §
53.021(a)(2) -
(4). With the exception of those offenses
listed in paragraphs (6)(A) - (6)(F) of this subsection, the offenses listed in
paragraphs (1) - (5) and (7) - (14) of this subsection are general categories
that include all specific offenses within the corresponding chapter of the
Texas Penal Code. In addition, after due consideration of the circumstances of
the criminal act and its relationship to the position of trust involved in the
particular licensed occupation, the commission may find that an offense not
described below also renders a person unfit to hold a license. In particular,
an offense that is committed in one's capacity as a licensee under the Act, or
an offense that is facilitated by one's license under the Act, will be
considered related to the licensed occupation and may render the person unfit
to hold the license.
(1) Arson, damage to
property--Any offense under the Texas Penal Code, Chapter 28.
(2) Assault--Any offense under the Texas
Penal Code, Chapter 22.
(3)
Bribery--Any offense under the Texas Penal Code, Chapter 36.
(4) Burglary and criminal trespass--Any
offense under the Texas Penal Code, Chapter 30.
(5) Criminal homicide--Any offense under the
Texas Penal Code, Chapter 19.
(6)
Disorderly conduct--Any of the offenses detailed in paragraphs (6)(A) - (6)(F),
but only if committed by an applicant for, or holder of, a license as a
security officer, personal protection officer, or private investigator:
(A) 42.01 (a)(7) and 42.01(a)(8) only -
discharge of firearm in public place, and display of firearm or other deadly
weapon in public place calculated to alarm.
(B) 42.06, False Alarm or Report.
(C) 42.062, Interference with Emergency
Request for Assistance.
(D) 42.07,
Harassment.
(E) 42.072,
Stalking.
(F) 42.12, Discharge of
Firearm in Certain Municipalities.
(7) Fraud--Any offense under the Texas Penal
Code, Chapter 32.
(8)
Kidnapping--Any offense under the Texas Penal Code, Chapter 20.
(9) Obstructing governmental operation--Any
offense under the Texas Penal Code, Chapter 38.
(10) Perjury--Any offense under the Texas
Penal Code, Chapter 37.
(11)
Robbery--Any offense under the Texas Penal Code, Chapter 29.
(12) Sexual offenses--Any offense under the
Texas Penal Code, Chapter 21.
(13)
Theft--Any offense under the Texas Penal Code, Chapter 31.
(14) In addition:
(A) An attempt to commit a crime listed in
this subsection;
(B) Aiding and
abetting in the commission of a crime listed in this subsection; and
(C) Being an accessory (before or after the
fact) to a crime listed in this subsection.
(d) A felony conviction for an offense listed
in subsection (c) of this section is disqualifying for ten (10) years from the
date of conviction.
(e) A Class A
misdemeanor conviction for an offense listed in subsection (c) of this section
is disqualifying for five (5) years from the date of conviction.
(f) Independently of whether the offense is
otherwise described or listed in subsection (c) of this section, a conviction
for an offense listed in Texas Code of Criminal Procedure, Article 42.12
§3g, or Article 42A.054, or that is a sexually violent offense as defined
by Texas Code of Criminal Procedure, Article 62.001, or a conviction for
burglary of a habitation, is permanently disqualifying subject to the
requirements of Texas Occupations Code, Chapter 53.
(g) A Class B misdemeanor conviction for an
offense listed in subsection (c) of this section is disqualifying for two (2)
years from the date of conviction.
(h) Any unlisted offense that is
substantially similar in elements to an offense listed in subsection (c) of
this section is disqualifying in the same manner as the corresponding listed
offense.
(i) A pending charge under
an indictment or information for an offense listed in subsection (c) of this
section is grounds for summary suspension.
(j) In determining the fitness to perform the
duties and discharge the responsibilities of the licensed occupation of a
person against whom disqualifying charges have been filed or who has been
convicted of a disqualifying offense, the department will consider:
(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) The date the person will be eligible;
and
(7) Any other evidence of the
person's fitness, including letters of recommendation.
(k) In addition to the documentation listed
in subsection (j) of this section, the applicant or licensee shall furnish
proof in the form required by the department that the person has:
(1) Maintained a record of steady
employment;
(2) Supported the
applicant's dependents;
(3)
Maintained a record of good conduct; and
(4) Paid all outstanding court costs,
supervision fees, fines and restitution ordered in any criminal case in which
the applicant has been charged or convicted.
(l) The failure to timely provide the
information listed in subsection (j) and subsection (k) of this section may
result in the proposed action being taken against the application or
license.
(m) The provisions of this
section are authorized by the Act, §1702.004(b), and are intended to
comply with the requirements of Texas Occupations Code, Chapter 53. All periods
of disqualification provided in this section are subject to an analysis under
subsection (j) of this section, and the requirements of Texas Occupations Code,
Chapter 53.
Notes
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