Texas 2009 - 81st Regular

Texas House Bill HB70 Compare Versions

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1	1	81R234 BEF-F
2	2	By: Guillen H.B. No. 70
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the issuance of an occupational license to certain
8	8	applicants with criminal convictions.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 53.002, Occupations Code, is amended to
11	11	read as follows:
12	12	Sec. 53.002. APPLICABILITY OF CHAPTER. This chapter does
13	13	not apply to:
14	14	(1) the Supreme Court of Texas, a person licensed
15	15	under the court's authority on behalf of the judicial department of
16	16	government, or an applicant for a license issued under the court's
17	17	authority on behalf of the judicial department of government;
18	18	(2) a peace officer or an applicant for a license as a
19	19	peace officer described by Article 2.12, Code of Criminal
20	20	Procedure, or to a reserve law enforcement officer, a county
21	21	jailer, or a public security officer licensed or applying for a
22	22	license under Chapter 1701; or
23	23	(3) a person who:
24	24	(A) is licensed by the Texas Medical [State]
25	25	Board [of Medical Examiners], the Texas State Board of Pharmacy,
26	26	the State Board of Dental Examiners, the Texas State Board of
27	27	Examiners of Psychologists, the Texas Board of Nursing, the Texas
28	28	Optometry Board, or the State Board of Veterinary Medical
29	29	Examiners; and
30	30	(B) has been convicted of a felony under Chapter
31	31	481 or 483 or Section 485.033, Health and Safety Code.
32	32	SECTION 2. Section 53.021(a), Occupations Code, is amended
33	33	to read as follows:
34	34	(a) A licensing authority may suspend or revoke a license,
35	35	disqualify a person from receiving a license, or deny to a person
36	36	the opportunity to take a licensing examination on the grounds that
37	37	the person has been convicted of:
38	38	(1) a felony or misdemeanor that directly relates to
39	39	the duties and responsibilities of the licensed occupation that was
40	40	committed less than five years before the date the person applies
41	41	for the license;
42	42	(2) an offense listed in Section 3g, Article 42.12,
43	43	Code of Criminal Procedure;
44	44	(3) a sexually violent offense, as defined by Article
45	45	62.001, Code of Criminal Procedure; or
46	46	(4) an offense for which the licensing authority finds
47	47	that the person's status as a license holder enabled the person to
48	48	commit the offense, if the person currently holds or is applying for
49	49	the same type of license.
50	50	SECTION 3. Chapter 53, Occupations Code, is amended by
51	51	adding Subchapter D to read as follows:
52	52	SUBCHAPTER D. PROVISIONAL LICENSING OF CERTAIN APPLICANTS WITH
53	53	PRIOR CRIMINAL CONVICTIONS
54	54	Sec. 53.101. ISSUANCE OF LICENSE OR PROVISIONAL LICENSE.
55	55	(a) Notwithstanding any other law and if the applicant is otherwise
56	56	qualified for the license, a licensing authority:
57	57	(1) may issue to an applicant who has been convicted of
58	58	an offense described by Section 53.021(a):
59	59	(A) the license for which the applicant applied;
60	60	or
61	61	(B) a provisional license under this subchapter;
62	62	and
63	63	(2) shall issue to an applicant who has been convicted
64	64	of an offense other than an offense described by Section 53.021(a):
65	65	(A) the license for which the applicant applied;
66	66	or
67	67	(B) a provisional license under this subchapter.
68	68	(b) Notwithstanding Subsection (a)(1) and if the applicant
69	69	is otherwise qualified for the license, a licensing authority shall
70	70	issue to an applicant who has been convicted of only one offense and
71	71	the offense was a misdemeanor, was not committed in the scope of
72	72	employment in any job, and did not involve harm to a child or fraud:
73	73	(1) the license for which the applicant applied; or
74	74	(2) a provisional license under this subchapter.
75	75	Sec. 53.102. PROVISIONAL LICENSE TERM. A licensing
76	76	authority may issue a provisional license under this subchapter for
77	77	a term not to exceed:
78	78	(1) five years to an applicant who has been convicted
79	79	of a felony; or
80	80	(2) three years to an applicant who has been convicted
81	81	of a misdemeanor only.
82	82	Sec. 53.103. LIMITATIONS ON PRACTICE. A licensing authority
83	83	may limit the practice by a holder of a provisional license under
84	84	this subchapter in a manner determined necessary by the licensing
85	85	authority to protect the public. The limitations may continue in
86	86	effect after the date the person is issued a license under Section
87	87	53.104.
88	88	Sec. 53.104. ISSUANCE OF LICENSE ON EXPIRATION OF
89	89	PROVISIONAL LICENSE. The licensing authority shall issue the
90	90	license for which the applicant originally applied to a provisional
91	91	license holder on the expiration of the provisional license term if
92	92	the provisional license was not revoked under Section 53.105 and
93	93	the applicant is otherwise qualified for the license.
94	94	Sec. 53.105. REVOCATION OF PROVISIONAL LICENSE. The
95	95	licensing authority:
96	96	(1) shall revoke a provisional license if the
97	97	provisional license holder:
98	98	(A) commits a new offense; or
99	99	(B) commits an act or omission that causes the
100	100	person's community supervision, mandatory supervision, or parole
101	101	to be revoked, if applicable; and
102	102	(2) may revoke a provisional license if the
103	103	provisional license holder:
104	104	(A) violates a law or rule governing the practice
105	105	of the occupation for which the provisional license is issued; or
106	106	(B) violates a condition of the person's
107	107	community supervision, mandatory supervision, or parole that does
108	108	not result in the revocation of the person's community supervision,
109	109	mandatory supervision, or parole, if applicable.
110	110	Sec. 53.106. EFFECT OF REVOCATION OF PROVISIONAL LICENSE.
111	111	If the licensing authority revokes a provisional license under
112	112	Section 53.105, the provisional license holder is disqualified from
113	113	receiving the license for which the person originally applied for a
114	114	period prescribed by the licensing authority. If the licensing
115	115	authority does not prescribe a period of disqualification, the
116	116	provisional license holder is permanently disqualified from
117	117	receiving the license for which the person originally applied.
118	118	Sec. 53.107. APPEAL OF REVOCATION OF PROVISIONAL LICENSE.
119	119	A person whose provisional license is revoked under Section 53.105
120	120	may appeal the revocation only to the governing body of the
121	121	licensing authority under procedures provided by the law governing
122	122	the appeal of license revocations by the licensing authority.
123	123	Sec. 53.108. COORDINATION WITH PROBATION OR PAROLE
124	124	DEPARTMENT. (a) An applicant who is on community supervision,
125	125	mandatory supervision, or parole and who is issued a provisional
126	126	license under this subchapter shall provide to the licensing
127	127	authority the name and contact information of the probation or
128	128	parole department to which the person reports.
129	129	(b) The licensing authority shall notify the probation or
130	130	parole department that a provisional license has been issued.
131	131	(c) The probation or parole department shall notify the
132	132	licensing authority if the person's community supervision,
133	133	mandatory supervision, or parole supervision is revoked during the
134	134	term of the provisional license.
135	135	SECTION 4. Chapter 53, Occupations Code, is amended by
136	136	adding Subchapter E to read as follows:
137	137	SUBCHAPTER E. LIMITATION ON LIABILITY FOR HIRING
138	138	CERTAIN LICENSE HOLDERS
139	139	Sec. 53.151. DEFINITIONS. In this subchapter:
140	140	(1) "Employee" means a person other than an
141	141	independent contractor who, for compensation, performs services
142	142	for an employer under a written or oral contract for hire, whether
143	143	express or implied.
144	144	(2) "Independent contractor" has the meaning assigned
145	145	by Section 91.001, Labor Code.
146	146	(3) "License holder" means an employee or independent
147	147	contractor who holds a license, including a provisional license.
148	148	Sec. 53.152. LIMITATION ON LIABILITY FOR HIRING LICENSE
149	149	HOLDER CONVICTED OF OFFENSE. (a) A cause of action may not be
150	150	brought against an employer, general contractor, premises owner, or
151	151	other third party solely for hiring a person who holds a license
152	152	issued by a licensing authority to which this chapter applies who
153	153	has been convicted of an offense.
154	154	(b) In a negligent hiring action against an employer,
155	155	general contractor, premises owner, or other third party for the
156	156	acts of a license holder that is based on a theory of liability
157	157	other than that described by Subsection (a), the fact that the
158	158	license holder was convicted of an offense before the license
159	159	holder's employment or contractual obligation with the employer,
160	160	general contractor, premises owner, or other third party, as
161	161	applicable, may not be introduced into evidence.
162	162	(c) This section does not preclude any existing cause of
163	163	action for failure of an employer or other person to provide
164	164	adequate supervision of a license holder, except that the fact that
165	165	the license holder has been convicted of a criminal offense may be
166	166	introduced into evidence in the suit only if:
167	167	(1) the employer knew of the conviction or was grossly
168	168	negligent in not knowing of the conviction; and
169	169	(2) the conviction was directly related to the nature
170	170	of the license holder's work and the conduct that gave rise to the
171	171	alleged injury that is the basis of the suit.
172	172	(d) The protections provided to an employer, general
173	173	contractor, premises owner, or third party under this section do
174	174	not apply in a suit concerning the misuse of funds or property of a
175	175	person other than the employer, general contractor, premises owner,
176	176	or third party, by a license holder, if, on the date the license
177	177	holder was hired, the license holder had been convicted of a crime
178	178	that includes fraud or the misuse of funds or property as an element
179	179	of the offense, and it was foreseeable that the position for which
180	180	the license holder was hired would involve discharging a fiduciary
181	181	responsibility in the management of funds or property.
182	182	(e) This section does not create a cause of action or expand
183	183	any existing cause of action.
184	184	SECTION 5. Subchapter E, Occupations Code, as added by this
185	185	Act, applies only to a cause of action that accrues on or after the
186	186	effective date of this Act. A cause of action that accrues before
187	187	the effective date of this Act is governed by the law in effect
188	188	immediately before that date, and the former law is continued in
189	189	effect for that purpose.
190	190	SECTION 6. The changes in law made by this Act apply only to
191	191	an application for a license filed with a licensing authority to
192	192	which Chapter 53, Occupations Code, applies on or after the
193	193	effective date of this Act. An application filed before that date
194	194	is governed by the law in effect on the date the application was
195	195	filed, and the former law is continued in effect for that purpose.
196	196	SECTION 7. This Act takes effect immediately if it receives
197	197	a vote of two-thirds of all the members elected to each house, as
198	198	provided by Section 39, Article III, Texas Constitution. If this
199	199	Act does not receive the vote necessary for immediate effect, this
200	200	Act takes effect September 1, 2009.