Texas 2019 - 86th Regular

Texas House Bill HB2232 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R9733 BEE-D
2	2	By: Reynolds H.B. No. 2232
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the consequences of a criminal conviction on a person's
8	8	eligibility for an occupational license.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 53.001, Occupations Code, is amended to
11	11	read as follows:
12	12	Sec. 53.001. [APPLICABILITY OF CERTAIN] DEFINITIONS.
13	13	Except as otherwise provided by this chapter, in this chapter:
14	14	(1) "License" means a license, certificate,
15	15	registration, permit, or other authorization that:
16	16	(A) is issued by a licensing authority; and
17	17	(B) a person must obtain to practice or engage in
18	18	a particular business, occupation, or profession.
19	19	(2) "Licensing authority" means a department,
20	20	commission, board, office, or other agency of this state or a
21	21	political subdivision of this state that issues a license. [The
22	22	definitions provided by Chapter 2001, Government Code, apply to
23	23	this chapter.]
24	24	SECTION 2. Subchapter A, Chapter 53, Occupations Code, is
25	25	amended by adding Sections 53.003, 53.004, 53.005, 53.006, 53.007,
26	26	53.008, and 53.009 to read as follows:
27	27	Sec. 53.003. USE OF CERTAIN CRIMINAL HISTORY RECORD
28	28	INFORMATION. Notwithstanding any other law, this state, an agent
29	29	of this state, or a political subdivision of this state may not use,
30	30	distribute, or disseminate, in connection with an application for a
31	31	license, criminal history record information regarding:
32	32	(1) an offense that did not result in a conviction or
33	33	for which the conviction was overturned on appeal;
34	34	(2) a conviction for which the applicant received an
35	35	order of nondisclosure or an expunction or was pardoned;
36	36	(3) a conviction for a misdemeanor punishable by a
37	37	fine only;
38	38	(4) a conviction for a misdemeanor, other than a
39	39	misdemeanor described by Subdivision (3), that was committed less
40	40	than three years before the date of the application, excluding any
41	41	term of incarceration for the misdemeanor;
42	42	(5) a conviction for a felony that was committed less
43	43	than five years before the date of the application, excluding any
44	44	term of incarceration for the felony;
45	45	(6) placement of the applicant on deferred
46	46	adjudication community supervision for an offense;
47	47	(7) participation by the applicant in a pretrial
48	48	diversion program; or
49	49	(8) an adjudication of delinquent conduct.
50	50	Sec. 53.004. CLASSIFICATION OF OFFENSE COMMITTED OUTSIDE
51	51	THIS STATE. An offense committed outside this state shall be
52	52	classified in the same manner as an offense committed in this state
53	53	based on the maximum penalty that may be imposed for the offense in
54	54	the location where the offense is committed.
55	55	Sec. 53.005. CRIMINAL HISTORY ON LICENSE APPLICATION.
56	56	Notwithstanding any other law, a license application form may not
57	57	include a requirement that an applicant disclose the applicant's
58	58	criminal history record information.
59	59	Sec. 53.006. CONSIDERATION OF CRIMINAL HISTORY RECORD
60	60	INFORMATION FOR QUALIFIED APPLICANT. Notwithstanding any other
61	61	law, a licensing authority:
62	62	(1) may not inquire into or consider an applicant's
63	63	criminal history record information until after the authority has
64	64	determined that the applicant is otherwise qualified for the
65	65	license; and
66	66	(2) after making the determination under Subdivision
67	67	(1), may inquire into and consider only an offense committed by the
68	68	applicant that:
69	69	(A) directly relates to the licensed occupation;
70	70	and
71	71	(B) appears on the list of offenses prepared by
72	72	the authority under Section 53.022.
73	73	Sec. 53.007. CONSIDERATION OF MORAL CHARACTER. In
74	74	considering the moral character or other similar attribute of a
75	75	person in a decision to suspend, revoke, or deny a person's license
76	76	or deny a person the opportunity to be examined for the license, a
77	77	licensing authority may consider the person's criminal history
78	78	record information only in the manner prescribed by this chapter.
79	79	Sec. 53.008. RECORDS; STATISTICS. (a) A licensing
80	80	authority shall retain records related to the suspension,
81	81	revocation, or denial of a license or the denial of an opportunity
82	82	to take a licensing examination on the grounds that the person has
83	83	been convicted of an offense directly related to the licensed
84	84	occupation until at least the third anniversary of the date of the
85	85	suspension, revocation, or denial.
86	86	(b) A licensing authority shall:
87	87	(1) maintain a record of the number of:
88	88	(A) applicants for each license issued by the
89	89	authority;
90	90	(B) applicants for each license issued by the
91	91	authority for which the authority requests criminal history record
92	92	information; and
93	93	(C) applicants for each license issued by the
94	94	authority who have been convicted of an offense directly related to
95	95	the licensed occupation, including:
96	96	(i) the number of applicants who received a
97	97	notice of intent under Section 53.0501;
98	98	(ii) the number of applicants who provided
99	99	evidence of mitigation or rehabilitation as described by Section
100	100	53.0221; and
101	101	(iii) the number of applicants who appealed
102	102	a denial under Section 53.052;
103	103	(2) maintain a record of the final disposition and
104	104	demographic information of each applicant described by
105	105	Subdivisions (1)(C)(i), (ii), and (iii); and
106	106	(3) make the records maintained under this subsection
107	107	available to the public on the authority's Internet website in a
108	108	form that maintains the confidentiality of applicants.
109	109	Sec. 53.009. CONFLICT WITH OTHER LAW. This chapter
110	110	prevails to the extent of a conflict between this chapter and any
111	111	other law.
112	112	SECTION 3. Sections 53.021(a) and (a-1), Occupations Code,
113	113	are amended to read as follows:
114	114	(a) A licensing authority may suspend or revoke a license [,
115	115	disqualify a person from receiving a license,] or deny to a person a
116	116	license or the opportunity to take a licensing examination on the
117	117	grounds that the person has been convicted of an offense only if the
118	118	offense:
119	119	(1) [an offense that] directly relates to the [duties
120	120	and responsibilities of the] licensed occupation; and
121	121	(2) appears on the list of offenses prepared by the
122	122	authority under Section 53.022 [an offense that does not directly
123	123	relate to the duties and responsibilities of the licensed
124	124	occupation and that was committed less than five years before the
125	125	date the person applies for the license;
126	126	[(3) an offense listed in Article 42A.054, Code of
127	127	Criminal Procedure; or
128	128	[(4) a sexually violent offense, as defined by Article
129	129	62.001, Code of Criminal Procedure].
130	130	(a-1) Subsection (a) does not apply to a person who submits
131	131	evidence to the licensing authority under Section 53.0221 of
132	132	sufficient mitigation or rehabilitation and present fitness to
133	133	perform the duties of the occupation [has been convicted only of an
134	134	offense punishable as a Class C misdemeanor unless:
135	135	[(1) the person is an applicant for or the holder of a
136	136	license that authorizes the person to possess a firearm; and
137	137	[(2) the offense for which the person was convicted is
138	138	a misdemeanor crime of domestic violence as that term is defined by
139	139	18 U.S.C. Section 921].
140	140	SECTION 4. Section 53.022, Occupations Code, is amended to
141	141	read as follows:
142	142	Sec. 53.022. LICENSING AUTHORITY DETERMINATION OF [FACTORS
143	143	IN DETERMINING] WHETHER CONVICTION RELATES TO OCCUPATION. (a) A
144	144	licensing authority shall prepare and make available to the public
145	145	a list of offenses:
146	146	(1) that directly relate to each occupation licensed
147	147	by the authority; and
148	148	(2) on conviction of which the licensing authority
149	149	may, subject to Section 53.003, take an action authorized by
150	150	Section 53.021(a).
151	151	(b) In determining whether an offense [a criminal
152	152	conviction] directly relates to an occupation, the licensing
153	153	authority shall consider:
154	154	(1) the policy of this state, as expressed in this
155	155	chapter, to encourage the licensure of individuals with criminal
156	156	and arrest histories [nature and seriousness of the crime];
157	157	(2) whether the elements of the offense are directly
158	158	related to the specific duties and responsibilities of
159	159	[relationship of the crime to the purposes for requiring a license
160	160	to engage in] the occupation;
161	161	(3) the extent to which the occupation offers the [a
162	162	license might offer an] opportunity for the same or a similar
163	163	offense to occur [to engage in further criminal activity of the same
164	164	type as that in which the person previously had been involved];
165	165	[and]
166	166	(4) the relationship of the offense [crime] to the
167	167	state's purposes for regulating the occupation; and
168	168	(5) the length of time since the date the offense was
169	169	committed [ability, capacity, or fitness required to perform the
170	170	duties and discharge the responsibilities of the licensed
171	171	occupation].
172	172	SECTION 5. Subchapter B, Chapter 53, Occupations Code, is
173	173	amended by adding Section 53.0221 to read as follows:
174	174	Sec. 53.0221. EVIDENCE OF MITIGATION OR REHABILITATION;
175	175	EVIDENCE OF PRESENT FITNESS. A licensing authority may not suspend
176	176	or revoke a license or deny to a person a license or the opportunity
177	177	to take a licensing examination on the grounds that the person has
178	178	been convicted of an offense that directly relates to the licensed
179	179	occupation if the person submits to the licensing authority:
180	180	(1) proof that:
181	181	(A) at least one year has elapsed since the date
182	182	of the person's release from any correctional institution; and
183	183	(B) the person is in compliance with any terms of
184	184	community supervision, parole, or mandatory supervision to which
185	185	the person is subject; or
186	186	(2) evidence of sufficient mitigation or
187	187	rehabilitation and present fitness of the person to perform the
188	188	duties of the occupation, including:
189	189	(A) circumstances related to the offense,
190	190	including mitigating circumstances or social conditions
191	191	surrounding the commission of the offense;
192	192	(B) the age of the person at the time the offense
193	193	was committed;
194	194	(C) the length of time since the date the offense
195	195	was committed;
196	196	(D) the person's work history, particularly any
197	197	training or work experience related to the relevant occupation; or
198	198	(E) letters of reference written by persons who
199	199	have been in contact with the person since the date of the person's
200	200	release from any correctional institution.
201	201	SECTION 6. Section 53.025, Occupations Code, is amended to
202	202	read as follows:
203	203	Sec. 53.025. PUBLICATION OF LIST AND GUIDELINES. (a) Each
204	204	licensing authority shall issue guidelines relating to the practice
205	205	of the licensing authority under this chapter. The guidelines must
206	206	state the reasons a particular offense [crime] is on the list
207	207	prepared by the authority under Section 53.022 [considered to
208	208	relate to a particular license] and any other criterion that
209	209	affects the decisions of the licensing authority.
210	210	(b) A state licensing authority [that issues guidelines
211	211	under this section] shall file the guidelines and list of offenses
212	212	with the secretary of state for publication in the Texas Register.
213	213	(c) A local or county licensing authority [that issues
214	214	guidelines under this section] shall post the authority's
215	215	guidelines and list of offenses at the courthouse for the county in
216	216	which the licensing authority is located or publish the guidelines
217	217	and list of offenses in a newspaper having countywide circulation
218	218	in that county.
219	219	(d) Amendments to the guidelines or list of offenses, if
220	220	any, shall be issued annually.
221	221	SECTION 7. The heading to Subchapter C, Chapter 53,
222	222	Occupations Code, is amended to read as follows:
223	223	SUBCHAPTER C. NOTICE AND REVIEW OF SUSPENSION, REVOCATION, OR
224	224	DENIAL; REAPPLICATION [OF LICENSE]
225	225	SECTION 8. Subchapter C, Chapter 53, Occupations Code, is
226	226	amended by adding Sections 53.0501 and 53.0502 to read as follows:
227	227	Sec. 53.0501. NOTICE OF INTENT TO SUSPEND, REVOKE, OR DENY.
228	228	(a) Notwithstanding any other law, a licensing authority may not
229	229	suspend or revoke a person's license or deny a person a license or
230	230	the opportunity to be examined for a license because of the person's
231	231	prior conviction of an offense unless the licensing authority:
232	232	(1) gives the person written notice of the agency's
233	233	intent to suspend or revoke the license or deny the person a license
234	234	or the opportunity to be examined for a license because of the
235	235	person's criminal history; and
236	236	(2) allows the person not less than 30 days to:
237	237	(A) challenge the accuracy of the person's
238	238	criminal history record information; and
239	239	(B) submit evidence of sufficient mitigation or
240	240	rehabilitation and present fitness to perform the duties of the
241	241	occupation as described by Section 53.0221.
242	242	(b) The notice required under Subsection (a)(1) must:
243	243	(1) identify the criminal conviction that is the basis
244	244	for the potential suspension, revocation, or denial;
245	245	(2) include a copy of the person's criminal history
246	246	record information; and
247	247	(3) include examples of evidence of mitigation or
248	248	rehabilitation that the applicant may voluntarily submit under
249	249	Section 53.0221.
250	250	Sec. 53.0502. INDIVIDUAL ASSESSMENT. A licensing authority
251	251	that receives evidence from a person under Section 53.0501(a)(2)(B)
252	252	may not suspend or revoke the person's license or deny the person a
253	253	license or the opportunity to be examined for a license unless the
254	254	authority completes an individual assessment of the evidence
255	255	submitted.
256	256	SECTION 9. Section 53.051, Occupations Code, is amended to
257	257	read as follows:
258	258	Sec. 53.051. NOTICE OF SUSPENSION, REVOCATION, OR DENIAL.
259	259	A licensing authority that suspends or revokes a license or denies a
260	260	person a license or the opportunity to be examined for a license
261	261	because of the person's prior conviction of an offense that is
262	262	directly related to the [a crime and the relationship of the crime
263	263	to the] license shall notify the person in writing of:
264	264	(1) the reason for the suspension, revocation, or
265	265	denial, including:
266	266	(A) any offense of which the person has been
267	267	convicted that directly relates to the licensed occupation; and
268	268	(B) the authority's rationale for determining
269	269	that the offense directly relates to the licensed occupation [or
270	270	disqualification];
271	271	(2) the review procedure provided by Section 53.052;
272	272	and
273	273	(3) the earliest date the person may:
274	274	(A) appeal the action of the licensing authority;
275	275	or
276	276	(B) reapply for the license or examination.
277	277	SECTION 10. Subchapter C, Chapter 53, Occupations Code, is
278	278	amended by adding Section 53.053 to read as follows:
279	279	Sec. 53.053. REAPPLICATION. Notwithstanding any other law,
280	280	a person whose license is suspended or revoked or who is denied a
281	281	license or the opportunity to be examined for a license by a
282	282	licensing authority may reapply for the license or opportunity to
283	283	be examined for the license on or after the second anniversary of
284	284	the date of the suspension, revocation, or denial.
285	285	SECTION 11. Section 142.002(b), Civil Practice and Remedies
286	286	Code, is amended to read as follows:
287	287	(b) This section does not preclude a cause of action for
288	288	negligent hiring or the failure of an employer, general contractor,
289	289	premises owner, or other third party to provide adequate
290	290	supervision of an employee, if:
291	291	(1) the employer, general contractor, premises owner,
292	292	or other third party knew or should have known of the conviction;
293	293	and
294	294	(2) the employee was convicted of:
295	295	(A) an offense that was committed while
296	296	performing duties substantially similar to those reasonably
297	297	expected to be performed in the employment, or under conditions
298	298	substantially similar to those reasonably expected to be
299	299	encountered in the employment, taking into consideration the
300	300	factors listed in Section 53.022(b) [Sections 53.022 and
301	301	53.023(a)], Occupations Code, without regard to whether the
302	302	occupation requires a license;
303	303	(B) an offense listed in Article 42A.054, Code of
304	304	Criminal Procedure; or
305	305	(C) a sexually violent offense, as defined by
306	306	Article 62.001, Code of Criminal Procedure.
307	307	SECTION 12. Section 19.0042, Education Code, is amended to
308	308	read as follows:
309	309	Sec. 19.0042. INFORMATION TO BE PROVIDED BY DISTRICT BEFORE
310	310	VOCATIONAL TRAINING PROGRAM ENROLLMENT. Before a person described
311	311	by Section 19.005 enrolls in a district vocational training
312	312	program, the district must inform the person in writing of:
313	313	(1) any rule or policy of a state agency that would
314	314	impose a restriction or prohibition on the person in obtaining a
315	315	certificate or license in connection with the vocational training
316	316	program;
317	317	(2) the total number of district students released
318	318	during the preceding 10 years who have completed a district
319	319	vocational training program that allows for an opportunity to apply
320	320	for a certificate or license from a state agency and, of those
321	321	students:
322	322	(A) the number who have applied for a certificate
323	323	or license from a state agency;
324	324	(B) the number who have been issued a certificate
325	325	or license by a state agency; and
326	326	(C) the number who have been denied a certificate
327	327	or license by a state agency; and
328	328	(3) the procedures for:
329	329	(A) requesting a criminal history evaluation
330	330	letter under Section 53.102, Occupations Code;
331	331	(B) providing evidence of sufficient mitigation
332	332	or rehabilitation and present fitness to perform the duties and
333	333	discharge the responsibilities of a licensed occupation for
334	334	purposes of Section 53.0221 [53.023], Occupations Code; and
335	335	(C) appealing a state agency's denial of a
336	336	certificate or license, including deadlines and due process
337	337	requirements:
338	338	(i) to the State Office of Administrative
339	339	Hearings under Subchapter C, Chapter 2001, Government Code; and
340	340	(ii) through any other available avenue.
341	341	SECTION 13. Section 411.122(c), Government Code, is amended
342	342	to read as follows:
343	343	(c) This section does not apply to an agency that is[:
344	344	[(1)] specifically authorized by this subchapter or
345	345	Subchapter E-1 to obtain criminal history record information from
346	346	the department[; or
347	347	[(2) covered by Section 53.002, Occupations Code, to
348	348	the extent provided by that section].
349	349	SECTION 14. Section 51.356(b), Occupations Code, is amended
350	350	to read as follows:
351	351	(b) In making a determination under Subsection (a)(2), the
352	352	commission shall consider the factors set forth in Section
353	353	53.022(b) [Sections 53.022 and 53.023] and the guidelines issued by
354	354	the department under Section 53.025.
355	355	SECTION 15. The following provisions of the Occupations
356	356	Code are repealed:
357	357	(1) Section 53.002;
358	358	(2) Sections 53.021(b), (c), (d), and (e);
359	359	(3) Section 53.0211; and
360	360	(4) Section 53.023.
361	361	SECTION 16. Not later than March 1, 2020, a licensing
362	362	authority shall develop and make available to the public the list of
363	363	offenses required under Section 53.022, Occupations Code, as
364	364	amended by this Act.
365	365	SECTION 17. The changes in law made by this Act to Chapter
366	366	53, Occupations Code, apply only to an application for a license or
367	367	to take a licensing examination that is filed, or a proceeding to
368	368	revoke or suspend a license or authorization that is commenced, on
369	369	or after the effective date of this Act. An application that is
370	370	filed, or a proceeding that is commenced, before the effective date
371	371	of this Act is governed by the law in effect on the date the
372	372	application was filed or the proceeding commenced, and the former
373	373	law is continued in effect for that purpose.
374	374	SECTION 18. This Act takes effect September 1, 2019.