86R9733 BEE-D
By: Reynolds H.B. No. 2232
A BILL TO BE ENTITLED
AN ACT
relating to the consequences of a criminal conviction on a person's
eligibility for an occupational license.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 53.001, Occupations Code, is amended to
read as follows:
Sec. 53.001. [APPLICABILITY OF CERTAIN] DEFINITIONS.
Except as otherwise provided by this chapter, in this chapter:
(1) "License" means a license, certificate,
registration, permit, or other authorization that:
(A) is issued by a licensing authority; and
(B) a person must obtain to practice or engage in
a particular business, occupation, or profession.
(2) "Licensing authority" means a department,
commission, board, office, or other agency of this state or a
political subdivision of this state that issues a license. [The
definitions provided by Chapter 2001, Government Code, apply to
this chapter.]
SECTION 2. Subchapter A, Chapter 53, Occupations Code, is
amended by adding Sections 53.003, 53.004, 53.005, 53.006, 53.007,
53.008, and 53.009 to read as follows:
Sec. 53.003. USE OF CERTAIN CRIMINAL HISTORY RECORD
INFORMATION. Notwithstanding any other law, this state, an agent
of this state, or a political subdivision of this state may not use,
distribute, or disseminate, in connection with an application for a
license, criminal history record information regarding:
(1) an offense that did not result in a conviction or
for which the conviction was overturned on appeal;
(2) a conviction for which the applicant received an
order of nondisclosure or an expunction or was pardoned;
(3) a conviction for a misdemeanor punishable by a
fine only;
(4) a conviction for a misdemeanor, other than a
misdemeanor described by Subdivision (3), that was committed less
than three years before the date of the application, excluding any
term of incarceration for the misdemeanor;
(5) a conviction for a felony that was committed less
than five years before the date of the application, excluding any
term of incarceration for the felony;
(6) placement of the applicant on deferred
adjudication community supervision for an offense;
(7) participation by the applicant in a pretrial
diversion program; or
(8) an adjudication of delinquent conduct.
Sec. 53.004. CLASSIFICATION OF OFFENSE COMMITTED OUTSIDE
THIS STATE. An offense committed outside this state shall be
classified in the same manner as an offense committed in this state
based on the maximum penalty that may be imposed for the offense in
the location where the offense is committed.
Sec. 53.005. CRIMINAL HISTORY ON LICENSE APPLICATION.
Notwithstanding any other law, a license application form may not
include a requirement that an applicant disclose the applicant's
criminal history record information.
Sec. 53.006. CONSIDERATION OF CRIMINAL HISTORY RECORD
INFORMATION FOR QUALIFIED APPLICANT. Notwithstanding any other
law, a licensing authority:
(1) may not inquire into or consider an applicant's
criminal history record information until after the authority has
determined that the applicant is otherwise qualified for the
license; and
(2) after making the determination under Subdivision
(1), may inquire into and consider only an offense committed by the
applicant that:
(A) directly relates to the licensed occupation;
and
(B) appears on the list of offenses prepared by
the authority under Section 53.022.
Sec. 53.007. CONSIDERATION OF MORAL CHARACTER. In
considering the moral character or other similar attribute of a
person in a decision to suspend, revoke, or deny a person's license
or deny a person the opportunity to be examined for the license, a
licensing authority may consider the person's criminal history
record information only in the manner prescribed by this chapter.
Sec. 53.008. RECORDS; STATISTICS. (a) A licensing
authority shall retain records related to the suspension,
revocation, or denial of a license or the denial of an opportunity
to take a licensing examination on the grounds that the person has
been convicted of an offense directly related to the licensed
occupation until at least the third anniversary of the date of the
suspension, revocation, or denial.
(b) A licensing authority shall:
(1) maintain a record of the number of:
(A) applicants for each license issued by the
authority;
(B) applicants for each license issued by the
authority for which the authority requests criminal history record
information; and
(C) applicants for each license issued by the
authority who have been convicted of an offense directly related to
the licensed occupation, including:
(i) the number of applicants who received a
notice of intent under Section 53.0501;
(ii) the number of applicants who provided
evidence of mitigation or rehabilitation as described by Section
53.0221; and
(iii) the number of applicants who appealed
a denial under Section 53.052;
(2) maintain a record of the final disposition and
demographic information of each applicant described by
Subdivisions (1)(C)(i), (ii), and (iii); and
(3) make the records maintained under this subsection
available to the public on the authority's Internet website in a
form that maintains the confidentiality of applicants.
Sec. 53.009. CONFLICT WITH OTHER LAW. This chapter
prevails to the extent of a conflict between this chapter and any
other law.
SECTION 3. Sections 53.021(a) and (a-1), Occupations Code,
are amended to read as follows:
(a) A licensing authority may suspend or revoke a license [,
disqualify a person from receiving a license,] or deny to a person a
license or the opportunity to take a licensing examination on the
grounds that the person has been convicted of an offense only if the
offense:
(1) [an offense that] directly relates to the [duties
and responsibilities of the] licensed occupation; and
(2) appears on the list of offenses prepared by the
authority under Section 53.022 [an offense that does not directly
relate to the duties and responsibilities of the licensed
occupation and that was committed less than five years before the
date the person applies for the license;
[(3) an offense listed in Article 42A.054, Code of
Criminal Procedure; or
[(4) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure].
(a-1) Subsection (a) does not apply to a person who submits
evidence to the licensing authority under Section 53.0221 of
sufficient mitigation or rehabilitation and present fitness to
perform the duties of the occupation [has been convicted only of an
offense punishable as a Class C misdemeanor unless:
[(1) the person is an applicant for or the holder of a
license that authorizes the person to possess a firearm; and
[(2) the offense for which the person was convicted is
a misdemeanor crime of domestic violence as that term is defined by
18 U.S.C. Section 921].
SECTION 4. Section 53.022, Occupations Code, is amended to
read as follows:
Sec. 53.022. LICENSING AUTHORITY DETERMINATION OF [FACTORS
IN DETERMINING] WHETHER CONVICTION RELATES TO OCCUPATION. (a) A
licensing authority shall prepare and make available to the public
a list of offenses:
(1) that directly relate to each occupation licensed
by the authority; and
(2) on conviction of which the licensing authority
may, subject to Section 53.003, take an action authorized by
Section 53.021(a).
(b) In determining whether an offense [a criminal
conviction] directly relates to an occupation, the licensing
authority shall consider:
(1) the policy of this state, as expressed in this
chapter, to encourage the licensure of individuals with criminal
and arrest histories [nature and seriousness of the crime];
(2) whether the elements of the offense are directly
related to the specific duties and responsibilities of
[relationship of the crime to the purposes for requiring a license
to engage in] the occupation;
(3) the extent to which the occupation offers the [a
license might offer an] opportunity for the same or a similar
offense to occur [to engage in further criminal activity of the same
type as that in which the person previously had been involved];
[and]
(4) the relationship of the offense [crime] to the
state's purposes for regulating the occupation; and
(5) the length of time since the date the offense was
committed [ability, capacity, or fitness required to perform the
duties and discharge the responsibilities of the licensed
occupation].
SECTION 5. Subchapter B, Chapter 53, Occupations Code, is
amended by adding Section 53.0221 to read as follows:
Sec. 53.0221. EVIDENCE OF MITIGATION OR REHABILITATION;
EVIDENCE OF PRESENT FITNESS. A licensing authority may not suspend
or revoke a license or deny to a person a license or the opportunity
to take a licensing examination on the grounds that the person has
been convicted of an offense that directly relates to the licensed
occupation if the person submits to the licensing authority:
(1) proof that:
(A) at least one year has elapsed since the date
of the person's release from any correctional institution; and
(B) the person is in compliance with any terms of
community supervision, parole, or mandatory supervision to which
the person is subject; or
(2) evidence of sufficient mitigation or
rehabilitation and present fitness of the person to perform the
duties of the occupation, including:
(A) circumstances related to the offense,
including mitigating circumstances or social conditions
surrounding the commission of the offense;
(B) the age of the person at the time the offense
was committed;
(C) the length of time since the date the offense
was committed;
(D) the person's work history, particularly any
training or work experience related to the relevant occupation; or
(E) letters of reference written by persons who
have been in contact with the person since the date of the person's
release from any correctional institution.
SECTION 6. Section 53.025, Occupations Code, is amended to
read as follows:
Sec. 53.025. PUBLICATION OF LIST AND GUIDELINES. (a) Each
licensing authority shall issue guidelines relating to the practice
of the licensing authority under this chapter. The guidelines must
state the reasons a particular offense [crime] is on the list
prepared by the authority under Section 53.022 [considered to
relate to a particular license] and any other criterion that
affects the decisions of the licensing authority.
(b) A state licensing authority [that issues guidelines
under this section] shall file the guidelines and list of offenses
with the secretary of state for publication in the Texas Register.
(c) A local or county licensing authority [that issues
guidelines under this section] shall post the authority's
guidelines and list of offenses at the courthouse for the county in
which the licensing authority is located or publish the guidelines
and list of offenses in a newspaper having countywide circulation
in that county.
(d) Amendments to the guidelines or list of offenses, if
any, shall be issued annually.
SECTION 7. The heading to Subchapter C, Chapter 53,
Occupations Code, is amended to read as follows:
SUBCHAPTER C. NOTICE AND REVIEW OF SUSPENSION, REVOCATION, OR
DENIAL; REAPPLICATION [OF LICENSE]
SECTION 8. Subchapter C, Chapter 53, Occupations Code, is
amended by adding Sections 53.0501 and 53.0502 to read as follows:
Sec. 53.0501. NOTICE OF INTENT TO SUSPEND, REVOKE, OR DENY.
(a) Notwithstanding any other law, a licensing authority may not
suspend or revoke a person's license or deny a person a license or
the opportunity to be examined for a license because of the person's
prior conviction of an offense unless the licensing authority:
(1) gives the person written notice of the agency's
intent to suspend or revoke the license or deny the person a license
or the opportunity to be examined for a license because of the
person's criminal history; and
(2) allows the person not less than 30 days to:
(A) challenge the accuracy of the person's
criminal history record information; and
(B) submit evidence of sufficient mitigation or
rehabilitation and present fitness to perform the duties of the
occupation as described by Section 53.0221.
(b) The notice required under Subsection (a)(1) must:
(1) identify the criminal conviction that is the basis
for the potential suspension, revocation, or denial;
(2) include a copy of the person's criminal history
record information; and
(3) include examples of evidence of mitigation or
rehabilitation that the applicant may voluntarily submit under
Section 53.0221.
Sec. 53.0502. INDIVIDUAL ASSESSMENT. A licensing authority
that receives evidence from a person under Section 53.0501(a)(2)(B)
may not suspend or revoke the person's license or deny the person a
license or the opportunity to be examined for a license unless the
authority completes an individual assessment of the evidence
submitted.
SECTION 9. Section 53.051, Occupations Code, is amended to
read as follows:
Sec. 53.051. NOTICE OF SUSPENSION, REVOCATION, OR DENIAL.
A licensing authority that suspends or revokes a license or denies a
person a license or the opportunity to be examined for a license
because of the person's prior conviction of an offense that is
directly related to the [a crime and the relationship of the crime
to the] license shall notify the person in writing of:
(1) the reason for the suspension, revocation, or
denial, including:
(A) any offense of which the person has been
convicted that directly relates to the licensed occupation; and
(B) the authority's rationale for determining
that the offense directly relates to the licensed occupation [or
disqualification];
(2) the review procedure provided by Section 53.052;
and
(3) the earliest date the person may:
(A) appeal the action of the licensing authority;
or
(B) reapply for the license or examination.
SECTION 10. Subchapter C, Chapter 53, Occupations Code, is
amended by adding Section 53.053 to read as follows:
Sec. 53.053. REAPPLICATION. Notwithstanding any other law,
a person whose license is suspended or revoked or who is denied a
license or the opportunity to be examined for a license by a
licensing authority may reapply for the license or opportunity to
be examined for the license on or after the second anniversary of
the date of the suspension, revocation, or denial.
SECTION 11. Section 142.002(b), Civil Practice and Remedies
Code, is amended to read as follows:
(b) This section does not preclude a cause of action for
negligent hiring or the failure of an employer, general contractor,
premises owner, or other third party to provide adequate
supervision of an employee, if:
(1) the employer, general contractor, premises owner,
or other third party knew or should have known of the conviction;
and
(2) the employee was convicted of:
(A) an offense that was committed while
performing duties substantially similar to those reasonably
expected to be performed in the employment, or under conditions
substantially similar to those reasonably expected to be
encountered in the employment, taking into consideration the
factors listed in Section 53.022(b) [Sections 53.022 and
53.023(a)], Occupations Code, without regard to whether the
occupation requires a license;
(B) an offense listed in Article 42A.054, Code of
Criminal Procedure; or
(C) a sexually violent offense, as defined by
Article 62.001, Code of Criminal Procedure.
SECTION 12. Section 19.0042, Education Code, is amended to
read as follows:
Sec. 19.0042. INFORMATION TO BE PROVIDED BY DISTRICT BEFORE
VOCATIONAL TRAINING PROGRAM ENROLLMENT. Before a person described
by Section 19.005 enrolls in a district vocational training
program, the district must inform the person in writing of:
(1) any rule or policy of a state agency that would
impose a restriction or prohibition on the person in obtaining a
certificate or license in connection with the vocational training
program;
(2) the total number of district students released
during the preceding 10 years who have completed a district
vocational training program that allows for an opportunity to apply
for a certificate or license from a state agency and, of those
students:
(A) the number who have applied for a certificate
or license from a state agency;
(B) the number who have been issued a certificate
or license by a state agency; and
(C) the number who have been denied a certificate
or license by a state agency; and
(3) the procedures for:
(A) requesting a criminal history evaluation
letter under Section 53.102, Occupations Code;
(B) providing evidence of sufficient mitigation
or rehabilitation and present fitness to perform the duties and
discharge the responsibilities of a licensed occupation for
purposes of Section 53.0221 [53.023], Occupations Code; and
(C) appealing a state agency's denial of a
certificate or license, including deadlines and due process
requirements:
(i) to the State Office of Administrative
Hearings under Subchapter C, Chapter 2001, Government Code; and
(ii) through any other available avenue.
SECTION 13. Section 411.122(c), Government Code, is amended
to read as follows:
(c) This section does not apply to an agency that is[:
[(1)] specifically authorized by this subchapter or
Subchapter E-1 to obtain criminal history record information from
the department[; or
[(2) covered by Section 53.002, Occupations Code, to
the extent provided by that section].
SECTION 14. Section 51.356(b), Occupations Code, is amended
to read as follows:
(b) In making a determination under Subsection (a)(2), the
commission shall consider the factors set forth in Section
53.022(b) [Sections 53.022 and 53.023] and the guidelines issued by
the department under Section 53.025.
SECTION 15. The following provisions of the Occupations
Code are repealed:
(1) Section 53.002;
(2) Sections 53.021(b), (c), (d), and (e);
(3) Section 53.0211; and
(4) Section 53.023.
SECTION 16. Not later than March 1, 2020, a licensing
authority shall develop and make available to the public the list of
offenses required under Section 53.022, Occupations Code, as
amended by this Act.
SECTION 17. The changes in law made by this Act to Chapter
53, Occupations Code, apply only to an application for a license or
to take a licensing examination that is filed, or a proceeding to
revoke or suspend a license or authorization that is commenced, on
or after the effective date of this Act. An application that is
filed, or a proceeding that is commenced, before the effective date
of this Act is governed by the law in effect on the date the
application was filed or the proceeding commenced, and the former
law is continued in effect for that purpose.
SECTION 18. This Act takes effect September 1, 2019.