State Agencies May Not Consider an Arrest When Denying an Occupational License

This is the first part of a series in which we review changes to Texas agencies’ authority to punish occupational licensees based on criminal background. Effective September 1, 2019, several laws now improve the chances of Texans to obtain professional licenses despite their criminal history.

In Senate Bill Number 1217, the Texas Legislature made it clear that a licensing agency may not deny a license based on an arrest if the arrest did not lead to a deferred adjudication or conviction:

Sec. 53.0231. LIMITATION REGARDING CONSIDERATION OF CERTAIN ARRESTS

For purposes of determining a person’s fitness to perform the duties and discharge the responsibilities of the licensed occupation, a licensing authority may not consider an arrest that did not result in the person’s conviction or placement on deferred adjudication community supervision.

In our experience, most agencies behaved reasonably and did not rely upon arrests alone in their review of license applications and renewals. However, some agencies did rely upon arrests alone, and the new law will protect licensees and applicants from losing job opportunities when they have never pled guilty or nolo contendere to a crime or been convicted.

Although the new law states that an agency may not deny or revoke a license based only on an arrest, your agency may still require you to report the arrest to the agency. Failure to report an arrest can create a separate basis for an action against your license because failure to report can be dishonest. Some agencies never require an arrest to be reported, others require a report upon the next license renewal, while others require a report within 30 days of the arrest.

If you are arrested, be sure that you make any necessary reports. If you need any assistance determining what requirements, please contact us.

 

Sunset Commission Proposal that DPS be Directed to Work with TDLR to Develop Regulatory Processes and Rules.

This is the ninth part in an ongoing series reviewing proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). As we discussed previously, DPS is being reviewed by the Texas Sunset Advisory Commission, which has prepared its report for the Texas Legislature in the 2019 legislative session.

In this post, we look at the proposal that DPS be directed to work with TDLR to develop regulatory processes and rules. As addressed elsewhere in this series, the Sunset Commission believes DPS “lacks a balanced approach to overseeing the regulation of professions, industries, and activities under its jurisdiction” due to its criminalistic approach to regulating licenses. Conversely, the Sunset Commission states that DPS “would benefit from using TDLR’s expertise in refocusing the department’s rules, procedures, and processes used by the regulatory services division.”

In our experience, TDLR’s staff has the ability to be flexible with regards to reviewing rule violations and criminal background, and we agree that a similar approach would be helpful for both DPS and DPS’s licensees. We will follow the legislative session closely to see how this proposed change is received by the Legislature and what changes are made. If you would like to read about the Sunset process, you can do so at the Sunset website.

Sunset Commission Proposal that DPS be Required to Establish a Process to Informally Resolve Complaints

This is the eighth part in an ongoing series reviewing proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). As we discussed previously, DPS is being reviewed by the Texas Sunset Advisory Commission, which has prepared its report for the Texas Legislature in the 2019 legislative session.

In this post, we look at the proposal that DPS be required to establish a process to informally resolve complaints. DPS currently has authority to informally settle cases in the metal recycling entities program and in some private security program cases. However, this means that Regulatory Services Division cases and many private security program cases cannot be settled informally. As the Sunset Commission notes, “[f]ormal hearings often require significant time and expense for both the agency and licensee, but other, informal means of resolving cases can reduce costs and still achieve a fair outcome that protects the public.”

An increase in settlement authority would help many licensees (and the agency) resolve their cases with fewer risks and less expense. It is unclear from the Sunset Commission’s recommendation if any such informal processes would be available to applicants with a criminal background. In our experience, DPS has previously denied having informal resolution authority with regards to such applicants and routinely takes such cases to formal hearings. We would recommend this informal settlement authority be extended to such cases to reduce both monetary and time costs.

We will follow the legislative session closely to see how this proposed change is received by the Legislature and what changes are made. If you would like to read about the Sunset process, you can do so at the Sunset website.

Sunset Commission Proposal that DPS be Directed to Cease Permanently Disqualifying Individuals for Certain Convictions

This is the seventh part in an ongoing series reviewing proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). As we discussed previously, DPS is being reviewed by the Texas Sunset Advisory Commission, which has prepared its report for the Texas Legislature in the 2019 legislative session.

In this post, we look at the proposal that DPS be directed to cease permanently disqualifying individuals for certain convictions. The Sunset Commission notes that DPS’s “overly criminalistic approach to evaluating past criminal history does not follow standards contained” in the Texas Occupations Code. This recommendation would allow some licensees who would otherwise be permanently ineligible for a license the opportunity to prove that they deserve an opportunity to obtain an occupational license.

In addition, the Sunset Commission recommends that DPS be directed to review rules that apply blanket penalties for convictions related and unrelated to specific occupations. This would ensure DPS practices are not unfairly restricting entry into a regulated industry. These rule changes would allow many more applicants to receive occupational licenses to serve the citizens of Texas.

We will follow the legislative session closely to see how this proposed change is received by the Legislature and what changes are made. If you would like to read about the Sunset process, you can do so at the Sunset website.

Sunset Commission Proposal that DPS be Directed to Consider Mitigating and Aggravating Factors in Assessing Criminal History

This is the sixth part in an ongoing series reviewing proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). As we discussed previously, DPS is being reviewed by the Texas Sunset Advisory Commission, which has prepared its report for the Texas Legislature in the 2019 legislative session.

In this post, we look at the proposal that DPS be directed to consider mitigating and aggravating factors when assessing criminal history. Before a state agency denies, revokes, or otherwise takes action against a licensee based on criminal background, the Texas Occupations Code requires that agency to consider certain factors, such as the licensee’s rehabilitation, letters of recommendation, and overall criminal history. However, the Sunset Commission noted that DPS’s “[s]taff does not apply mitigating and aggravating factors in assessing whether a criminal conviction should preclude licensure.” The Sunset Commission further stated:

The department in particular has had problems evaluating mitigating and aggravating factors to criminal history for applicants and licensees of the private security program.

Because DPS’s current activities are not consistent with the Texas Occupations Code, the Sunset Commission proposes that the Legislature direct DPS to adopt a process for applying mitigating and aggravating factors in criminal history evaluations.

These changes would be tremendously helpful for allowing applicants with criminal backgrounds obtain licenses and the ability to practice their chosen profession. We will follow the legislative session closely to see how this proposed change is received by the Legislature and what changes are made. If you would like to read about the Sunset process, you can do so at the Sunset website.