SECTION 3.149. Criminal Convictions

(a) Pursuant to Chapter 53, Texas Occupations Code and §2005.052, Texas Government Code, the Board may suspend or revoke an existing certificate of registration, disqualify a person from receiving a certificate of registration, issue a provisional license subject to the terms and limitations of §3.27 of this chapter (relating to Provisional Licensure), or deny to a person the opportunity to be examined for a certificate of registration because of the person's conviction for committing an offense if:

(1) the offense directly relates to the duties and responsibilities of a Landscape Architect;

(2) the offense is listed in Article 42A.054, Texas Code of Criminal Procedure; or

(3) the offense is a sexually violent offense, as defined by Article 62.001, Texas Code of Criminal Procedure.

(b) The following procedures will apply in the consideration of an application for registration as a Landscape Architect or in the consideration of a Registrant's criminal history:

(1) Effective January 1, 2014, each Applicant shall submit a complete and legible set of fingerprints to the Department of Public Safety or a vendor under contract with the Department for the purpose of obtaining criminal history record information from the Department and the Federal Bureau of Investigation. The Applicant shall pay the cost of conducting the criminal history background check to the Department or the vendor on behalf of the Department. An Applicant who does not submit fingerprints in accordance with this subsection is ineligible for registration.

(2) Effective January 1, 2014, each Registrant on active status or returning to active status who has not submitted a set of fingerprints pursuant to paragraph (1) of this subsection shall submit a complete and legible set of fingerprints to the Department of Public Safety or a vendor under contract with the Department for the purpose of obtaining criminal history record information from the Department and the Federal Bureau of Investigation. The Registrant shall pay the cost of conducting the criminal history background check to the Department or the vendor on behalf of the Department. A Registrant who does not submit fingerprints in accordance with this subsection is ineligible for renewal of, or returning to, active registration. A Registrant is not required to submit fingerprints under this paragraph for the renewal of, or returning to, active registration if the Registrant previously submitted fingerprints under paragraph (1) of this subsection for initial registration or under this paragraph for a previous renewal of, or return to, active registration.

(3) The executive director may contact the Applicant or Registrant regarding any information about a criminal conviction, other than a minor traffic offense, disclosed in the Applicant's or Registrant's criminal history record. If the executive director intends to pursue revocation or suspension of a registration, or denial of a registration or opportunity to be examined for a registration because of a person's prior conviction of an offense, the executive director must:

(A) provide written notice to the person of the reason for the intended denial; and

(B) allow the person not less than 30 days to submit any relevant information to the Board.

(4) The notice provided by the executive director under this subsection must contain:

(A) a statement that the person is disqualified from being registered or being examined for registration because of the person's prior conviction of an offense specified in the notice; or

(B) a statement that:

(i) the final decision of the Board to revoke or suspend the registration or deny the person a registration or the opportunity to be examined for the registration will be based on the factors listed in subsection (d) of this section; and

(ii) it is the person's responsibility to obtain and provide to the Board evidence regarding the factors listed in subsection (d) of this section.

(5) If the executive director determines the conviction might be directly related to the duties and responsibilities of a Landscape Architect, the Board's staff will obtain sufficient details regarding the conviction to allow the Board to determine the effect of the conviction on the Applicant's eligibility for registration or on the Registrant's fitness for continued registration.

(c) In determining whether a criminal conviction is directly related to the duties and responsibilities of a Landscape Architect, the executive director and the Board shall consider each of the following factors:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to practice Landscape Architecture;

(3) the extent to which landscape architectural registration might offer an opportunity to engage in further criminal activity of the same type as that in which the Applicant or Registrant had been involved;

(4) the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of a Landscape Architect; and

(5) any correlation between the elements of the crime and the duties and responsibilities of a Landscape Architect.

(d) If the executive director or the Board determines under subsection (c) of this section that a criminal conviction directly relates to the duties and responsibilities of a Landscape Architect, the executive director and the Board shall consider the following in determining whether to suspend or revoke a registration, disqualify a person from receiving a registration, or deny to a person the opportunity to take a registration examination:

(1) the extent and nature of the Applicant's or Registrant's past criminal activity;

(2) the age of the Applicant or Registrant at the time the crime was committed;

(3) the amount of time that has elapsed since the Applicant's or Registrant's last criminal activity;

(4) the conduct and work activity of the Applicant or Registrant prior to and following the criminal activity;

(5) evidence of the Applicant's or Registrant's rehabilitation or rehabilitative effort while incarcerated or after release;

(6) evidence of the person's compliance with any conditions of community supervision, parole, or mandatory supervision; and

(7) other evidence of the Applicant's or Registrant's fitness to practice as a Landscape Architect, including letters of recommendation.

(e) Crimes directly related to the duties and responsibilities of a Landscape Architect include any crime that reflects a lack of fitness for professional licensure or a disregard of the standards commonly upheld for the professional practice of Landscape Architecture, such as the following:

(1) criminal negligence;

(2) soliciting, offering, giving, or receiving any form of bribe;

(3) the unauthorized use of property, funds, or proprietary information belonging to a client or employer;

(4) acts relating to the malicious acquisition, use, or dissemination of confidential information related to Landscape Architecture; and

(5) any intentional violation as an individual or as a consenting party of any provision of the Act.

(f) The Board shall revoke the certificate of registration of any Registrant who is convicted of any felony if the felony conviction results in incarceration. The Board also shall revoke the certificate of registration of any Registrant whose felony probation, parole, or mandatory supervision is revoked.

(g) If an Applicant is incarcerated as the result of a felony conviction, the Board may not approve the Applicant for registration during the period of incarceration. If an Applicant's felony probation, parole, or mandatory supervision is revoked, the Board may not approve the Applicant for registration until the Applicant successfully completes the sentence imposed as a result of the revocation.

(h) If the Board takes action against any Applicant or Registrant pursuant to this section, the Board shall provide the Applicant or Registrant with the following information in writing:

(1) the reason for rejecting the application or taking action against the Registrant's certificate of registration including any factor considered under subsections (c) or (d) of this section that served as the basis for the action;

(2) notice that upon exhaustion of the administrative remedies provided by the Administrative Procedure Act, Chapter 2001, Government Code, an action may be filed in a district court of Travis County for review of the evidence presented to the Board and its decision. The person must begin the judicial review by filing a petition with the court within 30 days after the Board's decision is final; and

(3) the earliest date the person may appeal.

(i) All proceedings pursuant to this section shall be governed by the Administrative Procedure Act, Chapter 2001, Government Code.

Source Note: The provisions of this §3.149 adopted to be effective March 1, 2001, 26 TexReg 1720; amended to be effective March 20, 2009, 34 TexReg 1851; amended to be effective November 29, 2010, 35 TexReg 10507; amended to be effective April 13, 2014, 39 TexReg 2574; amended to be effective July 8, 2020, 45 TexReg 4515