SECTION 3.26. Preliminary Evaluation of Criminal History

(a) An Applicant, Candidate or a person enrolled or planning to enroll in an accredited landscape architectural educational program may make a written request to the Board's executive director for a preliminary criminal history evaluation letter which states the person's eligibility for registration under §3.149 of this chapter (relating to Criminal Convictions).

(b) A person who requests a criminal history evaluation shall provide the following information:

(1) a statement describing the offenses for which the requestor has a criminal history;

(2) any court documents including, but not limited to, indictments, orders of deferred adjudication, judgments, probation records, and evidence of completion of probation, if applicable;

(3) the names and contact information of the parole or probation department, if any, to which the requestor reports; and

(4) the required fee for determining eligibility.

(c) Within 90 days after receiving a request which complies with subsection (b) of this section, the executive director shall issue a criminal history evaluation letter which states:

(1) a determination that a ground for ineligibility based upon criminal conduct does not exist; or

(2) a determination that the requestor is ineligible due to criminal conduct and a specific explanation of the basis for that determination, including any factor considered under §3.149(c) or (d) of this chapter (relating to Criminal Convictions) that served as the basis for the determination.

(d) For purposes of determining eligibility for registration, a record of conviction is conclusive evidence of guilt. The Board may not consider a conviction in determining eligibility for registration upon receipt of proof that the conviction or an order of probation with or without adjudication of guilt has been reversed or set aside.

(e) In the absence of evidence that was not disclosed by the requestor or reasonably available when a request for a criminal history evaluation was under consideration, the executive director's criminal history evaluation letter is a final determination regarding the requestor's eligibility for registration. If found to be ineligible for registration, a requestor may not apply for registration until one year after the date the letter is issued. A requestor who is determined to be ineligible may:

(1) submit a request for reconsideration of the determination of ineligibility based upon evidence that was not disclosed or reasonably available to the agency at the time the determination was made;

(2) submit a new request for an evaluation no sooner than one year after the date upon which the criminal history evaluation letter was issued; or

(3) request a hearing on the determination made in the executive director's criminal history evaluation letter. A hearing conducted pursuant to this section is subject to the Administrative Procedure Act, Chapter 2001, Government Code.

(f) The Board shall issue a final order on the determination made in the criminal history evaluation after consideration of a proposal for decision issued by an administrative law judge at the State Office of Administrative Hearings. The Board's final order must specify findings of fact and conclusions of law, stated separately, regarding the person's eligibility for registration in light of his or her criminal history record.

(g) A person who is found to be ineligible by a final order of the Board may not file another request for a criminal history evaluation or apply for registration until three (3) years after the date of the Board's final order. However, a person may request reconsideration of the final order based upon evidence that was not disclosed or reasonably available to the Board at the time the final order was issued.

Source Note: The provisions of this §3.26 adopted to be effective November 29, 2010, 35 TexReg 10506; amended to be effective July 8, 2020, 45 TexReg 4515