SECTION 140.431. Criminal History Standards

(a) The department reviews the criminal history of each applicant for initial licensure, certification, and registration. Reviews are also conducted when the department receives information that a licensee has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section.

(b) An applicant shall disclose and provide complete information about all misdemeanor and felony charges, indictments, deferred adjudications, episodes of community supervision or probation, and convictions. Failure to make full and accurate disclosure may be grounds for application denial or disciplinary action, including revocation, against the applicant for, or holder of, a license, registration, or certification.

(c) The department obtains criminal history information from the Texas Department of Public Safety, including information from the Federal Bureau of Investigations (FBI).

(d) For purposes of this section, the department has identified the following offenses as offenses directly related to the duties and responsibilities of the licenses, certifications, and registrations issued under this subchapter, and has categorized them according to the seriousness of the offense. The provisions of this section shall not limit the authority of the department to take any other action against a license, registration, or certification, or the holder of, or applicant for, a license, registration, or certification, as otherwise authorized by applicable statute or rule.

(1) Category X includes:

(A) capital offenses;

(B) sexual offenses involving a child victim;

(C) felony sexual offenses involving an adult victim who is a client (one or more counts);

(D) multiple counts of felony sexual offenses involving any adult victim; and

(E) homicide 1st degree.

(2) Category I includes:

(A) kidnapping;

(B) arson;

(C) homicide lesser degrees;

(D) felony sexual offenses involving an adult victim who is not a client (single count); and

(E) attempting to commit crimes in Category I or X.

(3) Category II includes felony offenses that are not listed separately in this section and that result in actual or potential physical harm to others and/or animals.

(4) Category III includes:

(A) class A misdemeanor alcohol and drug offenses;

(B) class A misdemeanor offenses resulting in actual or potential physical harm to others or animals;

(C) felony alcohol and drug offenses; and

(D) all other felony offenses not listed separately in this section.

(5) Category IV includes:

(A) class B misdemeanor alcohol and drug offenses; and

(B) class B misdemeanor offenses resulting in actual or potential physical harm to others or animals.

(e) Except as provided in subsection (j) of this section, the department shall deny the initial or renewal licensure, certification, or registration application of a person who has been convicted or placed on community supervision in any jurisdiction for a:

(1) category X offense during the person's lifetime;

(2) category I offense during the 15 years preceding the date of application;

(3) category II offense during the ten years preceding the date of application;

(4) category III offense during the five years preceding the date of application, unless, at the time of application, proceedings have been dismissed and the person has been discharged after having been placed on and completing community supervision following a deferred adjudication; or

(5) category IV offense during the three years preceding the date of application.

(f) The department shall deny the initial or renewal license, certification, or registration application of a person who has been found to be incapacitated by a court on the basis of a mental defect or disease.

(g) When a person's application is denied under subsection (e) or (f) of this section, the person may reapply when:

(1) the person receives a full pardon based on the person's wrongful conviction;

(2) the timeframes established in subsection (e) of this section have been met; or

(3) the person who had been found to be incapacitated is found to be no longer incapacitated, in which case the provisions of this section applicable to the status of the charge and prosecution at that time will apply.

(h) The department shall suspend a license, certification, or registration if the department receives written notice from the Texas Department of Public Safety or another law enforcement agency that the individual has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsections (d) and (e) of this section. The licensee will remain subject to applicable renewal requirements during the period of suspension. An application to renew any form of license suspended under this subsection will be subject to the denial and exception provisions as stated in subsection (e) of this section, to the extent applicable at the time of renewal application. If subsection (e) of this section does not apply, the applicant is otherwise eligible for renewal, and the applicant is still subject to summary suspension under this subsection, the applicable license will remain suspended under this subsection upon renewal, and until paragraph (2) of this subsection or subsection (e) of this section becomes applicable.

(1) The department shall send notice stating the grounds for summary suspension by certified mail to the license, certification, or registration holder at the address listed in the department's records. The suspension is effective three days after the date of mailing.

(2) If no other bar to licensure, certification, or registration exists at the time, the department will restore the person's license, certification, or registration upon receipt of official documentation that the charges have been dismissed or the person has been acquitted, except that, where the dismissal follows a deferred adjudication, the time frames set forth in subsection (e) of this section will apply.

(i) The department will defer action on the application of a person who has been charged or indicted for an offense described in subsection (d) of this section. If the person is convicted or placed on community supervision for the offense, subsection (e) of this section will apply. If the charges are dismissed or the person is acquitted, the application will be processed without adverse action under this section on the basis of those charges. However, the department may consider the facts and evidence underlying the charge in determining whether adverse action against the applicant might be warranted under §140.426 of this title (relating to Disciplinary Actions).

(j) Notwithstanding subsection (e) of this section, if no other bar to the applicable licensure or renewal exists at the time, the department may issue or renew, as applicable, an LCDC license, registration, or certification of a person convicted or placed on community supervision in any jurisdiction, within the timeframes set forth in subsection (e) of this section, for a drug or alcohol offense described in subsection (d) of this section, if the department determines that the individual has successfully completed participation in a peer assistance program approved by the department.

(1) When an individual described in subsection (j) of this section successfully reaches the re-entry phase of a peer assistance program, the department may grant a temporary "re-entry approval," with a limited term and any appropriate conditions, set in conjunction with the peer assistance program, based upon the applicant's needs and the anticipated length of the re-entry phase of the peer assistance program for the applicant.

(2) At the end of the term of the re-entry approval, the department may extend the term if the applicant is still successfully participating in the re-entry phase of the peer assistance program, may grant the applicable initial or renewal license, registration, or certification, or renew the LCDC license if the department determines that the applicable individual has successfully completed the peer assistance program, or shall deny the license under subsection (e) of this section, if the LCDC has failed to successfully complete the peer assistance program.

(k) A person whose license, certification, or registration has been denied or suspended under this section may only appeal the action if:

(1) the person was convicted or placed on community supervision; and

(2) the appeal is based on the grounds that the timeframes defined in subsection (e) of this section have been met.

Source Note: The provisions of this §140.431 adopted to be effective August 9, 2012, 37 TexReg 5788