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RULE §651.217Ineligibility for License Based on Criminal Conviction

(a) A proceeding before the Commission to establish factors required to be considered under this section is governed by Chapter 53, Government Code. Any appeals proceeding in response to disciplinary action taken by the Commission in the form of license denial, revocation, suspension or other action taken by the Commission under this subsection is governed by Article 38.01 §4-c, Code of Criminal Procedure.

(b) Guidelines for consideration of criminal convictions. If an applicant has a criminal conviction above a Class C misdemeanor, the applicant may not be qualified to hold a forensic analyst license.

  (1) Convictions that may trigger a denial. Subject to paragraph (7) of this subsection, the Commission may suspend or revoke a forensic analyst license, disqualify a person from receiving a license, refuse to renew a person's license, or deny to a person the opportunity to take the general forensic licensing examination on the grounds the person has been convicted of:

    (A) an offense that directly relates to the duties and responsibilities associated with an analyst's 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.

  (2) A forensic analyst license holder's license may be revoked on the license holder's imprisonment following a felony conviction, felony community supervision, revocation of parole, or revocation of mandatory supervision.

  (3) An offense from another state containing elements substantially similar to the enumerated offenses under the Texas Penal Code shall be considered under this section the same way as the offense would have been considered had it been committed in Texas.

  (4) Offenses that apply to category paragraph (1)(A) of this subsection because they directly relate to the duties and responsibilities associated with an analyst's license may include, but are not limited to:

    (A) misrepresentation (e.g., fraud, extortion, bribery, theft by check, and deceptive business practices);

    (B) failure to register as a sex offender (as required by the Texas Code of Criminal Procedure, Chapter 62);

    (C) property crimes, such as theft or burglary;

    (D) crimes against persons, such as homicide, kidnapping, and assault;

    (E) drug crimes, such as possession;

    (F) multiple DWI and DUI crimes;

    (G) all felony convictions; and

    (H) Misdemeanors above a Class C misdemeanor and felony convictions considered by Texas courts to be crimes of moral turpitude.

  (5) Consequences. In the event of a criminal conviction, the Commission may take one of the following courses of action:

    (A) declare a prospective applicant unsuitable for a license;

    (B) deny a renewal application for an existing license;

    (C) revoke or suspend an existing license; or

    (D) deny a person the opportunity to take the general forensic analyst licensing examination.

  (6) Determining whether conviction directly relates to the duties and responsibilities associated with the analyst's license. In determining whether a criminal conviction directly relates to the duties and responsibilities associated with the analyst's license, the Commission shall consider each of the following factors:

    (A) the nature and seriousness of the crime;

    (B) the relationship of the crime to the purposes for requiring a license to engage in the analyst's occupation;

    (C) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved;

    (D) the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of the analyst's work; and

    (E) any correlation between the elements of the crime and the duties and responsibilities of the analyst's work.

  (7) Additional factors for consideration after determining conviction directly relates to occupation. If the Commission determines under paragraph (6) of this subsection that a criminal conviction directly relates to the duties and responsibilities associated with the analyst's license, the Commission considers the following in determining whether to take an action authorized by paragraph (1) of this subsection in addition to the factors listed in paragraph (6) of this subsection:

    (A) the extent and nature of the person's past criminal activity;

    (B) the age of the person when the crime was committed;

    (C) the amount of time that has elapsed since the person's last criminal activity;

    (D) the conduct and work activity of the person before and after the criminal activity;

    (E) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release;

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

    (G) other evidence of the person's fitness, including letters of recommendation.

  (8) An applicant has the responsibility, to the extent possible, to obtain and provide to the Commission the recommendations described by paragraph (7)(G) of this subsection.

(c) Notice and Review of Suspension, Revocation or Denial of License. If the Commission 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, the Commission shall notify the person in writing of:

  (1) the reason for the suspension, revocation, denial, or disqualification, including any factor considered under paragraphs (6) or (7) of this subsection that served as the basis for the suspension, revocation, denial, or disqualification;

  (2) the review procedure provided by §651.216(d)-(f) of this title (relating to Disciplinary Action); and

  (3) the earliest date the person may appeal the action of the Commission.

(d) Presiding Officer or Designee Authority to Approve Applications. The Commission's Presiding Officer or Designee may unilaterally approve an application where a criminal background check returns a misdemeanor conviction or convictions older than ten (10) years from the date the application is submitted and the Presiding Officer or Designee has determined the individual is eligible for a license notwithstanding the misdemeanor conviction or convictions.

Source Note: The provisions of this §651.217 adopted to be effective May 16, 2018, 43 TexReg 3106; amended to be effective February 26, 2019, 44 TexReg 869; amended to be effective May 5, 2019, 44 TexReg 2269; amended to be effective September 15, 2019, 44 TexReg 4875

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