|(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
(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,
(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
(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
(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