| (a) The Commission may take disciplinary action against
a license holder or applicant for a license under certain limited
circumstances as set forth in Article 38.01, Code of Criminal Procedure.
(b) Professional Misconduct Finding. On a determination
by the Commission that a license holder or applicant for a license
has committed professional misconduct in accordance with the definition
provided in §651.202 of this subchapter (relating to Definitions)
and under Article 38.01, Code of Criminal Procedure or violated Article
38.01, Code of Criminal Procedure, or a rule or order of the Commission
under Article 38.01, Code of Criminal Procedure, the Commission may:
(1) revoke or suspend the person's license;
(2) refuse to renew the person's license;
(3) reprimand the license holder; or
(4) deny the person a license.
(c) Probation. The Commission may place on probation
a person whose license is suspended. If a license suspension is probated,
the Commission may require the license holder to:
(1) report regularly to the Commission on matters that
are the basis of the probation; or
(2) continue or review continuing professional education
until the license holder attains a degree of skill satisfactory to
the Commission in those areas that are the basis of the probation.
(d) Factors in Determining Possible Adverse Action.
(1) In determining the appropriate disciplinary action
against a license holder or in assessing whether a prospective applicant
shall be granted a license, the Commission may consider the following
factors:
(A) the seriousness of the violation;
(B) the prevalence of misconduct by the individual;
(C) the individual's conduct history, including any
investigative history by the Commission;
(D) the harm or potential harm to the laboratory or
criminal justice system as a whole;
(E) attempted concealment of the act by the individual;
(F) any other relevant factors.
(2) The Commission considers the following factors
in determining whether a less severe or less restrictive disciplinary
action is warranted:
(A) candor in addressing the violation, including self-reported
and voluntary admissions of the misconduct or violation;
(B) acknowledgement of wrongdoing and willingness to
cooperate with the Commission;
(C) changes made by the individual to ensure compliance
and prevent future misconduct;
(D) rehabilitative potential;
(E) other relevant circumstances reducing the seriousness
of the misconduct; or
(F) other relevant circumstances lessening responsibility
for the misconduct.
(3) The license holder or license applicant shall have
the burden to present evidence regarding any mitigating factors that
may apply.
(4) This rule shall not be construed to deny any licensee
or applicant subject to disciplinary action by the Commission the
right to introduce mitigating evidence in a hearing before the Judicial
Branch Certification Commission. This rule also shall not be construed
to deny the Texas Forensic Science Commission the right to introduce
any evidence supporting any of the factors described above in a hearing
before the Judicial Branch Certification Commission.
(e) Disciplinary Proceedings by the Judicial Branch
Certification Commission. The Commission shall give written notice
by certified mail of a determination described by subsection (a) of
this section to a license holder who is the subject of the determination.
The notice must:
(1) include a brief summary of the alleged misconduct
or violation;
(2) state the disciplinary action taken by the Commission;
and
(3) inform the license holder of the license holder's
right to a hearing before the Judicial Branch Certification Commission
on the occurrence of the misconduct or violation, the imposition of
the disciplinary action, or both.
(f) Hearing Request. Not later than the 20th day after
the date the license holder receives the notice under subsection (d)
of this section, the license holder may request a hearing by submitting
a written request to the Judicial Branch Certification Commission.
If the license holder fails to timely submit a request, the Commission's
disciplinary action becomes final and is not subject to review by
the Judicial Branch Certification Commission.
(g) Judicial Branch Certification Commission Hearing.
If the license holder requests a hearing, the Judicial Branch Certification
Commission shall conduct a hearing to determine whether there is substantial
evidence to support the determination under subsection (a) of this
section that the license holder committed professional misconduct
or violated this subchapter or a Commission rule or order under this
subchapter. If the Judicial Branch Certification Commission upholds
the determination, the Judicial Branch Certification Commission shall
determine the type of disciplinary action to be taken. The Judicial
Branch Certification Commission shall conduct the hearing in accordance
with the procedures provided by Subchapter B, Chapter 153, Government
Code, as applicable, and the rules of the Judicial Branch Certification
Commission.
(h) License Status.
(1) If a license holder makes timely and sufficient
application for the renewal of a license, the existing license does
not expire until the application has been finally determined by the
Commission. If the application is denied or the terms of the new license
are limited, the existing license does not expire until the last day
for seeking review of a Commission decision or a later date fixed
by order of the Judicial Branch Certification Commission or Administrative
Regional Presiding Judges.
(2) A revocation, suspension, annulment, or withdrawal
of a license is not effective unless, before institution of Commission
proceedings:
(A) the Commission gives notice by personal service
or by registered or certified mail to the license holder of facts
or conduct alleged to warrant the intended action; and
(B) the license holder is given an opportunity to show
compliance with all requirements of law for the retention of the license.
(3) A Forensic Analyst License remains valid unless
it expires without timely application for renewal, is amended, revoked,
suspended, annulled or withdrawn, or the denial of a renewal application
becomes final. The term or duration of a license is tolled during
the period the license is subjected to review by the Judicial Branch
Certification Commission or Administrative Regional Presiding Judges.
However, the term or duration of a license is not tolled if, during
review by the Judicial Branch Certification Commission or Administrative
Regional Presiding Judges, the licensee engages in the activity for
which the license was issued.
(i) Interpreters for Deaf or Hearing Impaired Parties
and Witnesses.
(1) In an appeal of a disciplinary action by the Commission,
the Commission shall provide an interpreter whose qualifications are
approved by the Texas Department of Assistive and Rehabilitative Services
to interpret the proceedings for a party or subpoenaed witness who
is deaf or hearing impaired.
(2) In this section, "deaf or hearing impaired" means
having a hearing impairment, whether or not accompanied by a speech
impairment, that inhibits comprehension of the proceedings or communication
with others.
(j) Informal Disposition of Disciplinary Action Appeals.
Unless precluded by law, an informal disposition may be made of an
appeal of a disciplinary action by the Commission by:
(1) stipulation;
(2) agreed settlement;
(3) consent order; or
(4) default.
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| Source Note: The provisions of this §651.216 adopted to be effective May 16, 2018, 43 TexReg 3106; amended to be effective July 15, 2019, 44 TexReg 3549; amended to be effective September 15, 2019, 44 TexReg 4875; amended to be effective February 1, 2021, 46 TexReg 838 |
