(a) The purpose of this section is to establish guidelines
and criteria on the eligibility of persons with criminal backgrounds
to obtain a license or registration from the board and on the disciplinary
actions taken by the board. The section applies to all criminal convictions
and to all deferred adjudication community supervisions or deferred
dispositions, as authorized by the Act, for all types of licenses
and registrations.
(b) The board may suspend, revoke, or impose other
authorized disciplinary action on a current license or registration,
disqualify a person from receiving a license or registration, or deny
to a person the opportunity to be examined for a license or registration
because of a person's conviction or deferred adjudication of a crime
that serves as a ground for discipline under the Act, and that the
board determines directly relates to the duties and responsibilities
of a licensee, a registrant, or of an owner of a pharmacy. This subsection
applies to persons who are not imprisoned at the time the board considers
the conviction or deferred adjudication.
(c) The board shall revoke a license or registration
upon the imprisonment of the licensee, the registrant, or the owner
of a pharmacy following a felony conviction or deferred adjudication,
or revocation of felony community supervision, parole, or mandatory
supervision.
(d) A person in prison is not eligible for a license
or registration.
(e) An applicant for a license or registration from
the board shall disclose in writing to the board any conviction or
deferred adjudication against him or her at the time of application.
A current licensee or registrant shall disclose in writing to the
board any conviction or deferred adjudication against him or her at
the time of renewal.
(f) The board shall by rule determine and list in this
section which criminal offenses directly relate to the occupation
of a licensee or registrant, or the operation of a pharmacy. For all
other offenses not listed in this section, in considering whether
a criminal conviction or deferred adjudication directly relates to
the occupation of a licensee or a registrant, or the operation of
a pharmacy, the board shall consider:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for
requiring a license or registration to engage in the occupation of
the licensee or registrant, or the operation of a pharmacy;
(3) the extent to which a license or registration might
afford the licensee or registrant an opportunity to repeat the criminal
activity in which the person had been involved; and
(4) the relationship of the crime to the ability, capacity,
or fitness required to perform the duties and discharge the responsibilities
of the licensee or registrant.
(g) The board has the authority to impose disciplinary
action as authorized by the Act, for those criminal offenses that
provide grounds for discipline under the Act. In reaching a decision
regarding the severity of the disciplinary sanction to impose on a
license or registration, the board shall, in its discretion and unless
otherwise specified in §281.64 of this title (relating to Sanctions
for Criminal Offenses), also determine the person's fitness to perform
the duties and discharge the responsibilities of a licensee or registrant
by evaluating and balancing these factors in the following priority
with the first being the highest priority:
(1) the extent and nature of the person's past criminal
activity;
(2) the amount of time that has elapsed since the person's
last criminal activity;
(3) the person's rehabilitation or rehabilitative effort
while incarcerated or following release as corroborated by extrinsic
evidence;
(4) the age of the person at the time of the commission
of the crime, if younger than 21 years of age at the time of the crime;
(5) the conduct and work activity of the person prior
to and following the criminal activity; and
(6) other evidence of the person's present fitness,
including letters of recommendation from:
(A) prosecution, law enforcement, and correctional
officers who prosecuted, arrested, or had custodial responsibility
for the person;
(B) the sheriff and chief of police in the community
where the person resides; and
(C) any other persons in contact with the person.
(h) In order to establish the factors in subsection
(g) of this section, a person with a conviction or deferred adjudication
shall:
(1) to the extent possible, secure and provide to the
board the recommendations of the prosecution, law enforcement, and
correctional authorities specified in subsection (g)(6) of this section;
(2) cooperate with the board by providing the information
required by this section, including proof that he or she has:
(A) maintained a record of steady employment, as evidenced
by salary stubs, income tax records or other employment records for
the time since the conviction or deferred adjudication and/or release
from imprisonment;
(B) supported his or her dependents, as evidenced by
salary stubs, income tax records or other employment records for the
time since the conviction or deferred adjudication and/or release
from imprisonment, and a recommendation from the spouse or either
parent;
(C) maintained a record of good conduct as evidenced
by recommendations, absence of other criminal activity or documentation
of community service since conviction or deferred adjudication;
(D) paid all outstanding court costs, supervision fees,
fines, and restitution as may have been ordered in all criminal cases
in which he or she has been convicted, as evidenced by certified copies
of a court release or other documentation from the court system that
all monies have been paid; and
(E) obtained appropriate treatment and/or counseling,
if applicable.
(i) The board has determined that the following crimes
directly relate to duties and responsibilities of board licensees
or registrants. The commission of each indicates an inability or a
tendency for the person to be unable to perform or to be unfit for
licensure or registration, because commission of such crimes indicates
a lack of integrity and respect for one's fellow human being and the
community at large. Even if the commission of these crimes did not
occur while the licensee or registrant was on-duty or employed at
a pharmacy, the board has determined that the crimes directly relate
to the practice of pharmacy based on a lack of integrity and good
moral character exhibited by the commission of the crimes. In addition,
the direct relationship to a license or registration is presumed when
any crime occurs in connection with the practice of pharmacy or the
operation of a pharmacy. The crimes are as follows:
(1) practicing or operating a pharmacy without a license
or registration and other violations of the Pharmacy Act;
(2) deceptive business practices under the Texas Penal
Code;
(3) Medicare or Medicaid fraud;
(4) a misdemeanor or felony offense under the Texas
Penal Code involving:
(A) murder;
(B) assault;
(C) burglary;
(D) robbery;
(E) theft;
(F) sexual assault;
(G) injury to a child;
(H) injury to an elderly person;
(I) child abuse or neglect;
(J) tampering with a governmental record;
(K) forgery;
(L) perjury;
(M) failure to report abuse;
(N) bribery;
(O) harassment;
(P) insurance claim fraud;
(Q) driving while intoxicated;
(R) solicitation of professional employment under the
Penal Code §38.12(d) or Occupations Code, Chapter 102;
(S) mail fraud; or
(T) any criminal offense which requires the individual
to register with the Department of Public Safety as a sex offender
under Chapter 62, Code of Criminal Procedure.
(5) any crime of moral turpitude;
(6) a misdemeanor or felony offense under Chapters
431 and 481 through 486, Health and Safety Code and the Comprehensive
Drug Abuse Prevention and Control Act of 1970; or
(7) other misdemeanors or felonies which serve as grounds
for discipline under the Act, including violations of the Penal Code,
Titles 4, 5, 6, 7, 8, 9, and 10, which indicate an inability or tendency
for the person to be unable to perform as a licensee or registrant,
or to be unfit for licensure or registration, if action by the board
will promote the intent of the Pharmacy Act, board rules including
this chapter, and Occupations Code, Chapter 53.
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Source Note: The provisions of this §281.63 adopted to be effective September 3, 2006, 31 TexReg 6722; amended to be effective March 25, 2007, 32 TexReg 1508; amended to be effective June 8, 2008, 33 TexReg 4304; amended to be effective September 7, 2008, 33 TexReg 7218; amended to be effective December 7, 2010, 35 TexReg 10689; amended to be effective September 8, 2013, 38 TexReg 5721 |