| (a) The Commission may suspend or revoke a license
or deny a person from receiving a license on the grounds that the
person has been convicted of a felony or misdemeanor that directly
relates to the duties and responsibilities of an occupation required
to be licensed by Occupations Code, Chapter 651 (Chapter 651).
(b) The Commission may not consider an arrest that
did not result in the person's conviction or placement on deferred
adjudication community supervision.
(c) The Commissioners may place an applicant or licensee
who has been convicted of an offense on probation by authorizing the
Executive Director to enter into an Agreed Order with the licensee.
The Agreed Order shall specify the terms of the probation and the
consequences of violating the Order.
(d) If the Commissioners suspend or revoke a license
or deny a person from getting a license, the Commission must notify
the person of the decision in writing. That notice must explain any
factor(s) considered under subsection (f) or (g) of this section that
served as the basis for the action and notify the licensee or applicant
he or she has the right to appeal that decision to SOAH.
(e) The Commission shall immediately revoke the license
of a person who is imprisoned following a felony conviction, felony
community supervision revocation, revocation of parole, or revocation
of mandatory supervision. A person in prison is ineligible for licensure.
Revocation or denial of licensure under this subsection is not subject
to appeal at SOAH.
(f) The Commission shall consider each of the following
factors in determining what crimes directly relate to the duties and
responsibilities of an occupation required to be licensed under Chapter
651, and therefore are included in subsection (h) of this section:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for
requiring a license to engage in the occupations of funeral directing
and/or embalming;
(3) the extent to which a license might offer an opportunity
to engage in further criminal activity of the same type as the person
previously had been involved;
(4) the relationship of the crime to the ability or
capacity required to perform the duties and discharge the responsibilities
of the licensed occupation; and
(5) any correlation between the elements of the crime
and the duties and responsibilities of the licensed occupation.
(g) If the person has been convicted of a crime enumerated
under subsection (h) of this section or a crime that otherwise directly
relates to the duties and responsibilities of the occupation required
to be licensed under Chapter 651, the Commission shall consider the
following in determining whether to take action authorized by Texas
Occupations Code Section 53.021:
(1) the extent and nature of the person's past criminal
activity;
(2) the age of the person when the crime was committed;
(3) the amount of time that has elapsed since the person's
last criminal activity;
(4) the conduct and work activity of the person before
and after the criminal activity;
(5) evidence of the person's rehabilitation or rehabilitative
effort while incarcerated or after release;
(6) evidence of the person's compliance with any conditions
of community supervision, parole, or mandatory supervision; and
(7) other evidence of the person's fitness including
letters of recommendation.
(h) The following crimes are directly related to the
occupations of funeral directing or embalming, or a crime that otherwise
directly relates to the duties and responsibilities of the occupation
required to be licensed under Chapter 651, the Commission shall consider
the following determining whether to take action authorized by Texas
Occupations Code Section 53. 021:
(1) Class B misdemeanors classified by Occupations
Code §651.602:
(A) acting or holding oneself out as a funeral director,
embalmer, or provisional license holder without being licensed under
Chapter 651 and the Rules of the Commission;
(B) making a first call in a manner that violates
Occupations Code §651.401;
(C) engaging in a funeral practice that violates Chapter
651 or the Rules of the Commission; or
(D) violating Finance Code, Chapter 154, or a rule
adopted under that chapter, regardless of whether the Texas Department
of Banking or another governmental agency takes action relating to
the violation;
(2) the commission of acts within the definition of
Abuse of Corpse under Penal Code, §42.08, because those acts
indicate a lack of respect for the dead;
(3) an offense listed in Article 42A.054, Code of Criminal
Procedure as provided by Occupations Code §53.021(a)(2);
(4) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure as provided by Occupations Code §53.021(a)(3);
(5) the following crimes because these acts indicate
a lack of respect for human life and dignity:
(A) Murder;
(B) Assault;
(C) Sexual Assault;
(D) Kidnapping;
(E) Injury to a Child;
(F) Injury to an Elderly Person;
(G) Child Abuse;
(H) Harassment; or
(I) Arson;
(6) the following crimes because these acts indicate
a lack of principles needed to practice funeral directing and/or embalming:
(A) Robbery;
(B) Theft;
(C) Burglary;
(D) Forgery;
(E) Perjury;
(F) Bribery;
(G) Tampering with a governmental record; or
(H) Insurance claim fraud; and
(7) the following crimes because these acts indicate
a lack of fitness to practice funeral directing and/or embalming:
(A) delivery, possession, manufacture or use of or
the illegal dispensing of a controlled substance, dangerous drug,
or narcotic; or
(B) multiple (more than two) convictions for driving
while intoxicated or driving under the influence.
(i) Multiple violations of any criminal statute shall
be reviewed by the Commission because multiple violations may reflect
a pattern of behavior that renders the applicant unfit to hold a funeral
director's and/or embalmer's license.
(j) The Commission may not consider a person to be
convicted of an offense if the judge deferred further proceedings
without entering an adjudication of guilt, placed the person on community
supervision, and dismissed the proceedings at the end of the community
supervision. However, if the Commission determines that the licensure
of the person as a funeral director and/or embalmer would create a
situation in which the person has the opportunity to repeat the prohibited
conduct, the Commission shall consider a person to have been convicted
regardless of whether the proceedings were dismissed after a period
of deferred adjudication if:
(1) the person was charged with any offense described
by Article 62.001(5) Code of Criminal Procedure;
(2) the person has not completed the term of community
supervision or the person completed the period of supervision less
than five years before the date of application; or
(3) a conviction of the offense would make the person
ineligible for the license by operation of law.
(k) Prior to taking action against a person as authorized
by Texas Occupations Code §53.021, the Commission shall provide
written notice to the person that includes a statement that the final
decision of the Commission will be based on factors listed under subsection
(f) or subsection (g) of this section and that the person has the
responsibility to provide evidence regarding those factors. The notice
shall allow the person no less than 30 days from receiving the notice
to submit any relevant evidence or information.
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| Source Note: The provisions of this §203.16 adopted to be effective October 18, 2015, 40 TexReg 7065; amended to be effective January 3, 2019, 44 TexReg 96; amended to be effective November 22, 2020, 45 TexReg 8134 |
