Texas Register

TITLE 22 EXAMINING BOARDS
PART 23TEXAS REAL ESTATE COMMISSION
CHAPTER 541RULES RELATING TO THE PROVISIONS OF TEXAS OCCUPATIONS CODE, CHAPTER 53
RULE §541.1Criminal Offense Guidelines
ISSUE 12/13/2019
ACTION Proposed
Preamble Texas Admin Code Rule

(a)For the purposes of Chapter 53, Texas Occupations Code, [Chapter 53, §§1101.354, 1102.107, 1102.108, 1102.109, and §535.400(f) of this title,] the Texas Real Estate Commission considers that a deferred adjudication deemed a conviction under §53.021 or a conviction of the following criminal offenses directly relates [relate] to the duties and responsibilities of a real estate broker and real estate sales agent because committing these [, real estate salesperson, easement or right-of-way agent, professional inspector, real estate inspector or apprentice inspector for the reason that the commission of the] offenses tends to demonstrate a [ the] person's inability to represent the interest of another with honesty, trustworthiness, and integrity:

  (1)offenses involving fraud or misrepresentation;

  (2)offenses involving forgery, falsification of records, or perjury;

  (3)offenses involving the offering, paying, or taking of bribes, kickbacks, or other illegal compensation;

  (4)offenses against real or personal property belonging to another;

  (5)offenses against the person;

  (6)offenses against public administration;

  (7)offenses involving the sale or other disposition of real or personal property belonging to another without authorization of law;

  (8)offenses involving moral turpitude;

  (9)offenses in violation of Chapter 21, Texas Penal Code (sexual offenses);

  (10)offenses for which the person has been required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure;

  (11)felonies involving the manufacture, delivery, or intent to deliver controlled substances;

  (12)offenses of attempting or conspiring to commit any of the foregoing offenses;

  (13)offenses involving aiding and abetting the commission of an offense listed in this section;

  (14)repeated violations of one criminal statute or multiple violations of different criminal statutes; and

  (15)felonies involving driving while intoxicated (DWI) or driving under the influence (DUI). [; and]

(b)For the purposes of Chapter 53, Texas Occupations Code, the Texas Real Estate Commission considers that a deferred adjudication deemed a conviction under §53.021 or a conviction of the following criminal offenses, directly relate to the duties and responsibilities of a professional inspector, real estate inspector, apprentice inspector and easement or right-of-way agent for the reason that the commission of the offenses tends to demonstrate the person's inability to represent the interest of another with honesty, trustworthiness, and integrity:

  (1)offenses involving fraud or misrepresentation;

  (2)offenses involving forgery, falsification of records, or perjury;

  (3)offenses involving the offering, paying, or taking of bribes, kickbacks, or other illegal compensation;

  (4)offenses against real or personal property belonging to another;

  (5)offenses against the person;

  (6)offenses against public administration;

  (7)offenses involving the sale or other disposition of real or personal property belonging to another without authorization of law;

  (8)offenses involving moral turpitude;

  (9)offenses in violation of Chapter 21, Texas Penal Code (sexual offenses);

  (10)offenses for which the person has been required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure;

  (11)felonies involving the manufacture, delivery, or intent to deliver controlled substances;

  (12)offenses of attempting or conspiring to commit any of the foregoing offenses;

  (13)offenses involving aiding and abetting the commission of an offense listed in this section; and

  (14)repeated violations of one criminal statute or multiple violations of different criminal statutes.

(c)[(b)] In determining whether a criminal offense not listed in subsections (a) and (b) [ subsection (a)] of this section is directly related to an occupation regulated by the Commission, the Commission shall consider:

  (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 occupation;

  (3)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; [and]

  (4)the relationship of the crime to the ability, capacity, or fitness 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.

(d)[(c)] When determining a person's present fitness for a license, the Commission shall also consider [the following evidence]:

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

  (2)the age of the person at the time of the commission of the offense;

  (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 following the criminal activity;

  (5)the person's compliance with the court-ordered terms and conditions while on parole, supervised release, probation, or community supervision;

  (6)the time remaining, if any, on the person's term of parole, supervised release, probation, or community supervision;

  (7)evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and

  (8)other evidence of the person's present fitness, including letters of recommendation [from: prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the person].

[(d)It is the responsibility of the applicant to provide to the Commission:]

  [(1)the recommendations of prosecution, law enforcement, and correctional authorities;]

  [(2)signed letters of character reference from persons in the applicant's business or professional community which confirm that the writer knows about the applicant's prior criminal conduct;]

  [(3)proof in such form as may be required by the Commission that he or she has maintained a record of steady employment;]

  [(4)proof that the applicant has supported his or her dependents, if any;]

  [(5)proof that the applicant has maintained a record of good conduct;]

  [(6)proof that the applicant has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases; and]

  [(7)if the applicant submits a letter of character reference from a prospective sponsor, the letter must confirm that the writer knows about the applicant's prior criminal conduct.]

(e)It is the applicant's or license holder's responsibility to obtain and provide the recommendations described in subsection (d)(8) of this section.

(f)When determining a person's fitness to perform the duties and discharge the responsibilities of a licensed occupation regulated by the Commission, the Commission does not consider an arrest that did not result in a conviction or placement on deferred adjudication community supervision.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 22, 2019

TRD-201904457

Chelsea Buchholtz

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: January 12, 2020

For further information, please call: (512) 936-3177



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