The Texas Real Estate Commission (TREC) proposes amendments to §541.1, concerning Criminal Offense Guidelines, and new §541.2, concerning Criminal History Evaluation Letters.

House Bills 963 and 2808, 81st Legislature, Regular Session (2009) amended Texas Occupations Code, Chapter 53. These bills changed the license eligibility requirements for persons with criminal histories and changed TREC's authority to review and consider a person's criminal history information. The proposed amendments and new rule clarify license eligibility for persons with criminal histories and outline the process by which a person may request and receive a criminal history evaluation letter under Chapter 53.

The proposed amendments to §541.1 clarify that the commission considers convictions and deferred adjudications of the offenses listed in the rule to be directly related to the duties and responsibilities of the licenses issued by the commission for the reasons articulated in the rule. The amendments clarify that the commission has determined that multiple violations which evidence a disregard for or inability to comply with the law and felony offenses involving driving while intoxicated or under the influence directly relate to the duties and responsibilities of a license issued by the commission.

The proposed new rule implements the new statutory requirements under Occupations Code, Chapter 53. The new statutory provisions require the commission to establish a process that will allow a person to submit a request for a criminal history evaluation. Under Chapter 1101, §1101.353, the commission is already authorized to issue a moral character determination of an applicant. Under the proposed rule, the commission will review the person's criminal history under Chapter 53 using the same process it currently uses to conduct a moral character determination under Chapter 1101. The intent of both statutes is to provide information about potential license ineligibility based on criminal history before a person spends time and money pursuing an education or training, taking an examination, or applying for a particular license. New §541.2 clarifies that a person may request an eligibility letter from the commission under Chapter 53 using the same form and paying the same fee required of persons applying for a moral character determination under §1101.353.

Loretta R. DeHay, General Counsel, has determined that for the first five-year period the proposed rules are in effect, there will be no direct cost to state or local government as a result of enforcing or administering the proposed rules. There will be a cost to state government as a result of administering the underlying statutory requirements for the criminal history evaluation letters; however, the statutes allow the commission to charge a fee to cover its costs in processing a criminal history evaluation request and issuing an evaluation letter. Any costs in performing these statutory responsibilities will be offset by the fee that the commission will charge and is previously established in the TREC rules under 22 TAC Chapter 535.

Ms. DeHay also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be greater clarity regarding license eligibility for persons with criminal histories.

There is no anticipated economic cost to persons who are required to comply with the proposed section unless the person wishes to obtain an eligibility letter before applying for a license. There will be no adverse economic effect on small or micro-businesses that are required to comply with the proposed rules. Occupations Code Chapters 53 and 1101 allow the commission to charge a fee to persons who request a criminal history evaluation letter in order to cover the costs in processing a criminal history evaluation request and issuing an evaluation letter, but obtaining an evaluation letter from the commission is not a prerequisite to applying for a license from the commission.

Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code, §2006.002, is not required.

Comments on the proposal may be submitted to Loretta R. DeHay, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. The deadline for comments is 30 days after publication in the Texas Register.

The amendments and new section are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to ensure compliance with the provisions of the Act.

The statutes affected by this proposal are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the proposed amendments.