The Texas Commission of Licensing and Regulation (Commission) provides this public notice that, at its regularly scheduled meeting held September 25, 2018, the Commission adopted amendments to the Texas Department of Licensing and Regulation's (Department's) Criminal Conviction Guidelines pursuant to Texas Occupations Code §53.025(a). The Criminal Conviction Guidelines are updated from the original guidelines published on December 5, 2003 (28 TexReg 11018) to include the Massage Therapy program.

The Criminal Conviction Guidelines (guidelines) describe the process by which the Department determines whether a criminal conviction renders an applicant an unsuitable candidate for the license, or whether a conviction warrants revocation or suspension of a license previously granted. The guidelines present the general factors that are considered in all cases and the reasons why particular crimes are considered to relate to each type of license issued by the Department.

In 2015, the 84th Texas Legislature enacted Senate Bill 202 which provided for the transfer of thirteen health-related programs from the Department of State Health Services to TDLR. Seven of the thirteen programs transferred to TDLR, effective October 3, 2016, and the remaining six programs transferred November 1, 2017. The Massage Therapy program was transferred in the second phase.

Russell Rust, Carol Willess, Antonio Gracia Jr., and Karen Vasquez, members of the Massage Therapy Advisory Board, were appointed to serve on an enforcement workgroup. Agency staff met with the enforcement workgroup on March 2, 2018, to develop the criminal conviction guidelines for the Massage Therapy program.

The Criminal Conviction Guidelines for the Massage Therapy program will become a part of the overall guidelines that are already in place for other Department programs. The Department presented the applicable guidelines to Massage Therapy Advisory Board at its meeting on July 17, 2018, and received the Board's recommendation of approval.

The Criminal Conviction Guidelines for Massage Therapy program

Crimes against the person such as homicide, kidnapping and assault.

Reasons:

1. Licensees provide a personal service and interact with clients who consist of adults, the elderly, the disabled and children and potentially their care givers, family, friends, and others. Persons who have a history of committing such crimes would pose a danger to the clients or others. [Regulations refer to clients]

2. This occupation involves physical contact with clients and, potentially, close proximity to and interaction with their care givers, family, friends, and others, in private settings, to include clients' homes.

3. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving prohibited sexual conduct.

Reasons:

1. Section 455.152(a), Texas Occupations Code, states a person is not eligible for a license as a massage establishment, massage school, massage therapist, or massage therapy instructor if the person is an individual and has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication for an offense involving trafficking of persons, an offense involving prostitution, or another sexual offense.

2. Section 455.251(b)(1), Texas Occupations Code, requires the Commission or the Executive Director to revoke the license of a person licensed as a massage therapist or massage therapy instructor if the person has been convicted of, has entered a plea of guilty or nolo contendere to, or has received deferred adjudication for an offense involving prostitution or another sexual offense.

3. Section 455.251(c)(2), Texas Occupations Code, requires the Commission or the Executive Director to revoke the license of a person licensed as a massage school or massage establishment if an offense that involved prostitution or another sexual offense, and which resulted in a conviction, plea of guilty or nolo contendere to, or grant of deferred adjudication for the offense, occurred on the premises of the school or establishment.

4. Licensees provide a personal service and interact with clients, who consist of adults, the elderly, the disabled and children and potentially their care givers, family, friends, and others. Persons who have a history of committing such crimes would pose a danger to the clients or others.

5. This occupation involves physical contact with clients and, potentially, close proximity to and interaction with their care givers, family, friends, and others, in private settings.

6. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving children, the elderly or the disabled as victims.

Reasons:

1. Licensees interact with clients who consist of children, the elderly, and the disabled and, potentially, their care givers, family, friends, and others, some of whom may be children, elderly or disabled, as a personal service provider and in a position of trust and authority. Persons who have a history of committing such crimes could exploit this position and would pose a danger to the clients or others.

2. This occupation involves physical contact with clients and, at times, close proximity to their care givers, family, friends, and others, in private settings.

3. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes against property such as theft or burglary.

Reasons:

1. Licensees interact with adults, the elderly, the disabled and children in a service provider/client role, often in private settings. Licensees also interact with staff of massage therapy schools and massage therapy establishments. Persons who have a history of committing such crimes would pose a risk to the property of clients and others.

2. Licensees would have access to unsecured personal property of clients and their care givers, family, friends, and others.

3. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving fraud or deceptive trade practices

Reasons:

1. Licensees interact with clients and their care givers, family, friends, and others, as a provider and in a position of trust and authority. Persons who have a history of committing such crimes could exploit this position and would pose a danger to the clients or others or a threat to their economic assets.

2. This occupation involves close proximity to and physical contact with clients and their care givers, family, friends, and others in private settings.

3. Licensees would have access to personal and confidential information of clients.

4. Licensees may be involved in the billing of clients and may be involved in filing insurance claims and government documents.

5. This occupation provides persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving the possession, possession with intent to deliver, possession with intent to distribute, delivery, distribution or manufacture of drugs or other dangerous substances.

Reasons:

1. Licensees interact with clients and their care givers, family, friends, and others, as a provider and in a position of trust and authority. Persons who have a history of committing such crimes could exploit this position and would pose a danger to the clients or others by providing them with drugs, controlled substances or other dangerous substances.

2. This occupation involves close proximity to and physical contact with clients and their care givers, family and friends in private settings.

3. Persons who have a history of drug possession or dealing could potentially have drugs or other dangerous substances in their systems which would make them a danger to themselves or others.

4. These occupations provide persons with this type of criminal history the opportunity to engage in further similar conduct.

Crimes involving being under the influence of alcohol, drugs, or dangerous substances.

Reasons:

1. Licensees interact with adults, the elderly, the disabled and children in a provider/client role. Persons who have a history of committing such crimes would pose a danger to the clients or others.

2. This occupation involves close proximity to and physical contact with clients and their care givers, family and friends in private settings.

3. Persons with this type of criminal history could potentially have alcohol, drugs or other dangerous substances in their systems which would make them a danger to their clients or others.

Crimes involving violations of Chapter 455, Texas Occupations Code.

Reasons:

Section 455.152(b), Texas Occupations Code, states a person convicted of a violation of Chapter 455, Texas Occupations Code, the statutes that govern the occupation of massage therapy, is ineligible for a license as a massage establishment, massage school, massage therapist, or massage therapy instructor until the fifth anniversary of the date of the conviction. Crimes against the person such as homicide, kidnapping and assault.

A copy of the complete Criminal Conviction Guidelines is posted on the Department's website and may be obtained at www.tdlr.texas.gov. You may also contact the Enforcement Division at (512) 539-5600 or by email at enforcement@tdlr.texas.gov to obtain a copy of the complete guidelines.

TRD-201804234

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Filed: September 28, 2018