(a) The department reviews the criminal history of
each applicant for initial licensure, certification, and registration.
Reviews are also conducted when the department receives information
that a licensee has been charged, indicted, placed on deferred adjudication,
community supervision, or probation, or convicted of an offense described
in subsection (d) of this section.
(b) An applicant shall disclose and provide complete
information about all misdemeanor and felony charges, indictments,
deferred adjudications, episodes of community supervision or probation,
and convictions. Failure to make full and accurate disclosure may
be grounds for application denial or disciplinary action, including
revocation, against the applicant for, or holder of, a license, registration,
or certification.
(c) The department obtains criminal history information
from the Texas Department of Public Safety, including information
from the Federal Bureau of Investigations (FBI).
(d) For purposes of this section, the department has
identified the following offenses as offenses directly related to
the duties and responsibilities of the licenses, certifications, and
registrations issued under this subchapter, and has categorized them
according to the seriousness of the offense. The provisions of this
section shall not limit the authority of the department to take any
other action against a license, registration, or certification, or
the holder of, or applicant for, a license, registration, or certification,
as otherwise authorized by applicable statute or rule.
  (1) Category X includes:
    (A) capital offenses;
    (B) sexual offenses involving a child victim;
    (C) felony sexual offenses involving an adult victim
who is a client (one or more counts);
    (D) multiple counts of felony sexual offenses involving
any adult victim; and
    (E) homicide 1st degree.
  (2) Category I includes:
    (A) kidnapping;
    (B) arson;
    (C) homicide lesser degrees;
    (D) felony sexual offenses involving an adult victim
who is not a client (single count); and
    (E) attempting to commit crimes in Category I or X.
  (3) Category II includes felony offenses that are not
listed separately in this section and that result in actual or potential
physical harm to others and/or animals.
  (4) Category III includes:
    (A) class A misdemeanor alcohol and drug offenses;
    (B) class A misdemeanor offenses resulting in actual
or potential physical harm to others or animals;
    (C) felony alcohol and drug offenses; and
    (D) all other felony offenses not listed separately
in this section.
  (5) Category IV includes:
    (A) class B misdemeanor alcohol and drug offenses;
and
    (B) class B misdemeanor offenses resulting in actual
or potential physical harm to others or animals.
(e) Except as provided in subsection (j) of this section,
the department shall deny the initial or renewal licensure, certification,
or registration application of a person who has been convicted or
placed on community supervision in any jurisdiction for a:
  (1) category X offense during the person's lifetime;
  (2) category I offense during the 15 years preceding
the date of application;
  (3) category II offense during the ten years preceding
the date of application;
  (4) category III offense during the five years preceding
the date of application, unless, at the time of application, proceedings
have been dismissed and the person has been discharged after having
been placed on and completing community supervision following a deferred
adjudication; or
  (5) category IV offense during the three years preceding
the date of application.
(f) The department shall deny the initial or renewal
license, certification, or registration application of a person who
has been found to be incapacitated by a court on the basis of a mental
defect or disease.
(g) When a person's application is denied under subsection
(e) or (f) of this section, the person may reapply when:
  (1) the person receives a full pardon based on the
person's wrongful conviction;
  (2) the timeframes established in subsection (e) of
this section have been met; or
  (3) the person who had been found to be incapacitated
is found to be no longer incapacitated, in which case the provisions
of this section applicable to the status of the charge and prosecution
at that time will apply.
(h) The department shall suspend a license, certification,
or registration if the department receives written notice from the
Texas Department of Public Safety or another law enforcement agency
that the individual has been charged, indicted, placed on deferred
adjudication, community supervision, or probation, or convicted of
an offense described in subsections (d) and (e) of this section. The
licensee will remain subject to applicable renewal requirements during
the period of suspension. An application to renew any form of license
suspended under this subsection will be subject to the denial and
exception provisions as stated in subsection (e) of this section,
to the extent applicable at the time of renewal application. If subsection
(e) of this section does not apply, the applicant is otherwise eligible
for renewal, and the applicant is still subject to summary suspension
under this subsection, the applicable license will remain suspended
under this subsection upon renewal, and until paragraph (2) of this
subsection or subsection (e) of this section becomes applicable.
  (1) The department shall send notice stating the grounds
for summary suspension by certified mail to the license, certification,
or registration holder at the address listed in the department's records.
The suspension is effective three days after the date of mailing.
  (2) If no other bar to licensure, certification, or
registration exists at the time, the department will restore the person's
license, certification, or registration upon receipt of official documentation
that the charges have been dismissed or the person has been acquitted,
except that, where the dismissal follows a deferred adjudication,
the time frames set forth in subsection (e) of this section will apply.
(i) The department will defer action on the application
of a person who has been charged or indicted for an offense described
in subsection (d) of this section. If the person is convicted or placed
on community supervision for the offense, subsection (e) of this section
will apply. If the charges are dismissed or the person is acquitted,
the application will be processed without adverse action under this
section on the basis of those charges. However, the department may
consider the facts and evidence underlying the charge in determining
whether adverse action against the applicant might be warranted under §140.426
of this title (relating to Disciplinary Actions).
(j) Notwithstanding subsection (e) of this section,
if no other bar to the applicable licensure or renewal exists at the
time, the department may issue or renew, as applicable, an LCDC license,
registration, or certification of a person convicted or placed on
community supervision in any jurisdiction, within the timeframes set
forth in subsection (e) of this section, for a drug or alcohol offense
described in subsection (d) of this section, if the department determines
that the individual has successfully completed participation in a
peer assistance program approved by the department.
  (1) When an individual described in subsection (j)
of this section successfully reaches the re-entry phase of a peer
assistance program, the department may grant a temporary "re-entry
approval," with a limited term and any appropriate conditions, set
in conjunction with the peer assistance program, based upon the applicant's
needs and the anticipated length of the re-entry phase of the peer
assistance program for the applicant.
  (2) At the end of the term of the re-entry approval,
the department may extend the term if the applicant is still successfully
participating in the re-entry phase of the peer assistance program,
may grant the applicable initial or renewal license, registration,
or certification, or renew the LCDC license if the department determines
that the applicable individual has successfully completed the peer
assistance program, or shall deny the license under subsection (e)
of this section, if the LCDC has failed to successfully complete the
peer assistance program.
(k) A person whose license, certification, or registration
has been denied or suspended under this section may only appeal the
action if:
  (1) the person was convicted or placed on community
supervision; and
  (2) the appeal is based on the grounds that the timeframes
defined in subsection (e) of this section have been met.


Source Note: The provisions of this §140.431 adopted to be effective August 9, 2012, 37 TexReg 5788