Texas Administrative Code
Title 22 - EXAMINING BOARDS
Part 10 - TEXAS FUNERAL SERVICE COMMISSION
Chapter 203 - LICENSING AND ENFORCEMENT-SPECIFIC SUBSTANTIVE RULES
Subchapter A - LICENSING
Section 203.16 - Consequences of Criminal Conviction

Universal Citation: 22 TX Admin Code ยง 203.16

Current through Reg. 49, No. 38; September 20, 2024

(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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