81R234 BEF-F

By: Guillen H.B. No. 70

A BILL TO BE ENTITLED

AN ACT

relating to the issuance of an occupational license to certain applicants with criminal convictions.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 53.002, Occupations Code, is amended to read as follows:

Sec. 53.002. APPLICABILITY OF CHAPTER. This chapter does not apply to:

(1) the Supreme Court of Texas, a person licensed under the court's authority on behalf of the judicial department of government, or an applicant for a license issued under the court's authority on behalf of the judicial department of government;

(2) a peace officer or an applicant for a license as a peace officer described by Article 2.12, Code of Criminal Procedure, or to a reserve law enforcement officer, a county jailer, or a public security officer licensed or applying for a license under Chapter 1701; or

(3) a person who:

(A) is licensed by the Texas Medical [State] Board [of Medical Examiners], the Texas State Board of Pharmacy, the State Board of Dental Examiners, the Texas State Board of Examiners of Psychologists, the Texas Board of Nursing, the Texas Optometry Board, or the State Board of Veterinary Medical Examiners; and

(B) has been convicted of a felony under Chapter 481 or 483 or Section 485.033, Health and Safety Code.

SECTION 2. Section 53.021(a), Occupations Code, is amended to read as follows:

(a) A licensing authority may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of:

(1) a felony or misdemeanor that directly relates to the duties and responsibilities of the licensed occupation that was committed less than five years before the date the person applies for the license;

(2) an offense listed in Section 3g, Article 42.12, Code of Criminal Procedure;

(3) a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure; or

(4) an offense for which the licensing authority finds that the person's status as a license holder enabled the person to commit the offense, if the person currently holds or is applying for the same type of license.

SECTION 3. Chapter 53, Occupations Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. PROVISIONAL LICENSING OF CERTAIN APPLICANTS WITH

PRIOR CRIMINAL CONVICTIONS

Sec. 53.101. ISSUANCE OF LICENSE OR PROVISIONAL LICENSE. (a) Notwithstanding any other law and if the applicant is otherwise qualified for the license, a licensing authority:

(1) may issue to an applicant who has been convicted of an offense described by Section 53.021(a):

(A) the license for which the applicant applied; or

(B) a provisional license under this subchapter; and

(2) shall issue to an applicant who has been convicted of an offense other than an offense described by Section 53.021(a):

(A) the license for which the applicant applied; or

(B) a provisional license under this subchapter.

(b) Notwithstanding Subsection (a)(1) and if the applicant is otherwise qualified for the license, a licensing authority shall issue to an applicant who has been convicted of only one offense and the offense was a misdemeanor, was not committed in the scope of employment in any job, and did not involve harm to a child or fraud:

(1) the license for which the applicant applied; or

(2) a provisional license under this subchapter.

Sec. 53.102. PROVISIONAL LICENSE TERM. A licensing authority may issue a provisional license under this subchapter for a term not to exceed:

(1) five years to an applicant who has been convicted of a felony; or

(2) three years to an applicant who has been convicted of a misdemeanor only.

Sec. 53.103. LIMITATIONS ON PRACTICE. A licensing authority may limit the practice by a holder of a provisional license under this subchapter in a manner determined necessary by the licensing authority to protect the public. The limitations may continue in effect after the date the person is issued a license under Section 53.104.

Sec. 53.104. ISSUANCE OF LICENSE ON EXPIRATION OF PROVISIONAL LICENSE. The licensing authority shall issue the license for which the applicant originally applied to a provisional license holder on the expiration of the provisional license term if the provisional license was not revoked under Section 53.105 and the applicant is otherwise qualified for the license.

Sec. 53.105. REVOCATION OF PROVISIONAL LICENSE. The licensing authority:

(1) shall revoke a provisional license if the provisional license holder:

(A) commits a new offense; or

(B) commits an act or omission that causes the person's community supervision, mandatory supervision, or parole to be revoked, if applicable; and

(2) may revoke a provisional license if the provisional license holder:

(A) violates a law or rule governing the practice of the occupation for which the provisional license is issued; or

(B) violates a condition of the person's community supervision, mandatory supervision, or parole that does not result in the revocation of the person's community supervision, mandatory supervision, or parole, if applicable.

Sec. 53.106. EFFECT OF REVOCATION OF PROVISIONAL LICENSE. If the licensing authority revokes a provisional license under Section 53.105, the provisional license holder is disqualified from receiving the license for which the person originally applied for a period prescribed by the licensing authority. If the licensing authority does not prescribe a period of disqualification, the provisional license holder is permanently disqualified from receiving the license for which the person originally applied.

Sec. 53.107. APPEAL OF REVOCATION OF PROVISIONAL LICENSE. A person whose provisional license is revoked under Section 53.105 may appeal the revocation only to the governing body of the licensing authority under procedures provided by the law governing the appeal of license revocations by the licensing authority.

Sec. 53.108. COORDINATION WITH PROBATION OR PAROLE DEPARTMENT. (a) An applicant who is on community supervision, mandatory supervision, or parole and who is issued a provisional license under this subchapter shall provide to the licensing authority the name and contact information of the probation or parole department to which the person reports.

(b) The licensing authority shall notify the probation or parole department that a provisional license has been issued.

(c) The probation or parole department shall notify the licensing authority if the person's community supervision, mandatory supervision, or parole supervision is revoked during the term of the provisional license.

SECTION 4. Chapter 53, Occupations Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. LIMITATION ON LIABILITY FOR HIRING

CERTAIN LICENSE HOLDERS

Sec. 53.151. DEFINITIONS. In this subchapter:

(1) "Employee" means a person other than an independent contractor who, for compensation, performs services for an employer under a written or oral contract for hire, whether express or implied.

(2) "Independent contractor" has the meaning assigned by Section 91.001, Labor Code.

(3) "License holder" means an employee or independent contractor who holds a license, including a provisional license.

Sec. 53.152. LIMITATION ON LIABILITY FOR HIRING LICENSE HOLDER CONVICTED OF OFFENSE. (a) A cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely for hiring a person who holds a license issued by a licensing authority to which this chapter applies who has been convicted of an offense.

(b) In a negligent hiring action against an employer, general contractor, premises owner, or other third party for the acts of a license holder that is based on a theory of liability other than that described by Subsection (a), the fact that the license holder was convicted of an offense before the license holder's employment or contractual obligation with the employer, general contractor, premises owner, or other third party, as applicable, may not be introduced into evidence.

(c) This section does not preclude any existing cause of action for failure of an employer or other person to provide adequate supervision of a license holder, except that the fact that the license holder has been convicted of a criminal offense may be introduced into evidence in the suit only if:

(1) the employer knew of the conviction or was grossly negligent in not knowing of the conviction; and

(2) the conviction was directly related to the nature of the license holder's work and the conduct that gave rise to the alleged injury that is the basis of the suit.

(d) The protections provided to an employer, general contractor, premises owner, or third party under this section do not apply in a suit concerning the misuse of funds or property of a person other than the employer, general contractor, premises owner, or third party, by a license holder, if, on the date the license holder was hired, the license holder had been convicted of a crime that includes fraud or the misuse of funds or property as an element of the offense, and it was foreseeable that the position for which the license holder was hired would involve discharging a fiduciary responsibility in the management of funds or property.

(e) This section does not create a cause of action or expand any existing cause of action.

SECTION 5. Subchapter E, Occupations Code, as added by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

SECTION 6. The changes in law made by this Act apply only to an application for a license filed with a licensing authority to which Chapter 53, Occupations Code, applies on or after the effective date of this Act. An application filed before that date is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

SECTION 7. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.