1. (a) Purpose. This section establishes the guidelines and criteria for determining the eligibility of individuals with criminal backgrounds to obtain and to retain licenses as a funeral director, embalmer, provisional funeral director, or provisional embalmer. As used in this section, the terms "license" and "licensee" include the terms "provisional license" and "provisional licensee," respectively.
2. (b) Conviction of Felony. Pursuant to the criteria in this rule, the commission may revoke or suspend existing licenses or may refuse to issue a license to an applicant if the licensee or applicant has been convicted of any felony.

3. (c) Conviction of Misdemeanor. Pursuant to the criteria in this rule, the commission may revoke or suspend existing licenses, and may refuse to issue a license to a person making an application for such, where the licensee or applicant has been convicted of a misdemeanor related to the practice of embalming or funeral directing.

   1. (1) The commission considers the practices of embalming and funeral directing to be professions where complete trustworthiness, honesty, integrity, and full compliance with all laws and regulations affecting those practices is required to protect the public from injury.

   2. (2) Based on considerations listed in Texas Civil Statutes, Article 6252-13c, §4(b), the commission concludes that the following misdemeanors are related to the practice of embalming and funeral directing and that conviction of such a misdemeanor demonstrates an inability to comport with the required standards of conduct:

      1. (A) any violation of Texas Civil Statutes, Article 4582b, which is classified as a misdemeanor;
      2. (B) any violation of Texas Civil Statutes, Article 548b, which is classified as a misdemeanor;
      3. (C) any violation of Chapter 195 of Texas Health and Safety Code, which is classified as a misdemeanor;
      4. (D) any violation of Texas Penal Code, §42.10; and
      5. (E) any misdemeanor involving moral turpitude, theft, fraud, forgery, falsification, misrepresentation, deception, breach of fiduciary responsibility, falsification of a document filed with or to be filed with a governmental body, or possession or delivery of marijuana, a controlled substance, or any other unlawful drug for the purpose of obtaining pecuniary gain.

4. (d) Effect Given Evidence. Evidence of criminal conviction and evidence of mitigating factors will be given the following effect by the commission:

   1. (1) Evidence of the conviction of a licensee or an applicant for a license of a misdemeanor related to the practice of embalming or funeral directing, as such misdemeanors are identified under subsection (c)(2) of this rule, or of any felony, shall be prima facie evidence that an unreasonable risk of harm to the consuming public would be presented if such an application for a license was granted or if such an existing license was not revoked or suspended.
   2. (2) To overcome such prima facie evidence, mitigating evidence of the type described in subsection (e) of this rule must affirmatively show, by a preponderance of all the evidence, that no unreasonable risk of harm to the consuming public would be presented if such an application for a license was granted or if such an existing license was not revoked or suspended.

   3. (3) Notwithstanding subsection (d)(1) of this rule, the commission may find that an unreasonable risk of harm to the consuming public may be sufficiently reduced by issuing a license, or by allowing retention of an existing license, with terms and conditions of probation attached. The conditions of probation in such cases shall specify the duration of such probation (which may be from three to ten years) and may include requirements that:

      1. (A) the licensee shall not work alone, not supervise others, and/or work only under the supervision of a designated licensee;
      2. (B) the licensee shall complete specified continuing education, in addition to all other requirements imposed by statute, rule, or otherwise, in specified areas of study, such as mortuary law or professional ethics; and/or
      3. (C) the licensee shall file periodic reports with the commission.

5. (e) Mitigating Factors. Where evidence is presented that a licensee or an applicant for a license has been convicted of a misdemeanor related to the practice of embalming or funeral directing, or has been convicted of a felony, the commission will consider evidence of the following as factors which may mitigate against the denial of an application for licensing or against the revocation or suspension of an existing license:

   1. (1) the extent and nature of the person's past criminal activity; provided, evidence of multiple convictions shall mitigate against issuance of a license and in favor of revoking or suspending a license;
   2. (2) the age of the person at the time of the commission of the crime; provided, attainment or non-attainment of any particular age will only be considered as a mitigating factor when such age was an element of the crime for which the person was convicted or was a factor considered in the sentence imposed, as revealed from the court's sentencing orders;
   3. (3) the amount of time that has elapsed since the person's last criminal activity; provided, such amount of time shall not be considered as a mitigating factor until it exceeds by at least one year the period of any sentence imposed, including any probation, and at least two years have elapsed since the last criminal activity;
   4. (4) the conduct and work activity of the person prior to and following the criminal activity; provided, conduct and work activity following the criminal activity shall be given greater weight than conduct and work activity prior thereto; and provided further, that evidence of steady employment, support for the person's dependents, non-imposed community service, a record of good conduct, and payment of all outstanding court costs, supervision fees, fines, and restitution as was ordered in all criminal cases in which the person was convicted will be considered as mitigating factors;
   5. (5) evidence of the person's rehabilitation, including rehabilitative effort while on any probation, while incarcerated, and/or following release from incarceration; and

   6. (6) other evidence of the person's present fitness, including letters of recommendation from:

      1. (A) the prosecution, law enforcement, probation, and/or correctional officers who prosecuted, arrested, or had supervision or custodial responsibility of the person;
      2. (B) the sheriff and chief of police in the community where the person resides; and/or
      3. (C) any other persons in contact with the convicted person.
6. (f) Proof of Mitigating Factors. To the extent the applicant or licensee desires such to be considered, it shall be that person's responsibility to obtain and offer at hearing any evidence of the type listed under subsection (e) of this rule. To the extent such evidence is available, copies shall be provided to the commission at least 30 days prior to hearing, or such time prior to the hearing as the evidence becomes available.

7. (g) Notice to Commission and Employers. Every licensee who has been convicted of a felony or who has been convicted of a misdemeanor identified in subsection (c)(2) of this rule shall provide notice of such conviction to the commission, each funeral establishment by whom the licensee is currently employed, and each funeral establishment with which the licensee seeks employment. Notice shall be given in accordance with the following.

   1. (1) Notice to Commission and Existing Employers. For convictions which occurred prior to the effective date of this rule, the notice shall be given within 14 days from such effective date. For convictions which occur after the effective date of this rule, the notice shall be given within 14 days from the date of such conviction.
   2. (2) Notice to Prospective Employers. Notice of a licensee's conviction shall be given at the time of submission of any application for employment with a funeral establishment, but in any ever, such notice shall be given by a licensee prior to entering into an employment relationship with a funeral establishment.

8. (h) Provision of Documents and Information. Within 14 days of a request for such, it shall be the responsibility of the applicant or licensee to secure and provide the commission with the following:

   1. (1) a certified copy of the judgment of each of the person's felony convictions and of each misdemeanor conviction identified under subsection (c)(2) of this rule; and
   2. (2) information to permit a request to be made for a criminal history check, including the person's full name, all aliases used by the person, the person's date of birth, race, sex, current driver's license number and state of issuance, and Social Security number.

Source Note:The provisions of this §201.17 adopted to be effective October 13, 1994, 19 TexReg 7792.