22 Tex. Admin. Code § 101.8 – Persons with Criminal Backgrounds

(a) Mandatory Suspension. The Board shall suspend a license/registration on proof that the person has been:
1. (1) initially convicted of:
  1. (A) a felony;
  2. (B) a misdemeanor under Chapter 22, Penal Code, other than a misdemeanor punishable by fine only;
  3. (C) a misdemeanor on conviction of which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure;
  4. (D) a misdemeanor under Section 25.07, Penal Code; or
  5. (E) a misdemeanor under Section 25.071, Penal Code; or
2. (2) subject to an initial finding of guilt by a trier of fact of a felony under:
  1. (A) Chapter 481 or 483, Health and Safety Code;
  2. (B) Section 485.033, Health and Safety Code; or
  3. (C) the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §801 et seq.).
(b) Mandatory Revocation. The Board shall revoke the license/registration of a person:
1. (1) on final conviction of a person for an offense described under subsection (a) of this section, the Board shall revoke the person's license/registration; or
2. (2) upon the incarceration of a person pursuant to a conviction of a felony under any state or federal law.
(c) Discretionary Revocation, Suspension, or Denial of License/Registration Application.
1. (1) The board has determined that these criminal offenses directly relate to the occupation of a licensee or registrant. For all other offenses not listed in this section, in considering whether a criminal conviction or deferred adjudication directly relates to the occupation of a licensee or a registrant, the board shall consider:
  1. (A) the nature and seriousness of the crime;
  2. (B) the relationship of the crime to the purposes for requiring a license or registration to engage in the occupation of the licensee or registrant;
  3. (C) the extent to which a license or registration might afford the licensee or registrant an opportunity to repeat the criminal activity in which the person had been involved; and
  4. (D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensee or registrant.
2. (2) The Board may revoke or suspend an existing license/registration or deny application for licensure/registration if the Board finds that the applicant or license holder has:
  1. (A) been convicted of an offense that directly relates to the practice of dentistry;
  2. (B) been convicted of an offense that does not directly relate to the duties and responsibilities of the practice of dentistry and that was committed less than five years before the date the individual applies or has re-applied for the license/registration;
  3. (C) engaged in unprofessional or dishonorable conduct as defined by the Board's rules;
  4. (D) engaged in fraud, deceit, or misrepresentation in practicing dentistry or in seeking a license/registration;
  5. (E) been or currently is habitually intoxicated or addicted to drugs;
  6. (F) committed a dishonest or illegal practice in or connected to dentistry, dental hygiene, or dental assisting;
  7. (G) been found to have violated a law of this state relating to the practice of dentistry, dental hygiene, or dental assisting within the twelve (12) months preceding the date the person filed an application for a license/registration.
3. (3) The Board has determined that the following crimes directly relate to duties and responsibilities of board licensees or registrants. The commission of each indicates an inability or a tendency for the person to be unable to perform or to be unfit for licensure or registration, because commission of such crimes indicates a lack of integrity and respect for one's fellow human being and the community at large. Even if the commission of these crimes did not occur while the licensee or registrant was on-duty or employed at a dental office, the board has determined that the crimes directly relate to the practice of dentistry based on a lack of integrity and good moral character exhibited by the commission of the crimes. In addition, the direct relationship to a license or registration is presumed when any crime occurs in connection with the practice of dentistry. The crimes are as follows:
  1. (A) practicing dentistry without a license or registration and any criminal violation of the Dental Practice Act or other statutes regulating or pertaining to the professions of dentistry or dental hygiene, including criminal violations of statutes regulating other professions in the healing arts;
  2. (B) deceptive business practices under the Texas Penal Code;
  3. (C) Medicare or Medicaid fraud;
  4. (D) a misdemeanor or felony offense under the Texas Penal Code involving:
    1. (i) murder;
    2. (ii) assault;
    3. (iii) burglary;
    4. (iv) robbery;
    5. (v) theft;
    6. (vi) sexual assault;
    7. (vii) injury to a child;
    8. (viii) injury to an elderly person;
    9. (ix) child abuse or neglect;
    10. (x) tampering with a governmental record;
    11. (xi) forgery;
    12. (xii) perjury;
    13. (xiii) failure to report abuse;
    14. (xiv) bribery;
    15. (xv) harassment;
    16. (xvi) insurance claim fraud;
    17. (xvii) driving while intoxicated;
    18. (xviii) solicitation of professional employment under the Penal Code §38.12(d) or Occupations Code, Chapter 102;
    19. (xix) mail fraud; or
    20. (xx) any criminal offense which requires the individual to register with the Department of Public Safety as a sex offender under Chapter 62, Code of Criminal Procedure.
  5. (E) any crime of moral turpitude, including where fraud, dishonesty, or deceit is an essential element;
  6. (F) a misdemeanor or felony offense under Chapters 431 and 481 through 486, Health and Safety Code and the Comprehensive Drug Abuse Prevention and Control Act of 1970;
  7. (G) other misdemeanors or felonies which serve as grounds for discipline under the Act, including violations of the Penal Code, Titles 4, 5, 6, 7, 8, 9, and 10, which indicate an inability or tendency for the person to be unable to perform as a licensee or registrant, or to be unfit for licensure or registration, if action by the board will promote the intent of the Dental Practice Act, board rules including this chapter, and Occupations Code, Chapter 53;
  8. (H) any offense under state or federal law listed in §3g, Article 42.12, Code of Criminal Procedure;
  9. (I) any offense under state or federal law for a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure; and
  10. (J) any offense listed in §263.001 and §263.006, Occupations Code, Dental Practice Act.
4. (4) For purposes of this section, the Board may consider a person to have been "convicted of an offense" regardless of whether the proceedings were dismissed as a part of a deferred adjudication agreement with the court if, after consideration of the factors described by §53.022 and §53.023(a), Occupations Code, the Board determines that:
  1. (A) the person may pose a continued threat to public safety; or
  2. (B) employment of the person in the practice of dentistry, dental hygiene, or dental assisting would create a situation in which the person has an opportunity to repeat the prohibited conduct.
(d) Process for consideration. The Board has the authority to impose disciplinary action as authorized by the Act, for those criminal offenses that provide grounds for discipline under the Act. In reaching a decision regarding the severity of the disciplinary sanction to impose on a license or registration, the board shall, in its discretion and unless otherwise specified in the Act, also determine the person's fitness to perform the duties and discharge the responsibilities of a licensee or registrant by evaluating and balancing these factors in the following priority with the first being the highest priority:
1. (1) the extent and nature of the person's past criminal activity;
2. (2) the amount of time that has elapsed since the person's last criminal activity;
3. (3) the person's rehabilitation or rehabilitative effort while incarcerated or following release as corroborated by extrinsic evidence;
4. (4) the age of the person at the time of the commission of the crime, if younger than 21 years of age at the time of the crime;
5. (5) the conduct and work activity of the person prior to and following the criminal activity; and
6. (6) other evidence of the person's present fitness, including letters of recommendation from:
  1. (A) prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;
  2. (B) the sheriff and chief of police in the community where the person resides; and
  3. (C) any other persons in contact with the person.
(e) In order to establish the factors in subsection (d) of this section, a person with a conviction or deferred adjudication shall:
1. (1) to the extent possible, secure and provide to the board the recommendations of the prosecution, law enforcement, and correctional authorities specified in subsection (d)(6) of this section;
2. (2) cooperate with the board by providing the information required by this section, including proof that he or she has:
  1. (A) maintained a record of steady employment, as evidenced by salary stubs, income tax records or other employment records for the time since the conviction or deferred adjudication and/or release from imprisonment;
  2. (B) supported his or her dependents, as evidenced by salary stubs, income tax records or other employment records for the time since the conviction or deferred adjudication and/or release from imprisonment, and a recommendation from the spouse or other parent;
  3. (C) maintained a record of good conduct as evidenced by recommendations, absence of other criminal activity or documentation of community service since conviction or deferred adjudication;
  4. (D) paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted, as evidenced by certified copies of a court release or other documentation from the court system that all monies have been paid; and
  5. (E) obtained appropriate treatment and/or counseling, if applicable.
(f) It shall be the responsibility of the applicant or licensee/registrant to secure and provide to the Board the information specified in subsection (d) of this section. With respect to a request to obtain a license/registration from a person who has a criminal history, the executive director is authorized to close an eligibility file when the applicant has failed to respond to a request for information or to a proposal for denial of eligibility within 60 days thereof.
(g) A person in prison is not eligible for a license or registration.
(h) In addition to the mandatory revocation in §263.006, Occupations Code, the Board shall revoke a license or registration upon the imprisonment of the licensee or registrant following a felony conviction or deferred adjudication, or revocation of felony community supervision, parole or mandatory supervision.
(i) The Board may not reinstate or reissue a license/registration suspended or revoked under subsection (a) or (b) of this section, unless an express determination is made that the reinstatement or reissuance of the license/registration is in the best interests of the public and the person whose license/registration was suspended or revoked. The Board must base that determination on substantial evidence contained in an investigative report.
(j) An applicant for license or registration from the Board shall disclose in writing to the Board any conviction or deferred adjudication against him or her at the time of the application. A current licensee or registrant shall disclose in writing to the Board any conviction or deferred adjudication against him or her at the time of renewal.

Source Note:The provisions of this §101.8 adopted to be effective October 20, 1997, 22 TexReg 10131; amended to be effective April 17, 2001, 26 TexReg 2833; amended to be effective May 10, 2004, 29 TexReg 4473; amended to be effective November 27, 2005, 30 TexReg 7741; amended to be effective May 19, 2010, 35 TexReg 3814; amended to be effective December 22, 2010, 35 TexReg 11253; amended to be effective September 30, 2012, 37 TexReg 7483.