1. (a) When licensing is required by stature to be preceded by notice and opportunity for hearing, the action shall be administered as a contested case as provided for in the Administrative Procedure Act (the Act) and these rules.

2. (b) For licenses covered by the Texas Government Code, Chapter 2005, when licensing is not required by statute to be preceded by notice and opportunity for hearing, the following shall apply.

   1. (1) An applicant for an initial license or renewal of a license shall submit to the department in timely fashion all applications, forms, bonds, tests, data, fees, and other material required by law to precede the issuance of such initial license or renewal license.
   2. (2) The department shall, within 15 days of the receipt of all such submissions, issue a written notice to the applicant which states that the application is complete and accepted or that the application is deficient. If such license is denied, the written notice shall set forth in detail the reasons for the denial and specify what additional information is required.
   3. (3) An applicant may contest the determination made by the department or the department's failure to comply with the time period established in paragraph (2) of this subsection by filing a notice of protest. A notice of protest shall be filed with the commissioner within 15 days of receipt by the applicant of the notice of such determination, or in the case of a contest of the time for processing, within 30 days of the department's receipt of an application.
   4. (4) Notice of protest being timely filed, the application shall be administered as a contested case as provided for in the Act and this chapter.
   5. (5) If notice of protest is not timely filed, such determination shall become final.
   6. (6) In the case of a timely protest as to the time for processing, if the commissioner determines that the specified time periods for processing have been exceeded and that there is no good cause for exceeding the deadline, the license or permit filing fee shall be reimbursed in full to the applicant.

   7. (7) The term "for good cause" as used in this section shall be found if:

      1. (A) the number of permits to be processed exceeds by 15% or more the number of permits processed in the same calendar quarter of the preceding year;
      2. (B) the department must rely on another public or private entity for all or part of its permit processing, and the delay is caused by the other entity; or
      3. (C) any other conditions exist giving the agency good cause for exceeding the period established for processing a permit; i.e., time delays due to public hearings and related matters.
   8. (8) When a licensee has made a timely and sufficient application for the renewal of a license or a new license for any activity of a continuing nature, the existing license does not expire until the application has been acted upon by the department, except as otherwise provided by applicable statute.
   9. (9) If timely and sufficient application for the renewal of a license is not made, the department may terminate the effectiveness of such license at the end of its stated term without notice or opportunity for a hearing.

3. (c) No revocation, suspension, annulment, withdrawal, or denial of renewal of a license or license application shall be effective unless, prior to the institution of agency proceedings to revoke, suspend, annul, withdraw, or deny a license or license application or renewal, the department has given notice and provided the licensee with an opportunity to show compliance with all requirements of the law for retention of the license or issuance of the license as follows.

   1. (1) If, after investigation of a possible violation and the facts surrounding that possible violation, the department determines that a violation has occurred that warrants the suspension, cancellation, revocation, annulment, withdrawal, or denial of a license or license application or a renewal application, the department shall give written notice of the alleged violations by certified mail to the person charged. The notice shall include a brief summary of the charges and a statement that the department intends to revoke, suspend, annul, deny, or withdraw the person's license or license application, a statement that the person has an opportunity to show compliance with requirements of the law for retention of the license, and a statement that the person has a right to a hearing on the occurrence of the violations alleged.
   2. (2) Not later than the 20th day after the date on which the notice is received, the person charged may make a written request for a hearing on the department's allegations and proposed action.
   3. (3) If the person charged requests a hearing or fails to respond to the notice, the department shall set a hearing and give notice of the hearing. The hearing shall be held by an administrative law judge designated by the department in accordance with the provisions of the Act and these rules.

4. (d) The commissioner may revoke, suspend, annul, or amend an existing valid license, disqualify a person from receiving or renewing a license, or deny to a person the opportunity to be examined for a license because of a person's conviction of a felony or a misdemeanor, if the crime directly relates to the performance of the occupation or activity for which the license is issued and the prior criminal conviction directly affects such person's present fitness to perform such occupation or activity.

   1. (1) In determining whether a criminal conviction directly relates to the performance of a licensed occupation or activity, the commissioner shall consider the factors listed in Texas Civil Statutes, Article 6252-13c, §4(b).

   2. (2) Those crimes which the department considers as directly related to the performance of a licensed occupation or activity include, but are not limited to:

      1. (A) any felony or misdemeanor as defined in the Texas Penal Code or similar statute of any other state of the United States of which fraud, dishonesty, or deceit is an essential element;
      2. (B) any criminal violation of the Texas Agriculture Code or predecessor statutes;
      3. (C) any criminal violation of statutes regulating the particular occupation or activity for which licensing is sought; and
      4. (D) any crime involving moral turpitude.
   3. (3) In determining whether a criminal conviction directly affects a person's present ability to perform a licensed occupation or activity, the commissioner shall consider the factors listed in Texas Civil Statutes, Article 6252-13c, §4(C)(1)-(6).
   4. (4) It shall be the responsibility of the applicant, to the extent possible, to secure and provide to the department the recommendations of the prosecution, law enforcement, and correctional authorities. The applicant shall also furnish proof in such form as may be required by the department that he or she has maintained a record of steady employment, has supported his or her dependents, has otherwise maintained a record of good conduct, and has 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.
   5. (5) Proceedings held before the department to establish factors contained in this subsection are governed by the Act and these rules.
   6. (6) Upon a licensee's felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision, his or her license shall be revoked.

Source Note:The provisions of this §2.1 adopted to be effective April 23, 1998, 23 TexReg 3821.