Texas
 Restoration of Rights, Pardon, Expungement & Sealing

   

 

Last updated: June 29, 2017

I.  Restoration of Civil/Firearms Rights 

A. Civil Rights

The right to vote is lost upon conviction of “any felony, subject to such exceptions as the legislature may make,” Tex. Const. art. 6, § 1,1 as is the right to sit on a jury.  Tex. Gov’t Code § 62.102(7) (including misdemeanor theft as an additional disqualifier).   Bribery and certain other offenses may result in forfeiture of and ineligibility for office.  Tex. Const. art. 16, § 5; Tex. Gov’t Code § 406.018 (notary public; conduct amounting to willful neglect of duty or malfeasance); Tex. Local Gov’t Code § 87.031 (county office; any felony or a misdemeanor involving official misconduct); § 252.063 (municipal office; violation of bidding laws).

The right to vote is automatically restored upon completion of sentence.  Tex. Elec. Code § 11.002.  Other civil rights are restored only through a pardon, or gubernatorial restoration of rights for federal and foreign first offenders pursuant to Tex. Code Crim. Proc. § 48.05(a).   Persons convicted in other states must seek relief in the jurisdiction of their conviction.  Id.

B.  Firearms

A person convicted of a felony is prohibited from possessing any firearm for five years after the date of the person’s release from confinement or release from community supervision, parole, or mandatory supervision, whichever is later.  Tex. Penal Code § 46.04(a).  After that period, the person may possess a firearm, but only at the premises at which he lives.  § 46.04(a)(2).2  Firearms dispossession does not apply where a person conviction has been set aside pursuant to Tex. Code Crim. Proc. art. 42.12, § 5(a) and (c) (“a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense”).  Federal disabilities may still apply.

C.  Collateral Consequences

The Texas State Law Library has collected the provisions in the Texas codes that impose collateral consequences.  First created in 2002, the revised online edition of the catalog is kept current and provides links directly to the full statutes.  It is available at http://www.sll.texas.gov/libraryresources/collections/statutoryrestrictionsonconvictedfelons/code/.  Statutory restrictions are presented by code, by profession and business license, and by subject matter.

 

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

Under Tex. Const. art. 4, § 11(b), the governor may not issue a pardon except upon affirmative written recommendation from a majority of the members of the Board of Pardons and Paroles (except for a one-time 30-day reprieve in a capital case).  See Texas Board of Pardons and Paroles, Clemency, http://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html.  See also State ex rel. Smith v. Blackwell, 500 S.W.2d 97,100 (Tex. Crim. App. 1973) (discussing the 1936 constitutional amendment that requires the governor to act only upon the Board’s recommendation).  The Board consists of seven members appointed by the governor to staggered six-year terms.  Tex. Gov’t Code Ann. § 508.031(a). The governor also selects the Board’s chair.  Board members are full-time government employees.  They may be removed by the governor that appointed them at any time; those appointed by another governor may be removed only for cause.   For a history and analysis of clemency in Texas, see Texas Appleseed and Texas Innocence Network Project, The Role of Mercy: Safeguarding Justice in Texas through Clemency Reform (2005), http://standdown.typepad.com/The_Role_of_Mercy_Report.pdf.

Eligibility

Pardon is available upon completion of sentence.  37 Tex. Admin. Code § 143.5.  Generally, outstanding fines or other monetary obligations do not bar consideration.  Applications from misdemeanants accepted.  See also first offender restoration available to federal and foreign offenders, discussed below.

Effect

Full pardon defined as “an unconditional act of executive clemency by the governor which serves to release the grantee from the conditions of his or her sentence and from any disabilities imposed by law thereby.” 37 Tex. Admin. Code § 141.111. Pardon restores all civil rights lost as a result of conviction, including the right to hold public office, and the right to serve as executor or administrator of an estate, and removes barriers “to some, but not all, types of employment and professional licensing.”  The state board advises that “[l]icenses are granted at the discretion of state licensing boards for each profession, and requirements for restoring licensing eligibility in a particular field should be obtained from that licensing board.” Texas Board of Pardons and Paroles, Effects of a full pardon, http://www.tdcj.state.tx.us/bpp/exec_clem/Effects_of_a_Full_Pardon.htmlSee also Op. Atty. Gen. No. MW-270 (1980) (pardon does not entitle felony offender to be certified as peace officer); Dixon v. McCullen, 527 F. Supp. 711 (N.D. Tex. 1981) (pardon removes some, but not all, legal disabilities; it does not overcome statute automatically excluding convicted persons from certification as a police officer.)

Expungement following pardon

According to state pardon board, “A person receiving a full pardon after a conviction is entitled to an expunction of all arrest records relating to the conviction. This requires the applicant to request an expunction from the appropriate state court.” See Texas Board of Pardons and Paroles, Effects of a full pardon, supra.  After expungement, an individual may deny the fact of conviction, except that the individual must admit that he has a conviction that was expunged if questioned under oath at a criminal proceeding.  Tex. Code Crim. Proc. art. 55.03(3).   Full pardon does not relieve obligation to register as sex offender.  Only a “special pardon” (a full pardon on the grounds of innocence) declares a person innocent of the crime and provides for complete freedom from legal implications of the convictionId. at art. 62.002(c).

Process

Applicant files petition with Board Executive Clemency Section, which conducts an investigation. Petition form available at http://www.tdcj.state.tx.us/bpp/forms/FP%20App.pdf. Individual board members review each petition and cast their vote without consulting with others. Texas law allows Board members to perform their duties in clemency matters without meeting as a body, and without holding a public hearing. Tex. Gov’t Code Ann. § 508.047(b). (In this respect, Texas is unique among statutory pardon boards that have decision-making authority.) No hearing required for applicants for first offender restoration of rights, though three character affidavits are required. Board must recommend to the governor in writing by majority. All Board recommendations for and against clemency are public information. The Board does not publish substantive criteria upon which it makes decisions in clemency matters.

Frequency of Grants

Current Texas Governor Greg Abbott granted only a handful of pardons in his first two years in office:  four in 2015, and five in 2016, all to individuals with minor dated convictions, and only about half the number recommended to him by the Board.  http://www.dallasnews.com/news/texas-politics/2016/12/22/gov-greg-abbott-pardons-five.  During his ten years in office, Rick Perry granted close to 200 full pardons (59 for the so-called Tulia defendants), many for innocence, some only to restore firearms rights or civil rights to federal offenders. The following partial statistics come from the Annual Reports of the Texas Board of Pardons and Parole, http://www.tdcj.state.tx.us/bpp/publications/publications.html and the Board Ombudsman.

 

Fiscal Year3 

Applications considered  Recommended favorably by Board Full Pardon Granted by Governor Denied by Governor  Pardon for Innocence 
2015  139  8 4    
2014 152 12  12 28  0
2013 170 44 12    
2012 189 33 8 21 0
2011 190 36 8   0
2010 183 33 8   1
2009 114 47 7 30 2
2008 176 27 6 21 1
2007 148 24 12 41 3
2006 183 48 11 49 1
2005 221 44 0 0 2
2004 259 42 9 17 1
2003 238 76 574   1
2002 358 56 9 0 2
2001 44 17 0   2

 

 First Offender Restoration Process

For federal and foreign felony offenders with only one conviction (including misdemeanors), not involving drugs, guns, violence or firearms, governor may also restore civil rights under Tex. Code Crim. Proc. art. 48.05. This authority is also dependent upon receiving an affirmative recommendation from the Board. This is “a form of pardon that restores all civil rights under the laws of this state that an individual forfeits as a result of the individual’s conviction of an offense, except as specifically provided in the certificate of restoration.”  Art. 48.05(k).  An individual convicted of a prior federal offense may not apply for restoration of civil rights forfeited in the state as a result of the federal conviction if the individual has also been convicted of a misdemeanor offense.  Tex. Op. Atty. Gen. No. DM-486 (1998).  Federal and foreign first offenders become eligible for restoration of rights three years after federal convictions, and two years after foreign.  Tex. Code Crim. Proc. art. 48.05(b)(2).  Offenders may apply either to local sheriff, who sends it on to the Board, or directly to the Board, which conducts a paper review. The Board receives only two or three applications for restoration of rights each year, and recommends only one or two each year.  See Annual reports at http://www.tdcj.state.tx.us/bpp/publications/publications.html.

Contact

Joe Lange
Clemency Director

Board of Pardons and Parole
(512) 406-5852
lange@tdcj.state.tx.us 

B.  Judicial sealing or expungement

1.  Expungement of pardoned offenses and nonconviction records

Under art. 55.01(a) of the Texas Code of Criminal Procedure, “expunction” of all arrest records may be ordered in cases where an arrest does not result in a conviction, or where the conviction has been subsequently pardoned.  Individuals are entitled to expungement of acquittals, dismissals, and arrests not leading to conviction, unless another offense for which the person was convicted or remains to be prosecuted, or if the person has been convicted of another crime within the previous five years.  Except in the case of pardon and acquittal, or where the statute of limitations for prosecuting has tolled, a waiting period applies: 180 days for a class C misdemeanor charge (if no felony charge from same incident); one year for class B or A misdemeanor (if no felony charge from same incident); three years for felony.  Art. 55.01(a)(2)(A) (as amended by 2011 Tex. Sess. Law Serv. Ch. 894 (S.B. 462)).  The waiting period may be waived by the prosecuting attorney.  Id.  Expungement applies to pardons restoring civil rights, as well as pardons predicated upon a finding of innocence.   See Ex parte Hernandez, 165 S.W.3d 760, 763 (Tex. App.-Eastland, 2005).  Except for Class C misdemeanors, offenders are not entitled to expunction where a period of community supervision has been ordered, even if the charges are later dismissed pursuant to a deferred adjudication plan.  Art. 55.01(2)(B).  

Procedure

The procedure for expunging “all records and files relating to the arrest” is set forth in Tex. Code Crim. Proc. art. 55.02, and involves petitioning the district court in the county of conviction. Tex. Code Crim. Proc. art. 55.02, § (1).  Separate procedures exist for those acquitted or pardoned, § 1-1a, and those whose criminal record exists only because another individual gave false identifying information, § 2a.  Once an applicant for expungement of arrest records demonstrates his eligibility under the provisions of the statute governing expungement of records, the trial judge does not have the discretion to dismiss the petition or deny the request for an expunction.  § 2(d); Perdue v. Texas Dept. of Public Safety, 32 S.W.3d 333, 334-35 (Tex. App. 2000).  Pursuant to the procedure set forth in art. 55.02, § 3(a), the court shall order “any state agency that sent information concerning the arrest to a central federal depository to request the depository to return all records and files subject to the order of expunction;” agency and individual both have right of appeal.

Effect of expungement

“[T]he release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited,” and “the person arrested may deny the occurrence of the arrest and the existence of the expunction order.”  Tex. Code Crim. Proc. art. 55.03(1) and (2). “When questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, [the person] may state only that the matter in question has been expunged.”  Art. 55.03(3).

Deferred adjudication and dismissal

A person placed on deferred adjudication community supervision under section 5, article 42.12, Code of Criminal Procedure, who subsequently receives a discharge and dismissal under section 5(c), article 42.12 (discharge after completion of community supervision), is no longer subject to most collateral consequences, including firearms disabilities.  See Tex. Code Crim. Proc. art. 42.12, § 5(a) and (c) (“a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense,” but it may be taken into account in subsequent prosecution, and for certain licensing purposes.). See also special provisions on licensure described in Part III.   Additionally, under § 411.081(d) of the Texas Government Code, a person discharged under art. 42.12 may be eligible for an “order of nondisclosure.”  See below.  Under art. 42.12, most offenses are eligible for deferred adjudication, except for DUI, repeat drug trafficking near a school, a range of repeat felony sex crimes, and convictions for child sex crimes and murder.  Tex. Code Crim. Proc. art. 42.12, § 5(d).  In a felony case, the period of community supervision may not exceed 10 years.  

2.  Order of Nondisclosure (OND)

For many years, a person discharged under Tex. Code Crim. Proc. art. 42.12 has been eligible for an “order of nondisclosure” (OND).  In 2015, the Texas legislature extended OND eligibility to certain first offender misdemeanor convictions.  In all cases, anyone convicted of or discharged for an offense listed at Tex. Gov’t Code. § 411.074(b) at any time is ineligible for an OND.  Listed offenses include those requiring sex offender registration, domestic violence offenses, and other specified violent offenses.  An OND may not be ordered if a person is convicted or placed on deferred adjudication for another offense (excluding fine-only traffic offenses) during any applicable waiting period. § 411.074(a).  Eligibility criteria, waiting periods, and procedures depend on the offense type and disposition.  In all instances, a $28 fee must be paid before the court issues the order. §§ 411.072(c), 411.0745(b).

Automatic OND

First-offender non-violent misdemeanor discharged following deferred adjudication – For many non-violent misdemeanors, 5 the court is required to issue an OND upon discharge following deferred adjudication under Tex. Code Crim. Proc. art. 42.12, unless the court has previously made a finding of fact that an OND would not be in the interests of justice, or the offender has been previously convicted or placed on deferred adjudication (except for a fine-only traffic offense). Tex. Gov’t Code § 411.072; see also Texas Code Crim. Proc. art. 42.12, § 5(k).  The order is issued at the time of discharge if 180 days have passed since placement on community supervision, or on that 180th day if discharge occurs before that time. Tex. Gov’t Code § 411.072(b).  

OND by petition

Felonies and subsequent misdemeanors discharged following deferred adjudication; first-offender misdemeanor convictions; and first-offender DWI convictions – Offenders discharged under Art. 42.12 that are not eligible for an automatic OND, including those who are ineligible solely because of the judge’s finding that issuing an OND is not in the best interests of justice, may still seek one by petitioning the court that ordered deferred adjudication.   Tex. Gov’t Code § 411.0725 (eff. Sept. 1, 2017).  Waiting periods for serious misdemeanors (2 years) and felonies (5 years) apply.  § 411.0725(e).  There is no waiting period for subsequent misdemeanors that would otherwise be eligible for an automatic OND.  Id.  Most misdemeanor convictions may also be sealed upon petition to the sentencing court so long as a person has no prior convictions or deferred adjudications.  See §§ 411.073, 411.0735.  Excluded offenses are listed at §§ 411.073(a)(1), 411.0735(a)(1).6 Individuals convicted of misdemeanors that are punishable by fine only may petition for an OND immediately upon completion of sentence; otherwise, a two-year waiting period applies.  §§ 411.073(d)(2), 411.0735(d)(1)-(2); .

In 2017, the Texas legislature expanded eligibility for ONDs to certain first-offender driving while intoxicated offenses (blood-alcohol concentration less than .15) that do not result in a motor vehicle accidents involving another person. Tex. Gov’t Code §§ 411.0731, 411.0736. Waiting periods of 2-5 years apply. The waiting period is shorter (2-3 years, depending on sentence) if a condition of community supervision includes restrictions on motor vehicle operation for at least 6 months.

Where a petition is required, the procedure is the same regardless of the offense or disposition.  After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is “in the best interest of justice,” the court “shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense.”  Tex. Gov’t Code §§ 411.0725(d), 411.073(c), 411.0735(c); 411.0731(d), 411.0736(d).  Courts must inform eligible defendants of their right to receive petition for an order of nondisclosure before imposing a sentence or deferred adjudication.  Texas Code Crim. Proc. art. 42.03, § 5; art. 42.12, §5(a-1).

Effect

An order of nondisclosure prohibits criminal justice agencies from disclosing to the public criminal history record information related to an offense, and criminal history record information subject to an order of nondisclosure is excepted from required disclosure under the Public Information Act.  Tex. Gov’t Code § 411.0765.  A criminal justice agency may disclose criminal history record information that is the subject of the order only to other criminal justice agencies, for criminal justice or regulatory licensing purposes; one of the licensing and employment entities listed in Tex. Gov’t Code § 411.0765(b); or the person who is the subject of the order.  § 411.0765.  The entities listed in § 411.0765(b) include banks, schools, hospitals, various public licensing boards and agencies.    If a law enforcement agency receives a request for information subject to an OND from a person who is not authorized to receive the information, the agency may inform the person that it has “no record.”  Op. Atty. Gen. 2004, No. GA-0255.  See generally, FAQs at http://www.txdps.state.tx.us/administration/crime_records/pages/faq.htm. A person may not be required to disclose an offense subject to an OND on any application for licensing or employment.  § 411.0755.  Businesses may not publish information regarding a record subject to an OND if they have knowledge or notice of the order. Records subject to an OND are admissible in subsequent criminal proceedings and may be disclosed to prosecutors for criminal justice purposes.  § 411.0775.

3.  Juvenile records

The Automatic Restriction to Access of Records program automatically restricts access to juvenile records to every person and agency except criminal justice agencies. Tex. Fam. Code § 58.204.  Eligibility begins when a person reaches age 17. § 58.203.  Access restrictions are removed automatically if the person commits any jailable offense thereafter. § 58.211.  Most serious juvenile offenders are ineligible for the restricted access program.  §§ 58.202–03.  A juvenile offender may also petition for traditional sealing of juvenile records.  Like the restricted access program, sealing information must be given to the juvenile upon final discharge from the juvenile system.  § 58.003.  Unlike the restricted access program, traditional sealing requires a formal hearing.  Id.  Sealing is immediately available following acquittal or dismissal.  Id.  Sealing is not available for violent or habitual offenders.  Id.  There is a two-year waiting period for misdemeanors.  Id.  A two year waiting period also applies to felony adjudications, however the court may only order sealing if the juvenile is at least age 19 and certain criteria are met, including no subsequent convictions.  Id.  If a juvenile successfully completes the drug court program for either a felony or misdemeanor offense, the court may seal the record immediately.  Id. at (c-1) (as amended by 2011 Tex. Sess. Law Serv. Ch. 1322, § 19 (S.B. 407)).  Certain serious offenders are ineligible for sealing.  Id.  If records are sealed, the juvenile may deny their existence, and criminal justice agencies may only view them in limited situations.  Id.  Sealing is not overturned upon a subsequent conviction for a jailable offense.  Id.

 

III.  Nondiscrimination in Licensing and Employment

A.  Licensing 
Generally

Tex. Occupations Code Ann. § 53.021(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. An offense that directly relates to the duties and responsibilities of the licensed occupation
  2. an offense that does not directly relate to the duties and responsibilities of the licensed occupation and that was committed less than five years before the date the person applies for the license;
  3. an offense listed in Article 42A.054, Code of Criminal Procedure; or
  4. a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.

Subsection (a) does not apply to a person who has been convicted only of an offense punishable as a Class C misdemeanor unless the person is an applicant for or the holder of a license that authorizes the person to possess a firearm; and the offense for which the person was convicted is a misdemeanor crime of domestic violence.  § 53.021(a-1).

Section 53.022 of the Occupations Code requires licensing agencies to consider a number of factors in determining whether a conviction is directly related to the occupation:

(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 occupation;
(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and
(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.

Additional factors relevant to the “direct relationship” determination are set forth in § 53.023, and include:

(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; and
(6) other evidence of the person’s fitness, including letters of recommendation from:

(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;
(B) the sheriff or chief of police in the community where the person resides; and
(C) any other person in contact with the convicted person.

See also Smith v. Montemayor, No. 03-02-00466-CV, 2003 Tex. App. LEXIS 5099 (Tex. App. Austin 2003) (Commissioner of Insurance properly denied local recording agent’s license under the substantial evidence rule where applicant had two 25-year-old felony convictions involving the defrauding of elderly victims through the sale of an unauthorized insurance product; applicant failed to make restitution and failed to provide letters of recommendation from prosecutors, law enforcement, and correctional officers); Brown v. Texas Dep’t of Ins., 34 S.W.3d 683, (Tex. App. Austin 2000) (four past criminal convictions for theft-by-check offenses sufficiently related to the duties and responsibilities of an insurance agent to warrant revocation of license); Johnson v. Dallas, 702 S.W.2d 291 (Tex. App. Dallas 1985) (taxicab ordinance that automatically revoked livery license for any theft conviction committed within five years of license application was void because it directly conflicted with licensing rules imposed by former Tex. Rev. Civ. Stat. Ann. art. 6252-13c (now Tex. Occ. Code Ann. § 53.021)).  See also Sanchez v. Tex. State Bd. of Med. Examiners, 229 S.W.3d 498 (Tex. App, 2007) (physician properly disciplined based on guilty plea to solicitation of a patient’s murder, for which adjudication was deferred and charges ultimately dismissed; Medical Practice Act did not manifest legislative intent to strictly limit the prohibited practices of Tex. Occ. Code Ann. § 164.052 solely to acts or conduct committed within or in the guise of medical practice).

Proceedings are governed by the Administrative Procedure Act.  Tex. Occupations Code Ann. § 53.024.  Licensing authorities required to issue guidelines stating the reasons a particular crime is considered to relate to a particular license.  § 53.025.

The actual operation of this law is explained in Texas Public Policy Foundation, Working with Conviction: Criminal Offenses as Barriers to Entering Licensed Occupations in Texas (2007), available at http://www.texaspolicy.com/pdf/2007-11-PP28-licensing-ml.pdf:

While the factors enumerated in Chapter 53 are reasonable to consider for those offenses that truly relate to the occupation, the legislative intent of allowing licensure without a bureaucratic process for unrelated offenses has been undermined.  This is because many agencies view nearly all offenses as directly relating to the occupations they regulate.

This very thorough report gives numerous examples of overbroad regulations, as well as specific cases in which people were rejected for licensing or relicensing, sometimes under laws enacted many years after their conviction and even after they had held the same license for years without incident.  It also discusses various proposals that have been introduced into the Texas legislature for subjecting licensure to stricter regulation where criminal convictions are concerned, including making fewer categories of employment subject to licensure and requiring a more substantial justification for refusing to license those convicted of certain categories of offenses, even after many years of law-abiding conduct.

In March 2013 the University of Texas Law School’s William Wayne Justice Center released a report addressing the increasing use of criminal histories in Texas for purposes unrelated to criminal justice: “Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas.” http://www.utexas.edu/law/centers/publicinterest/research/criminalrecords_report.pdf.  The report offers specific recommendations including prohibiting public access to all non-conviction records and to deferred adjudication records after discharge and dismissal of the underlying case, and prohibit the bulk release or bulk sale of criminal history information.

Deferred Adjudication Guilty Pleas and Licensing 

Under legislation enacted in 2009, Texas law accords a degree of protection to deferred adjudication guilty pleas, providing that in most cases they will not be considered convictions for licensing purposes.

Disqualification based on a DA guilty plea had to be based on a finding relating to a particular person’s fitness or risk.  Under Tex. Occ. Code § 53.021(c), a plea of guilty pursuant to a deferred adjudication (DA) scheme may not be treated as a conviction for purposes of denying or revoking a license unless the licensing authority considers the person to be “a threat to public safety,” or if “employment of the person in the licensed occupation would create a situation in which the person has an opportunity to repeat the prohibited conduct.” § 53.021(d)(2).  Legislation enacted in 2013 extends this protection by limiting the “fitness/risk” exclusion to offenses requiring sex offender registration; or, in the case of any other offense, if less than five years have passed since completion of probation, or if conviction of the offense would trigger a mandatory licensing bar. § 53.021(d)(1).7  This exception for deferred adjudication guilty pleas does not apply where a particular license would authorize the person to provide law enforcement or public health, education, or safety services; or financial services.  § 53.021(e).

Under Tex. Occ. Code § 51.356(a)(2), the Texas Commission on Licensing and Regulation may deny, suspend or revoke a license if it determines that a deferred adjudication (DA) makes the person holding or seeking a license “unfit for the license.”  In addition, under 2013 amendments to this provision, the Commission may deny, suspend or revoke a license if the DA was for an offense requiring sex offender registration, if less than five years have passed since completion of probation for any other offense, or if conviction of the offense would trigger a mandatory licensing bar.  § 51.356(a)(1).

B.  Employment
Negligent Hiring

Effective September 1, 2013, a new chapter 142 was added to the Texas Civil Practice and Remedies Code to prohibit a cause of action from being brought against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense.  Tex. Civ. Prac. & Rem. Code § 142.002(a).  The bill’s provisions do not preclude a cause of action for negligent hiring or failure to supervise if the employee’s offense was committed while performing duties substantially similar to those reasonably expected to be performed in the employment, or under substantially similar conditions reasonably expected to be encountered in the employment, “taking into consideration the factors listed in Sections 53.022 and 53.023(a) . . .” See § 142.002(b), and discussion supra.  Certain violent and sexual offenses are excepted.

Regulation of Credit Reporting Companies

A 2013 statute regulates “business entities engaged in publication of criminal history information.” Tex. Bus. & Com. Code § 109.001 et seq.    Among other things, this law now prohibits publication of records that are not “complete and accurate.”  § 109.003(a).   Under this law, a record is considered “complete” if it “reflects the filing and disposition of criminal charges,” and “accurate” if it was obtained “from a law enforcement agency or criminal justice agency, including the Department of Public Safety.”  § 109.003(b).  Additional provisions of this 2013 Texas law give affected individuals the right to challenge the accuracy of their own criminal records, prohibit publication of records whose disclosure is prohibited under another state law (e.g., records that have been expunged, or which are subject to an “order of nondisclosure”), and create a civil remedy for violations of the act. §§ 109.004 – 109.006.

 


  1. The constitution directs the legislature to exclude from suffrage those convicted of bribery, perjury, forgery, and other “high crimes.”  Art. 1, §1(b).
  2. This 1994 limitation on firearms rights was upheld against ex post facto challenge in Williams v. State, 2000 Tex. App. LEXIS 7488  (2000).
  3. Figures refer to fiscal years, not calendar years.  Fiscal year runs from September 1 through August 31.
  4. Thirty-five of these pardons went to the Tulia defendants who were found innocent.
  5. Excluded offenses are those under Penal Code chapters 20 (Kidnapping, Unlawful Restraint, and Smuggling of Persons), 21 (Sexual Offenses), 22 (Assaultive Offenses), 25 (Offenses Against the Family), 42 (Disorderly Conduct and Related Offenses), 43 (Public Indecency), 46 (Weapons), or 71 (Organized Crime), and those involving domestic violence.
  6. Excluded offenses are those under section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.05, 49.06, or 49.065, Penal Code (alcohol related offenses), or Chapter 71, Penal Code (organized crime offenses);
  7. See Acts 2013, 83rd Leg., ch. 938 (H.B. 1659), §§ 1, 2, effective September 1, 2013.