Restoration of Rights & Record Relief
Last updated: February 3, 2022
I. Loss & restoration of civil/firearms rights
A. Civil rights
The state constitution states that persons convicted of “any felony” are not allowed to vote, subject to “such exceptions as the Legislature may make.” Tex. Const. art. 6, § 1(a). In addition, “t]he legislature shall enact laws to exclude from the right of suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.” Art. 6, § 1(b). The right to vote is automatically restored upon “discharge [of] the person’s sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court.” Tex. Elec. Code § 11.002(4)(a). See Mason v. State, 598 S.W.3d 755 (St. App. 2020) (person on federal supervised released not restored to vote). Under Texas caselaw, a fine is imposed as part of the sentence (not simply as a condition of supervision), but restitution and court costs are not. See Burg v. State, 592 S.W.3d 444, 451 (Tex. Crim. App. 2020).
The same disqualification governs exclusion from elected office: Tex. Const. art. 16, § 2. See also art. 16, § 5: those convicted of bribery “shall be disqualified from holding any office of profit, or trust, in this State.” Tex. Elec. Code § 141.001 provides that to be eligible for elective office someone must “have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities.” 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). Eligibility for elective office is restored if a person is “pardoned or otherwise released from the resulting disabilities.” Tex. Elec. Code § 141.001. For federal and foreign felony offenders with only one conviction (including misdemeanors), not involving drugs, guns, violence or firearms, governor may restore civil rights under Tex. Code Crim. Proc. art. 48.05. This authority is also dependent upon receiving an affirmative recommendation from the Board.
The same constitutional standards apply to jury eligibility: “The legislature shall enact laws to exclude from serving on juries persons who have been convicted of bribery, perjury, forgery, or other high crimes.” Tex. Const. art. 5, § 14. See also Tex. Gov’t Code § 62.102(8) and (9) (including those with pending felony or misdemeanor charges, and misdemeanor theft as additional disqualifiers). Jury eligibility restored by pardon, or gubernatorial restoration of rights for federal and foreign first felony 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.
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).1 Others prohibited include those convicted of certain domestic violence offenses punishable as a Class A misdemeanor. 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. The 2021 law that legalized open carry of firearms
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/library–resources/collections/statutory–restrictions–on–convicted–felons/code/. Statutory restrictions are presented by code, by profession and business license, and by subject matter.
II. Pardon policy & practice
The governor’s authority to pardon is set forth in the State Constitution, and explained in Chapter 48 of the Code of Criminal Procedure. 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.
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.
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.html. See 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.) It is not clear whether a pardoned offense may serve as predicate.
D. Expungement following pardon
A pardon is grounds for an expungement order. Tex. Code Crim. Proc. art. 55.01(a)(1)B)(i). 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 conviction. Id. at art. 62.002(c).
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.
On Feb. 20, 2020, Gov. Abbott issued a specialized clemency application for survivors of human trafficking and domestic violence. See https://gov.texas.gov/news/post/governor-abbott-establishes-customized-clemency-application-for-survivors-of-human-trafficking-and-domestic-abuse. The customized application form is available at https://www.tdcj.texas.gov/bpp/forms/Human_Trafficking_Domestic_Violence_Offender_FP_App.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 is 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.
F. Frequency of grants
Current Texas Governor Greg Abbott has pardoned sparingly since taking office in 2015 (28 pardons as of April 2019), all to individuals with minor dated convictions, and less than half the number recommended to him by the Board – which only recommends a small fraction of the cases considered. Abbott’s pardons have tended to come at Christmastime, and are labeled by the press an “annual holiday ritual.” See e.g., https://www.dallasnews.com/news/politics/2016/12/22/gov-greg-abbott-pardons-five-texans/. Indeed, since 2015, the year Abbott took office, Board reports have lumped all “non-capital clemency” into one category without distinguishing commutations from pardons, giving the entire category no more than a sentence or two in a 30-page report otherwise chock full of information about its caseload. In the last Board report to report full pardons separately, the Board made a favorable recommendation in only 8 out of 276 applications received, of which the governor granted four. See https://www.tdcj.texas.gov/bpp/publications/FY%202015%20AnnualStatisticalReport.pdf.
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.
G. 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.
Board of Pardons and Parole
III. Expungement, sealing & other record relief
A. Order of Nondisclosure (OND) (sealing)
1. OND for misdemeanor convictions
First offense misdemeanor convictions: Most misdemeanor convictions are eligible for an OND upon petition to the sentencing court so long as the person has no prior convictions or deferred adjudications. See Tex. Gov’t Code §§ 411.073, 411.0735. Excluded offenses are listed at §§ 411.073(a)(1), 411.0735(a)(1).2 Individuals convicted of misdemeanors and placed on community supervision or of misdemeanors punishable by fine only may petition for an OND immediately upon completion of sentence; otherwise, a two-year waiting period applies. §§ 411.073(d), 411.0735(d).
First offense DWI: In 2017, the Texas legislature expanded eligibility for ONDs to certain first-offense 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.
2. OND for deferred adjudication/community supervision
Under art. 42A.102, most offenses are eligible for deferred adjudication, except for DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, child sex crimes, and murder. Tex. Code Crim. Proc. art. 42A.102(b).3 In a felony case, the period of community supervision may not exceed 10 years; in a misdemeanor case it may not exceed 2 years. Art. 42A.103. A person placed on “deferred adjudication community supervision” without a conviction under article 42A.101, 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. 42A.111(c) (“a dismissal and discharge under this article may not be considered 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 a subsequent prosecution, and for certain licensing purposes). See also special provisions on licensure described in Part III. Under § 411.0711, et seq. of the Texas Government Code, a person placed on deferred adjudication community supervision and discharged as defined in § 411.0715 may be eligible for an “order of nondisclosure” (OND). Except for Class C misdemeanors, defendants 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).
Automatic OND: For many non-violent misdemeanors,4 the court is required to issue an OND upon discharge without a petition (excluding the exceptions at § 411.074(b) described below) following deferred adjudication community supervision unless the court has previously made a finding of fact that an OND would not be in the interests of justice, or the person has been previously convicted or placed on deferred adjudication community supervision for an offense other than a fine-only traffic offense. Tex. Gov’t Code § 411.072. The order is issued at the time of discharge if 180 days have passed since placement on community supervision, or as soon as possible on or after the 180th day if discharge occurs before that time. Tex. Gov’t Code § 411.072(b). Per a 2019 law (HB 714), upon completion of the “veterans reemployment program” and all other conditions of community supervision, regardless whether the defendant meets other eligibility criteria, after notice to the state and a hearing on whether an order of nondisclosure is in the best interest of justice, the “court shall enter an order of nondisclosure.” § 411.0729.
OND by petition: People charged with felonies and serious and repeat misdemeanors who are discharged following deferred adjudication community supervision and who 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. Waiting periods for serious misdemeanors (2 years) and felonies (5 years) apply. § 411.0725(e). There is no waiting period for repeat misdemeanors that would otherwise be eligible for an automatic OND. Id.
Veterans treatment court: A person who successfully completes a veterans treatment court program (except if referred based on a DUI conviction) is entitled to file a petition for OND in the court that placed the person in veterans court, unless the person has previously convicted of an offense listed in Article 42A.054(a), Code of Criminal Procedure, or a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure, and was not convicted of a felony between the date of completion and the second anniversary of that date. § 411.0727.
3. Victims of human trafficking
Individuals charged with certain marijuana offenses, theft offenses, or prostitution and placed on deferred adjudication community supervision for such offenses may petition for an OND if their conviction or deferred adjudication was the result of their being a victim of human trafficking. Tex. Gov’t Code § 411.0728. A court may grant OND for multiple offenses at a single proceeding. See § 411.0728(c). Victims will be required to provide assistance in human trafficking or prostitution investigations or prosecutions—if requested by law enforcement—before receiving an OND, § 411.0728(a)(2), and wait one year following completion of sentence or dismissal of charges. See § 411.0728(d). “Completion of sentence” includes paying all fines, costs, and restitution. Id. Effective September 1, 2019, victims of human trafficking are eligible for community supervision, unless they have previously been placed on community supervision for a prostitution offense. See Tex. Crim. Pro. Code §§ 42A.054, 42A.102(b).
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, including automatic ONDs, a $28 fee must be paid before the court issues the order. §§ 411.072(c), 411.0745(b).
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), 411.0727, 411.0728, 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 placing a person on deferred adjudication community supervision. Texas Code Crim. Proc. art. 42A.106(b).
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 exempted 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 a criminal proceeding subject to an OND on any application for licensing or employment. § 411.0755. Records subject to an OND are admissible in subsequent criminal proceedings and may be disclosed to prosecutors for criminal justice purposes. § 411.0775.
B. Expungement of non-conviction records
Under art. 55.01(a) of the Texas Code of Criminal Procedure, a person who has been arrested “is entitled to have all records and files relating to the arrest expunged” if subsequently acquitted or pardoned, including but not limited to a pardon on grounds of innocence, or if no conviction results. Except for Class C misdemeanors , defendants are not entitled to expungement 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). 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). The waiting period may be waived by the prosecuting attorney.
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 or in which the arrest took place. Separate procedures exist for those acquitted or pardoned, those whose arrests did not result in a conviction, and those whose criminal record exists only because another individual gave false identifying information. 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 expungement. § 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 [expungement];” agency and individual both have right of appeal.
“[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).
C. Expungement of firearms convictions
In 2021 the legislature made certain firearms offenses legal, and provided for expungement of firearms convictions where the underlying conduct is no longer a crime. See HB1927, amending 55.01(a)(1)(C).
D. Juvenile records
Treatment of juvenile records was significantly altered with the enactment of S.B. 1304 in 2017. Under the new law, delinquency records are automatically sealed if the person:
(1) is at least 19 years of age;
(2) has not been adjudicated as having engaged in delinquent conduct or, if adjudicated for delinquent conduct, was not adjudicated for delinquent conduct violating a penal law of the grade of felony;
(3) does not have any pending delinquent conduct matters;
(4) has not been transferred by a juvenile court to a criminal court for prosecution under Section 54.02;
(5) has not as an adult been convicted of a felony or a misdemeanor punishable by confinement in jail; and
(6) does not have any pending charges as an adult for a felony or a misdemeanor punishable by confinement in jail.
Tex. Fam. Code § 58.253(b). Under a law enacted in 2019, a juvenile court, upon a finding that the allegations are not true, is required to immediately and without a hearing order the sealing of all related records. § 58.2551.
Individuals ineligible for automatic sealing may petition for sealing either upon reaching age 18 or two years after discharge so long as there are no pending charges and the person was not transferred to criminal court. § 58.256(c). Sealing is discretionary and may not be granted to anyone who:
(1) received a determinate sentence for engaging in:
(A) delinquent conduct that violated a penal law listed under Section 53.045; or
(B) habitual felony conduct as described by Section 51.031;
(2) is currently required to register as a sex offender under Chapter 62, Code of Criminal Procedure; or
(3) was committed to the Texas Juvenile Justice Department or to a post-adjudication secure correctional facility under Section 54.04011, unless the person has been discharged from the agency to which the person was committed.
§ 58.256(d). “If a person’s records have been sealed, the information in the records, the fact that the records once existed, or the person’s denial of the existence of the records or of the person’s involvement in a juvenile matter may not be used against the person in any manner ….” § 58.261(b). “On entry of the order, all adjudications relating to the person are vacated and the proceedings are dismissed and treated for all purposes as though the proceedings had never occurred.” Tex. Fam. Code § 58.258(c).
IV. Criminal record in employment & licensing
Texas is one of the few states that imposes no restrictions on consideration of criminal record even by public employers. However, it does extend some indirect protections to employees and applicants for employment.
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). However, employers can still be held liable for negligent hiring where the employer “knew or should have known” of a conviction that (1) was committed by the applicant while performing duties substantially similar to those expected to be encountered in the job for which they are being considered or under substantially similar conditions; or (2) is one of various violent crimes and sexual offenses listed in Section 3g, Article 42.12. sexual offenses. The “substantially similar” test is measured by “the factors listed in Sections 53.022 and 53.023(a) . . .” See § 142.002(b). These factors are those that govern licensing under the Texas Occupations Code. See discussion in the preceding section.
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.
In 2019 Texas enacted five laws affecting the occupational licensing process for people with a criminal record. In introducing the broadest of the new laws, the legislative summary states that “Concerns have been raised about the barriers to eligibility for an occupational license faced by Texans who have been convicted of an offense within five years of license application, regardless of whether the offense is related to the occupation.”5
The most comprehensive of the new laws, HB 1342, deleted the provision that allowed disqualification based on a conviction that is not substantially related to the occupation within five years of application, and otherwise makes major modifications to the standards and procedures for obtaining a license in most occupations (but not public health, education, safety, finance). It also creates a new “restricted license” aimed at facilitating licensure in air-conditioning and electrical work for people returning to the community from prison. Certain violent and sexual crimes, and drug felonies are excepted from the requirements of the law.
The second law, SB 1217, is much narrower, and simply prohibits the licensing agencies affected by HB 1342 from considering arrests not resulting in conviction or placement on deferred adjudication community supervision. The third law, HB1531, modifies standards that apply to certain specific licenses, primarily by deleting overbroad categories of disqualification or antiquated references to moral integrity (podiatrist, midwife, electrician, animal breeder, auctioneer). SB 1217 became effective June 14, 2019; HB 1342 and HB 1531 become effective on September 1, 2019. Section 9 of HB1342 requires the state auditor, in collaboration with licensing authorities and no later than September 1, 2020, to develop and publish a “guide of best practices” to help applicants with a prior conviction seeking occupational licenses.
HB1342 sets forth a two-step process for covered licensing agencies: First the agency must determine whether a person has been convicted of an offense that “directly relates to the duties and responsibilities of the licensed occupation.” See Tex. Occ. Code § 53.022. As noted above, a broad provision permitting consideration of any conviction within five years, even if unrelated, was deleted. Even after a conviction is determined to be “directly related,” the bill requires consideration of a variety of factors relevant to rehabilitation and likelihood of reoffending that must be considered before a person may be denied based upon their conviction, to include evidence of the person’s compliance with any conditions of community supervision. It repeals a requirement that the applicant furnish proof of having maintained a steady record of employment, having supported the applicant’s dependents, and having paid all outstanding court costs, supervision fees, fines, and restitution. See § 53.023.
A new § 53.0231 sets forth in detail procedures applicable in the event a license is to be denied, including an obligation on the part of the licensing agency to give an applicant a written explanation of the intended denial and 30 days to respond with relevant information. Upon a final adverse decision, the licensing agencies must notify individuals of any statutory factor (§§ 53.022 or 53.023) that supported the authority’s decision. § 53.051.
Persons whose licenses were revoked, generally must wait a one-year period before applying for a new license. See § 51.355(a). However, the new law will retain eligibility within one year following revocation if the licensing agency based its revocation solely on a “failure to pay an administrative penalty,” and either the person has paid that penalty in full or is on a payment plan. § 51.355(b).
Occupational licensing proceedings are governed by the Administrative Procedure Act. § 53.024. Licensing agencies are required to issue guidelines stating the reasons a specific crime is considered to relate to a specific license. § 53.025.
Restricted occupational licenses: Air-conditioning and electrical
HB 1342 adds a new section allowing for a “restricted license,” as an alternative to outright adverse action in two specific fields: air-conditioning and electrical. See §§ 51.357, 51.358. Under the new law, a licensing authority may impose “reasonable conditions” on a license such as limiting its scope or requiring supervision of the license holder. See § 51.357(b). Restricted licenses will be valid for the same term as unrestricted licenses of the same type, and upon expiration, persons may submit a renewal application seeking an unrestricted license. See § 51.358(a)–(b). When applicants apply for renewal there is a rebuttable presumption that they are entitled to an unrestricted license. § 51.358(c).
Section § 51.4041 provides an “alternative means” for evaluating a person’s eligibility for a license in these two fields. If an occupational license is revoked because of a conviction, the licensing authority—when evaluating eligibility—may accept the person’s education, training, and experience obtained while incarcerated as part of a subsequent license application. See § 51.4041(a-1). This provision applies only to persons who previously held an occupational license of the same type for which the person is reapplying.
Specific occupational licenses
SB 1531—effective September 1, 2019—revises the standards for licensure in specific occupations, limiting overbroad or antiquated language. For example, existing law governing podiatry licenses provides that the licensing agency may deny an occupational license if a person is convicted of “a felony” or “offense that involves moral turpitude.” See Tex. Occ. Code § 202.253(a-1)(2). The new law will delete this language; persons applying for podiatry licenses will not be denied based on convictions for felonies or offenses involving moral turpitude. Other occupations similarly affected by the new law include midwives, see § 203.404(a)(3) (deleting eligibility restrictions for persons convicted of a felony or misdemeanor involving moral turpitude); breeders, see § 802.107 (requiring notice to license holder before revocation); electricians, see § 1305.152(a) (deleting eligibility requirement that applicant demonstrate “honesty, trustworthiness, and integrity”); and auctioneers, see § 1802.052 (deleting eligibility restrictions for persons convicted of a felony).
- This 1994 limitation on firearms rights was upheld against ex post facto challenge in Williams v. State, 2000 Tex. App. LEXIS 7488 (2000).
- 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).
- However, per a 2019 law (HB 2582), intoxication offenses under Section 49.04 or 49.06 of the Penal Code are now eligible for deferred adjudication if certain prerequisites are met, subject to specified conditions, and eligible for a petition for an OND under specified criteria. For details, see Tex. Code Crim. Proc. art. 42A.102(b), art. 42A.408(e-1)-(e-2); Tex. Gov’t Code § 411.0726.
- 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.
- The need for reform in Texas’ occupational licensing laws was explained in a report by the 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.