Can a Texas agency deny me an occupational license because of my criminal history?

by | Feb 22, 2022 | Business & Professional License Defense

What do doctors, auctioneers, electricians, and barbers have in common? They all need a license to work in Texas. There are 47 state agencies in Texas that administer 774 license types, each with their own application requirements. Obtaining or renewing an occupational license can be an arduous process—and it’s even more difficult (if not impossible) when you have a criminal record.

One out of every five Americans holds an occupational license, according to 2021 data from the U.S. Bureau of Labor Statistics. For the one in three Americans that has a criminal record, obtaining or renewing an occupational license can be difficult (and sometimes impossible, depending on the occupation and conviction).

Under section 53.0232 of the Texas Occupations Code, licensing agencies can only consider criminal history that resulted in the person’s conviction or placement on deferred adjudication community supervision.[1]

In most cases, having a conviction or deferred adjudication on your record won’t permanently prevent you from obtaining a license. While there are a few, specific offenses or types of offense that permanently disqualify a person from seeking a particular license,[2] the vast majority of licenses don’t have such restrictions.

A licensing agency will determine the basis for eligibility/ineligibility by evaluating whether your conviction(s) or deferred adjudication(s) directly relates to the licensed occupation.[3] Factors considered include:

  • the nature and seriousness of the crime;
  • the relationship of the crime to the purposes for requiring a license to engage in the occupation;
  • the extent to which a license might offer an opportunity to engage in further criminal activity of the same type that you previously had been involved;
  • the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of the licensed occupation; and
  • any correlation between the elements of the crime and the duties and responsibilities of the licensed occupation.

If the licensing agency determines your conviction(s) or deferred adjudication(s) directly relates to the licensed occupation, it will then consider:

  • the extent and nature of your past criminal activity;
  • your age when the crime was committed;
  • the amount of time that has elapsed since your last criminal activity;
  • your conduct and work activity before and after the criminal activity;
  • evidence of your rehabilitation or rehabilitative effort while incarcerated or after release;
  • evidence of your compliance with any conditions of community supervision, parole, or mandatory supervision; and
  • other evidence of your fitness, including letters of recommendation.[4]

If a licensing agency determines that an application for an occupational license might not be approved, it will send the applicant a written notice of “pending denial.”[5] Notices differ by agency, so read it very carefully.

If you receive a notice of pending denial, all is not lost! You have 30 days (or more, if the licensing agency agrees to give you an extension) to submit additional, relevant information that clears up the denial issue(s). It’s a good idea to use the factors in section 53.023 of the Texas Occupations Code as a guideline for responding to the notice.

If the licensing agency denies you a license, you can appeal by timely requesting a hearing with the State Office of Administrative Hearings (SOAH). The administrative law judge will submit a recommendation, or proposed decision, to the licensing agency. The licensing agency will either accept SOAH’s recommendation (in full or with modifications) or reject the recommendation and issue a different decision. 

If the agency denies your license and you have exhausted administrative appeals, you may file an action in district court seeking judicial review of the agency’s final decision. The court will review the evidence previously presented to the licensing agency and applicable law. The petition must be filed in district court where the licensing agency is located (typically Travis County) no later than 30 days after the date the licensing agency’s decision is final and appealable.

Source: Best Practices Guide: Applying for an Occupational License After Conviction or Deferred Adjudication, SAO Report No. 20-327 (August 2020).

For specific questions about the process for obtaining a particular occupational license after a criminal conviction or deferred adjudication, contact the applicable licensing agency. If you think your license application or renewal will be denied based on your criminal record, or the agency has already denied your application or renewal, you should contact an experienced attorney.

[1] Tex. Occ. Code § 53.0232

[2] For example, the Texas State Board of Pharmacy will deny a license to anyone who: (1) is a registered sex offender; (2) has been convicted of or received deferred adjudication for a felony offense involving the use or threat of force; (3) has been previously convicted of or received deferred adjudication for sexual assault, aggravated assault, aggravated sexual assault, or injury to a child, elderly individual, or disabled individual, while the applicant held a license as a health care professional and was in the course of providing services; and (4) in which the victim of the offense was a patient of the applicant.

[3] Tex. Occ. Code § 53.022

[4] Tex. Occ. Code § 53.023

[5] Tex. Occ. Code § 53.0231

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