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The Texas Commission of Licensing and Regulation (Commission) adopts a new rule at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter C, §60.32, and amendments to an existing rule at Subchapter D, §60.40, regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the July 19, 2024, issue of the "Texas Register" (49 TexReg 5236). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 60, Procedural Rules of the Commission and the Department, implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation, and other laws applicable to state agencies.

The adopted rules enable the Department to require certain individuals to furnish e-mail addresses for purposes of receiving correspondence. The adopted rules additionally permit certain incarcerated individuals to apply for licensure prior to release. The adopted rules are necessary to implement §§3 and 5 of House Bill (HB) 3743, 88th Legislature, Regular Session (2023). HB 3743 took effect on September 1, 2023.

Section 3 of HB 3743 amended Occupations Code §51.207(c) to permit the Commission to adopt a rule to require an applicant, license holder, or other person who regularly receives correspondence from the Department to provide an e-mail address for purposes of receiving correspondence. The section further provides that any e-mail address furnished under this provision is confidential for purposes of Government Code, Chapter 552 (the Public Information Act).

The adopted rules implement HB 3743 §3 by authorizing the Department to require e-mail addresses from applicants, license holders, and others who regularly receive correspondence from the Department, and to deem an application incomplete if an applicant fails to provide an e-mail address when directed to do so.  The intent of this rule is to allow the Department the flexibility to use instructions on Department forms to make providing an e-mail address mandatory when, in the Department’s discretion, requiring an e-mail address would be administratively expedient, while also allowing the Department the flexibility to process an application without an e-mail address on a case-by-case basis.

HB 3743 §5 enacted Occupations Code §51.4014, which authorizes the Department to accept a license application from an inmate imprisoned in the Texas Department of Criminal Justice (TDCJ), but prohibits the Department from issuing the license until the applicant has been released. The Department interprets these provisions as permitting, but not requiring, the Department to accept inmate applications. The adopted rules implement these provisions by amending the existing rule at 16 TAC, Chapter 60, Subchapter, C, at §60.40, License Eligibility for Persons with Criminal Convictions. The existing rule prohibits a person incarcerated because of a felony conviction from obtaining or renewing a license and requires a person whose license is revoked by operation of law under Occupations Code §53.021(b) to wait until release from imprisonment before applying for a license. Because under Occupations Code §53.021(b), automatic license revocation occurs upon imprisonment due to a felony conviction, the existing rule effectively bars formerly licensed TDCJ inmates from applying for a license.

The adopted rules carve out two new circumstances under which the Department will accept inmate applications: when the inmate previously held a license of the same type for which the inmate is applying, and when the inmate has completed a relevant course of study in the Windham School District, or other program acceptable to the Department, to prepare the person for reentry into the workforce in the occupation. The adopted rules further restrict the acceptance of these applications to those inmates who are scheduled for release within the next 90 days. The adopted rules additionally keep in place a provision authorizing the issuance of student permits to inmates studying barbering or cosmetology in a Windham School District or TDCJ program. The Department enjoys a longstanding and successful partnership with the Windham School District and TDCJ. The adopted rules strike a balance in furthering a common goal of this partnership by ameliorating barriers convicted individuals face in reentry to the workforce, while avoiding the imposition of an undue burden on the Department by limiting the acceptance of applications to those reasonably likely to be eligible for approval in the near future.

SECTION-BY-SECTION SUMMARY

The adopted rules adopt new §60.32, E-mail Communications and Requirements.  Subsection (a) states the circumstances under which the Department may require a person to provide an e-mail address for purposes of receiving correspondence. Subsection (b) sets forth a potential consequence to an applicant for failing to provide an e-mail address when directed to do so, namely, that the application may be deemed incomplete.

The adopted rules amend §60.40. The first sentence of subsection (c) is deleted and replaced with verbiage clarifying that the provisions in (c) apply when the exceptions in new subsection (d) are inapplicable. Subsection (c)(3) is deleted, and the substance moved to the new subsection (d). New subsection (d), containing the exceptions, is added and subdivided into two paragraphs. Subsection (d)(1) contains the substance of former (c)(3), the student permit exception for the barbering and cosmetology program. Subsection (d)(2) sets forth the new exceptions implemented under Occupations Code §51.4014 and contains language permitting the Department to accept applications from TDCJ inmates who are scheduled for release within the next 90 days in two circumstances, which are set forth in subsection (d)(2)(A) and (d)(2)(B), respectively. Subsection (d)(2)(A) refers to previously licensed inmates and subsection (d)(2)(B) refers to inmates who have completed participation in certain career preparation programs.

PUBLIC COMMENTS

The proposed rules were published in the July 19, 2024, issue of the "Texas Register" (49 TexReg 5236). The public comment period closed on August 19, 2024. The Department received comments from four interested parties on the proposed rules. The public comments are summarized below.

Comment: The commenter objected to incarcerated individuals being issued a barbering or cosmetology license, citing safety concerns, including access to sharp tools and the fact that some incarcerated individuals suffer from violent or unethical tendencies or psychiatric disorders.

Department Response: The Department notes that although the proposed rules affect the timing of license issuance by permitting an application to be processed prior to the applicant being released from incarceration and the applicant to be licensed immediately upon release, the proposed rules do not otherwise loosen the requirements for an individual to become licensed. Under the existing rules, incarcerated individuals are permitted to receive training in regulated occupations and may apply for licensure upon being released, with the exception that student permits in the barbering and cosmetology program are already issued to some incarcerated individuals who are receiving occupational training. Under existing law, the criminal history of applicants is considered on a case-by-case basis in accordance with statutory standards. Therefore, the Department declines to make changes in response to this comment.

Comment: The commenter stated general opposition to all of the proposed rules but provided no supporting rationale.

Department Response: Because no rationale was provided, the Department declines to make changes in response to this comment.

Comment: The commenter expressed support for the proposed changes to Rule §60.40, stating that allowing incarcerated individuals to apply for a cosmetology license is a positive decision and will bring hope to individuals otherwise facing a bleak future.

Department Response: The Department appreciates the comment in support of the proposed rules. The Department did not make any changes to the proposed rules as a result of the comment.

Comment: The commenter expressed opposition to the changes to Rule §60.40, expressing that the commenter has worked as a massage therapist for 25 years. The commenter alluded to a former statute prohibiting those with prostitution convictions from becoming licensed as massage therapists and questioned why, in light of the strict standards for the profession, should a convicted individual be permitted to be licensed.

Department Response: The Department notes that although the proposed rules affect the timing of license issuance, the proposed rules do not otherwise loosen the requirements for an individual to become licensed. The Department analyzes an applicant’s criminal history and determines eligibility on a case-by-case basis in accordance with statutory standards. Lastly, the Department notes that although certain offenses are an automatic bar to a massage license, there have been recent statutory changes to the eligibility standards. The Department declines to make changes to the proposed rules in response to this comment.

COMMISSION ACTION

At its meeting on October 23, 2024, the Commission adopted the proposed rules as published in the "Texas Register".

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapter 51, and the program statutes for all of the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapters 171 (Court-Ordered Programs); and 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 401, Subchapter M (Laser Hair Removal); 754 (Elevators, Escalators, and Related Equipment); and 755 (Boilers); Labor Code, Chapter 91 (Professional Employer Organizations); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1603 (Barbers and Cosmetologists); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); 2310 (Motor Fuel Metering and Quality); 2311 (Electric Vehicle Charging Stations); and 2402 (Transportation Network Companies); and Transportation Code, Chapters 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety).

The legislation that enacted the statutory authority under which the adopted rules are proposed to be adopted is House Bill 3743, 88th Legislature, Regular Session (2023).

Subchapter C. License Applications and Renewals.

§60.32. E-mail Communications and Requirements.

(a) The department may require an applicant, licensee, or other person who regularly receives communications from the department, to provide an e-mail address for purposes of receiving correspondence. The department may send any correspondence to the e‑mail address furnished by the person unless another form of notice is required by law.

(b) The department may deem an application incomplete if the applicant fails to provide an e-mail address when directed to do so.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapter 51, and the program statutes for all of the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapters 171 (Court-Ordered Programs); and 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 401, Subchapter M (Laser Hair Removal); 754 (Elevators, Escalators, and Related Equipment); and 755 (Boilers); Labor Code, Chapter 91 (Professional Employer Organizations); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1603 (Barbers and Cosmetologists); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); 2310 (Motor Fuel Metering and Quality); 2311 (Electric Vehicle Charging Stations); and 2402 (Transportation Network Companies); and Transportation Code, Chapters 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety).

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 3743, 88th Legislature, Regular Session (2023).

Subchapter D. Criminal History and License Eligibility.

§60.40. License Eligibility for Persons with Criminal Convictions.

(a) Texas Occupations Code, Chapter 53 provides that the commission or executive director may suspend or revoke an existing license, disqualify a person from receiving a license, or deny a person the opportunity to take a licensing examination if the person has been convicted of an offense listed under §53.021(a) or has a deferred adjudication that qualifies as a conviction under §53.021(d). Any such action shall be made after consideration of the factors listed in Texas Occupations Code §53.022 and §53.023 and the guidelines issued by the department under §53.025.

(b) Pursuant to Texas Occupations Code §51.355, a person whose license is revoked by order of the commission or the executive director based on the person’s criminal history must wait one year from the date of revocation before applying for a new license.

(c) Except as provided in subsection (d), the following provisions apply to persons who are incarcerated or imprisoned.

(1) A person who is incarcerated because of a felony conviction is not eligible to obtain a license or renew a previously issued license under this chapter or any statute governing a program regulated by the department.

(2) A person whose license is revoked by operation of law pursuant to Texas Occupations Code §53.021(b) must wait until release from imprisonment before applying for a new license.

(d) Notwithstanding subsection (c), the department may:

(1) issue a student permit under Texas Occupations Code, Chapter 1603, to a person enrolled in a school administered by the Windham School District or the Texas Department of Criminal Justice; or

(2) in accordance with Texas Occupations Code §51.4014, accept a license application from a person who is in the custody of the Texas Department of Criminal Justice, is scheduled for release from incarceration or imprisonment within the next 90 days, and who:

(A) previously held a license of the same type for which the person is applying; or

(B) has completed a relevant course of study in the Windham School District, or other program acceptable to the department, to prepare the person for reentry into the workforce in the occupation for which the person seeks a license.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority. 

Filed with the Office of the Secretary of State, on November 7, 2024.

________________________________________________________________________

Doug Jennings
General Counsel
Texas Department of Licensing and Regulation

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