PART 1. TEXAS DEPARTMENT OF INSURANCE
CHAPTER 1. GENERAL ADMINISTRATION
SUBCHAPTER D. EFFECT OF CRIMINAL CONDUCT
The commissioner of insurance adopts amendments to 28 TAC §1.502, concerning licensing persons with criminal history. These amendments update the section for consistency with Occupations Code §§53.021, 53.022, and 53.023. The amendments are adopted without changes to the proposed text published in the May 5, 2023, issue of the Texas Register (48 TexReg 2316). The rule will not be republished.
REASONED JUSTIFICATION. House Bill 1342, 86th Legislature, 2019, amended Occupations Code §§53.021, 53.022, and 53.023, which contain factors to be considered by licensing agencies when contemplating how a criminal conviction relates to a licensed occupation. Section 1.502 incorporates elements of Occupations Code §§53.021, 53.022, and 53.023 regarding offenses and criteria to consider when licensing an individual with a criminal background.
In addition, the adopted amendments update the list of criminal offenses considered under §1.502 to reflect changes in the Code of Criminal Procedure and the Penal Code since the rule was last amended in 2010, and it makes additional updates to the section based on practical experience under the current text of the section.
The adopted amendments are described in the following paragraphs.
Section 1.502(a) - (c). The adoption makes nonsubstantive changes to the text for plain language purposes and to correct capitalization.
Section 1.502(d). The adoption amends subsection (d) to address factors currently included in subsections (f) and (g) of the section.
New text is also included in subsection (d) to address Code of Criminal Procedure provisions cited by Occupations Code §53.021 for which the department may refuse to issue an original license or revoke, suspend, or refuse to renew.
Section 1.502(e). The adoption adds new subsection (e), stating that the department will consider the factors specified in Occupations Code §53.022 and §53.023 in determining whether to issue an original license or authorization or revoke, suspend, or refuse to renew a license or authorization. This text replaces text in current subsection (h), which addresses the factors in Occupations Code §53.022 and §53.023 by listing them.
The subsections that follow new subsection (e) are redesignated as appropriate to reflect the addition of the new section.
Section 1.502(f). The former subsection (e), redesignated as subsection (f), provides a non-inclusive list of crimes the department considers to be of such serious nature that they are directly related to the duties and responsibilities of the licensed occupation or of prime importance in determining fitness for licensure or authorization.
Adopted amendments to paragraph (2) clarify that the criminal violations considered under subsection (f)(2) include offenses pertaining to the financial industry or business of insurance under any state or federal law or any law of a foreign country or the Uniform Code of Military Justice. The amendments also add a non-inclusive list of five criminal violations specifically contemplated by the paragraph.
Adopted amendments to paragraph (4) add clarifying language and reorganize the offenses listed in the paragraph to track the numeric order of the Penal Code chapters and sections in which they are addressed. Amendments also insert references to additional offenses in the Penal Code for which the department may revoke, suspend, or refuse to issue or renew a license or authorization.
Finally, amendments add new paragraphs (5) - (8) to clarify that the crimes that the department considers in determining fitness for licensure or authorization include any offense described by the Code of Criminal Procedure Article 42A.054; sexually violent offenses as defined by Code of Criminal Procedure Article 62.001; any attempt or conspiracy to commit any offense listed in §1.502 as described by the Penal Code; and any offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense contains elements that are substantially similar to the elements of an offense listed under §1.502.
Section 1.502(f) - (h). Adopted amendments delete the former subsections (f) - (h) because the provisions in these subsections are addressed in adopted amendments to subsections (d) and (e).
Section 1.502(g). Former subsection (i) is redesignated as subsection (g). In addition, the word "shall" is replaced with "will."
Section 1.502(h). Former subsection (j) is redesignated as subsection (h). In addition, the word "shall" is replaced with "will."
Section 1.502(i). Former subsection (k) is redesignated as subsection (i).
The adoption also includes additional nonsubstantive text changes for style and grammar, for consistency with current department rule drafting preferences.
SUMMARY OF COMMENTS. The department did not receive any comments on the proposed amendments.
STATUTORY AUTHORITY. The commissioner adopts the amendments to 28 TAC §1.502 under Occupations Code §§53.021, 53.022, 53.023, and 53.025 and Insurance Code §36.001.
Occupations Code §53.021 states grounds on which 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.
Occupations Code §53.022 provides factors that a licensing authority must consider in determining whether a criminal conviction directly relates to the duties and responsibilities of a licensed occupation.
Occupations Code §53.023 provides additional factors that a licensing authority must consider in determining whether to take an action authorized by Occupations Code §53.021 if it determines that a criminal conviction directly relates to the duties and responsibilities of a licensed occupation.
Occupations Code §53.025 requires a licensing authority to issue guidelines relating to the practice of the licensing authority under Occupations Code Chapter 53. The guidelines must state the reasons a particular crime is considered to relate to a particular license and any other criterion that affects the decisions of the licensing authority.
Insurance Code §36.001 provides that the commissioner may adopt any rules necessary and appropriate to implement the powers and duties of the department under the Insurance Code and other laws of this state.
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 September 6, 2023.
TRD-202303246
Jessica Barta
General Counsel
Texas Department of Insurance
Effective date: September 26, 2023
Proposal publication date: May 5, 2023
For further information, please call: (512) 676-6555