TDLR Misses a Step – The Commission’s Failure to Publish Multiple Criminal Conviction Guidelines

In a recent case, we discovered something rather interesting – a series of failures to publish criminal conviction guidelines by the Texas Commission of Licensing and Regulation. While this discovery may not sound earth-shattering, it indicates that the criminal conviction guidelines, which have been applied to a number of licensed professions, were not issued in compliance with the Texas Occupations Code. In order to explain this issue and its significance, a brief background on the adoption and issuance of criminal conviction guidelines is necessary.

Chapter 53 of the Texas Occupations Code (the “Occupations Code”) sets forth the requirements for a state licensing authority to enact guidelines relating to the practice of the licensing authority in the state. Specifically, the relevant portion of the Occupations Code state: 

“Each licensing authority shall issue guidelines relating to the practice of the licensing authority under this chapter.  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.”

Tex. Occ. Code § 53.025(a) (Westlaw 2018).

§ 53.025(b) continues by describing the adoption procedure set forth by the legislature.  That process requires the licensing agency to provide public notice of any guidelines it adopts by publication in writing.  Specifically, the Occupations Code states that “[a] state licensing authority that issues guidelines under this section shall file the guidelines with the secretary of state for publication in the Texas Register.”  Thus, a state licensing agency must not only adopt criminal conviction guidelines, but also publish (or “issue”) those guidelines (including listing the “particular crime” and a statement of how it relates to the “particular license”) in the Texas Register. This criminal conviction guideline adoption procedure was signed by the governor after being passed in 1999 by the 76th legislature.

The Commission adopted its first criminal conviction guidelines (the “Initial Guidelines”) in 2003.1 The Initial Guidelines, which listed certain particular crimes as well as general categories of other crimes, listed the occupations regulated by the Department at that time.12  Those occupations may be found in the table below: 

Initial Guidelines and Licensed Occupations – 2003 

Air Conditioning and Refrigeration Contractors Architectural Barriers: Registered Accessibility Specialists Auctioneers 
Boiler Inspectors Combative Sports Court Interpreters 
Electricians Elevators Inspectors Industrialized Housing and Buildings 
Personnel Employment Services Prepaid Legal Services Property Tax Consultants 
Service Contract Providers Staff Leasing Services Talent Agencies 
Temporary Common Worker Employer Vehicle Protection Product Warrantors Water Well Drillers 
Water Well Pump Installers Weather Modification 

Through the Initial Guidelines, the Commission established (i) which licenses were governed by the Initial Guidelines; (ii) general categories of crimes that were deemed to fit within the guidelines; and (iii) how the crimes listed in the Initial Guidelines related to each license. As can be seen from the table above, the licensed occupations of towing and vehicle storage services were not included in the Initial Guidelines.

The Commission later published a series of public notice “updates” in the Texas Register that stated the Commission had adopted criminal conviction guidelines for various new licenses.  Although these updates were published in the Texas Register, none of these updates complied with the Occupations Code’s criminal conviction guideline adoption procedures.  Specifically, none of these “updates” listed any particular crime or contained a statement of how such crime related to the particular licenses.1  A table listing these updates, the dates of such updates, and their failure to comply with § 53.025 of the Occupations Code may be found below.  The table below also contains the date of the updates’ publication in the Texas Register: 

Criminal Conviction Guideline Updates (without publication of crimes) 

License Type Date of Edition 
Cosmetology, Barbers (Update) April 13, 2007 
Towing and Storage (Update) April 18, 2008 
Property Tax Professionals (Update) November 20, 2009 
Property Tax Consultants (Update) December 11, 2009 
Polygraph Examiners and Trainees; Identity Recovery Service Contract Provider; and Used Automotive Parts Recyclers and Employees (Update).  January 15, 2010 
Licensed Dog and Cat Breeders October 26, 2012 

As can be seen from a review of the Texas Register, each of the updates listed above failed to comply with § 53.025 of the Occupations Code.  These updates do not contain (i) a listing of any particular criminal offense; (ii) a statement of how any particular criminal offense related to a particular license (including sub-classes of licenses); or (iii) any publication of the actual criminal conviction guidelines that the Commission adopted. Instead these updates contained only a statement that guidelines had been adopted, an email address where the new guidelines could purportedly be obtained, and a reference to the home page of the website operated by the Department.

In 2016, the Commission resumed publishing its criminal conviction guidelines in the format it initially used in 2003.  Rather than simply posting a public notice that the Commission had “updated” the guidelines without posting the guidelines, the Commission not only gave notice of the adoption of guidelines but also published the specific guidelines (listing crimes, licenses, and a relational statement between the crime and the occupational license) in the Texas Register.  This new policy resulted in the adoption of the criminal conviction guidelines for Driver and Traffic Safety Education on April 22, 2016, Speech Language Pathologist and Audiologists (published July 29, 2016), Hearing Instrument Fitters and Dispensers (published July 29, 2016), Athletic Trainers (published July 29, 2016), Orthotics and Prosthetics (published July 29, 2016), Dietitians (published November 4, 2016),29 Midwives (published November 4, 2016), Dietitians (republished to correct errors on November 25, 2016), Dyslexia Therapists and Practitioners on January 1, 2018, Registered Sanitarians on August 10, 2018, Code Enforcement Officers on August 10, 2018, Podiatry on September 28, 2018, and Massage Therapists on September 28, 2018. In each of the publications described in this paragraph, the Commission fulfilled its obligations under Occupations Code § 53.025(b) by publishing (or “issuing”) the text of the guidelines and listing particular crimes and how they relate to a particular license, just as it did in the Initial Guidelines from 2003.

The Initial Guidelines and the 2016-present guidelines are a stark contrast to the “public notices” the Commission issued between 2003 and 2015. The correctly published guidelines are longer, far more detailed, and list specific offenses that apply to the specific licenses. They also demonstrate that the Commission (or the party responsible for Occupations Code compliance) realized that criminal conviction guidelines were not properly published between 2004 and 2015 or, at a minimum, that a significant change in the adoption procedure was necessary.  The Initial Guidelines and the later-adopted guidelines demonstrate the Commission’s attempt to comply with Occupations Code § 53.025(b). Notwithstanding this clear change in the Commission’s course of conduct, the criminal conviction guidelines governing Cosmetologists and Barber, Tow Operators and Vehicle Storage Facility Employees, Property Tax Professionals, Property Tax Consultants, Polygraph Examiners and Trainees, Recovery Service Contract Providers, Used Automotive Parts Recyclers and Employees, and Licensed Dog and Cat Breeders remain in their defective and legally noncompliant states. 

The question of why the Commission failed to issue the purported criminal conviction guidelines between 2003 and 2015 remains unanswered to date. Currently, there is a question as to whether these guidelines will withstand a judicial challenge in the face of such a clear violation of the Occupations Code’s issuance requirements. A more important issue, however, is whether the guidelines that are currently listed on TDLR’s website are, in fact, accurate. Without publication of the originally adopted guidelines in the Texas Register, there is no independent means of verifying the contents of the criminal conviction guidelines listed on TDLR’s website. Specifically, cross-referencing TDLR’s website to the Texas Register is impossible due to the lack of guideline issuance. Instead, licensees are forced to take it on faith that TDLR’s website (which, unlike the Texas register, is a dynamic medium that capable of alteration through a keystroke, much like this post) is a true and accurate reproduction of the guidelines adopted by the Commission.

Clearly, this situation needs immediate attention. The Commission’s failure to issue criminal conviction guidelines in the Texas Register forces licensees to rely exclusively on the information contained on TDLR’s website. It also prohibits licensees from verifying the language of the originally adopted guidelines. This amounts to little more than hiding the ball in violation of clear statutory requirements mandating publication. Such activity creates a “hidden playbook” – one that may be manipulated at will with no reasonable means of accountability, even when a system for such accountability is required by law.