Part 13. TEXAS COMMISSION ON FIRE PROTECTION
Chapter 403. CRIMINAL CONVICTIONS AND ELIGIBILITY FOR CERTIFICATION
The Texas Commission on Fire Protection (the Commission) proposes amendments to §403, Criminal Convictions and Eligibility for Certification, particularly the following chapters: §403.1, Purpose; §403.3, Scope; §403.11, Procedures for Suspension, Revocation, or Denial of a Certificate to Persons with Criminal Backgrounds. The purpose of these proposed amendments is to update and correct any discrepancies in language to the rules; to insert additional language clarifying convictions of a sexual nature, to correct grammar and punctuation, and to capitalize the letter "c" in the word "Commission".
Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal impact on state or local governments.
Jake Soteriou has also determined that for each year of the first five years the proposed amendments are in effect, there will be no public benefit anticipated as a result of enforcing the amendments. There are no additional costs of compliance for small or large businesses or individuals that are required to comply with these proposed amendments.
Comments regarding these proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register to Gary L. Warren, Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mailed to info@tcfp.state.tx.us. Comments will be reviewed and discussed at a future Commission meeting.
This amendment is proposed under Texas Government Code, §419.061, which provides the Commission with the authority to reject persons with criminal convictions to serve as fire protection personnel.
§403.1.Purpose.
(a) The purpose of this chapter is to establish guidelines
and criteria on the eligibility of persons with
a
criminal
conviction
[
convictions
] for a certificate
or
renewal of a certificate
issued by the Texas
Commission
[
commission
] on Fire Protection (the
Commission,
[
commission
]) and to establish procedures for suspension,
probation,
revocation,
or denial of a certificate held or applied for by persons with
a
criminal
conviction
[
convictions
] pursuant to Chapter 53, Texas Occupations Code.
(b) The duties and responsibilities of persons who
hold certifications issued by the
Commission,
[
commission
] each involve matters that directly relate to public safety,
specifically to the reduction of loss of life and property from fire.
Thus
,
conduct [
,
] involving the injury to a
person or the destruction of property by fire, relates directly to
the fitness of the individual to be fire protection personnel. Fire
protection personnel [
and volunteer fire fighters
] often
have access to areas not generally open to the public. The public
relies on the honesty, trustworthiness, and reliability of persons
certified by the
Commission
[
commission
]. Thus,
crimes involving moral turpitude, including
,
but not limited
to
,
fraud and dishonesty, are directly relevant. In addition,
the ability of such persons to function unimpaired by alcohol or the
illegal use of drugs, in dangerous
,
or potentially dangerous circumstances, including
,
but not limited to
,
the
operation of emergency vehicles is paramount
,
in light of the duty to protect the health and safety of the public.
§403.3.Scope.
(a) The guidelines established in this chapter apply
to a person who holds or applies for any certificate issued under
the
Commission's
[
commission's
] regulatory authority contained in Government Code, Chapter 419.
(b) When a person is charged with, or convicted of a crime of a sexual nature, the conviction of which would require the individual to be registered as a sex offender under Chapter 62 of the Code of Criminal Procedure; or
(c)
[
(b)
] When a person engages
in conduct that is an offense under Title 7 of the Texas Penal Code,
or a similar offense under the laws of the United States of America,
another state, or other jurisdiction, the person's conduct directly
relates to the competency and reliability of the person to assume
and discharge the responsibilities of fire protection personnel. Such
conduct includes, but is not limited to, intentional or knowing conduct,
without a legal privilege, that causes
,
or is intended to cause
,
a fire or explosion with the intent to injure
or kill any person or animal or to destroy or damage any property.
The
Commission
[
commission
] may consider the
person's conduct even though a final conviction has not occurred and may:
(1) deny to a person the opportunity to be examined for a certificate;
(2) deny the application for a certificate;
(3) grant the application for a new certificate with the condition that a probated suspension be placed on the newly granted certificate;
(4) refuse to renew a certificate;
(5) suspend, revoke or probate the suspension or revocation of an existing certificate; or
(6) limit the terms or practice of a certificate holder
to areas prescribed by the
Commission
[
commission
].
(d)
[
(c)
] When a person's criminal
conviction of a felony or misdemeanor directly relates to the duties
and responsibilities of the holder of a certificate issued by the
Commission
[
commission
], the
Commission
[
commission
] may:
(1) deny to a person the opportunity to be examined for a certificate;
(2) deny the application for a certificate;
(3) grant the application for a new certificate with the condition that a probated suspension be placed on the newly granted certificate;
(4) refuse to renew a certificate;
(5) suspend, revoke , or probate the suspension or revocation of an existing certificate; or
(6) limit the terms or practice of a certificate holder
to areas prescribed by the
Commission
[
commission
].
§403.11.Procedures for Suspension, Revocation, or Denial of a Certificate to Persons with Criminal Backgrounds.
(a) If the
Commission's
[
commission's
]
Standards Division (the division) proposes to suspend, revoke, limit,
or deny a certificate based on the criteria in this chapter, the division
shall notify the individual at his or her last known address as shown
in the
Commission's
[
commission's
] records,
by registered or certified mail. The notice of intended action shall
specify the facts or alleged conduct to warrant the intended action.
(b) If the proposed action is to limit, suspend, revoke,
or refuse to renew a current certificate, or deny an application for
a new certificate,
a written
[
the
] notice of
intended action shall comply with the preliminary notice requirements
of Government Code §2001.054(c). The individual may request,
in
writing,
an informal conference with the
Commission
[
commission
] staff in order to show compliance with all requirements
of law for the retention of the certificate, pursuant to Government
Code §2001.054(c).
A written
[
The
] request
for an informal staff conference must be submitted to the division
director no later than 15 days after the date of the notice of intended
action. If the informal staff conference does not result in an agreed
consent order, a formal hearing shall be conducted in accordance with
the Administrative Procedure Act, Government Code, Chapter 2001.
(c) If the individual does not request an informal staff conference or a formal hearing in writing within the time specified in this section, the individual is deemed to have waived the opportunity for a hearing, and the proposed action will be taken.
(d) If the
Commission
[
commission
]
limits, suspends, revokes, or denies a certificate under this chapter,
the executive director shall give the person written notice:
(1) of the reasons for the decision;
(2) that the person may appeal the decision of the
executive director to the
Commission
[
commission
]
in accordance with §401.63 of this title (relating to Appeals
to the
Commission
[
commission
]) within 30 days
from the date the decision of the executive director is final and
appealable;
(3) that the person, after exhausting administrative
appeals, may file an action in a district court of Travis County,
Texas, for judicial review of the evidence presented to the
Commission
[
commission
] and its decision
;
and that
such petition must be filed with the court no later than 30 days after
the
Commission's
[
commission's
] action is final
and appealable.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 29, 2007.
TRD-200702758
Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 936-3838