Now that DSHS is checking every initial and renewal applicant for criminal history, we're finding that many people don't understand that DSHS considers and reviews deferred adjudications just as seriously as criminal convictions.
By Donald Jansky, JD
On the application form for EMS certification or licensure, DSHS asks the following question:
Have you ever been given deferred adjudication or been convicted of a felony or misdemeanor?
How did you answer that question? Did you think that a deferred adjudication is automatically removed from your record once you complete the court's requirements? The fact is that a deferred adjudication stays on your record and EMS rules require that you report it.
And how you answer the question on the application could make the difference between being granted or denied certification/licensure. Just because the underlying criminal charge has been dismissed, you still need to answer yes.
DSHS asks about criminal history to determine if an applicant has ever committed a felony or misdemeanor that might relate to the duties of EMS. If you have a criminal history, DSHS will probably send a criminal history evaluation packet for you to complete so DSHS can investigate your criminal history and general background. Information gathered will be evaluated using the criteria, outlined in Chapter 53 of the Texas Occupations Code. (See Criteria box below.)
What exactly does deferred adjudication mean?
Deferred adjudication is a legal proceeding where the judge may, after receiving a plea of guilt or plea of nolo contendre (where a defendant neither admits nor denies guilt), hearing the evidence, and finding that the evidence substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt. The judge then places the defendant on community supervision, which is similar to probation. This proceeding, done in open court, is recorded by a judge's order that becomes a public record. More detail about Deferred Adjudication can be found in Chapter 42 of the Texas Code of Criminal Procedure, Article 42.12 , Section 5.
Community supervision lasts for a specified length of time and carries with it a number of requirements to complete. After successful completion of the community supervision and other requirements, the court then usually dismisses the underlying criminal charge and discharges the person from community supervision requirements. Because of this, it's a common misconception that deferred adjudication does not become a part of a person's criminal record. Although the underlying charge might be dismissed, the court does not order the expunction (erasure) of any of these records: the deferred adjudication proceedings; the underlying charge that was dismissed; or the arrest tied to that charge. Both the dismissal order and the initial court order granting deferred adjudication generally remain public records and reportable to the Texas Department of Public Safety (DPS).
Expunction, according to the Texas Code of Criminal Procedure, mainly relates only to the process of expunging (destroying) a person's arrest record. Chapter 55 of the Texas Code of Criminal Procedure outlines the strict qualifications for expunction, and the subsequent procedures to carry it out. Generally, expunction is a time-consuming legal process that usually requires hiring a lawyer. Again, it does not automatically happen whenever the judge dismisses the underlying criminal charge that gave rise to a deferred adjudication.
So, unless you received an order expunging your arrest record, both the fact you were arrested and received a deferred adjudication will most likely be a part of the criminal history record information, compiled by DPS. This history is shared with the DSHS, pursuant to Chapter 411 of the Texas Government Code, Section 411.110.
Criteria used to evaluate the criminal background
So you had to check yes to answer the question about criminal history. Generally speaking, the fact that someone committed a crime, got arrested, and/or received a deferred adjudication or a criminal conviction is not a reason, in and of itself, to automatically deny someone's application for certification or licensure, or to suspend or revoke one's EMS certificate or license.
Even though the EMS rule dealing with "Persons With Criminal Backgrounds" cited at 25 TAC 157.37(a) states that DSHS "may deny, decertify, revoke, and/or suspend a certificate or license to persons who have committed a felony or misdemeanor…", (emphasis added) both subsections 157.37(a) and (d) further note that the Department "will consider (and) apply" the criteria listed in Chapter 53 of the Texas Occupations Code, Sections 53.022 and 53.023 in evaluating whether the crime relates to the duties and responsibilities connected to an EMS certification or license. (For a complete list of all the determining factors, see Criteria box)
DSHS checks every EMS applicant's criminal history. And in doing a criminal background check, DSHS not only relies upon the DPS criminal history information bank, but also on the honesty of the applicant. Such honesty is not only expected, but is a requirement in the EMS rules. Falsifying an application is reason for denial or revocation of certification or licensure.
25 TAC 157.36(c), entitled: "Criteria for denial of certification, or licensure", notes "that a certificate or license may be denied for, but not limited to, the following reasons: . . . (5) falsifying any Texas application for certification or licensure or falsifying an application or documentation used to acquire registration, certification or licensure; . . ."
25 TAC 157.36 (b), entitled: "Nonemergency suspension, decertification and revocation of a certificant or paramedic licensee", notes "that the Department may suspend or decertify an EMS certificate-holder or suspend or revoke a licensed paramedic for, but not limited to, the following reasons: . . . (15) falsifying or altering, or assisting another in falsifying or altering, any department application, EMS certificate or license; or using or possessing any such altered certificate or license; . . ."
And even though at one time you may have truthfully answered these questions on the EMS application form and provided information about your criminal history, EMS rules require you to continue to answer the questions truthfully and to continue to provide criminal history information again on every other subsequent EMS renewal application form.
Donald Jansky is an assistant general counsel at DSHS.
Why does DSHS ask about criminal history?
The EMS rule dealing with the Certification or Licensure of Persons With Criminal Backgrounds says that DSHS "may deny, decertify, revoke, and/or suspend a certificate or license to persons who have committed a felony or misdemeanor…". This rule is in Title 25 of the Texas Administrative Code (TAC), Chapter 157, Section 157.37(a) and can be found online under TAC Viewer at www.sos.state.tx.us/tac/.
Also, 25 TAC 157.36(c), entitled: "Criteria for denial of certification, or licensure", notes that a certificate or license may be denied for, but not limited to, the following reasons: . . .
(3) conviction of a crime which directly relates to the profession of EMS personnel as described in §157.37 of this title; . . .
(8) making a plea of no contest in any criminal action which relates or could relate to the candidate's ability to carry out EMS duties;
(9) receiving a deferred adjudication in a criminal action which relates or could relate to the candidate's ability to carry out EMS duties; . . .
Additionally, 25 TAC 157.36(b), entitled: "Nonemergency suspension, decertification and revocation of a certificant or paramedic licensee" states that the Department may suspend or decertify an EMS certificate-holder or suspend or revoke a licensed paramedic for, but not limited to, the following reasons: . .
(1) violating any provision of . . . Federal, State, or local laws, rules or regulations affecting, but not limited to, the practice of EMS;
(2) any conduct which is criminal in nature and/or any conduct which is in violation of any criminal, civil and/or administrative code or statute; . . .
(23) having been convicted of any misdemeanor or felony . . .
(29) engaging in any conduct listed in §157.37(a)-(c) of this title whether or not resulting in a conviction.
Criteria for evaluation of criminal history
The evaluating criteria of the Texas Occupations Code, are as follows:
Section 53.022, entitled, FACTORS IN DETERMINING WHETHER CONVICTION RELATE TO OCCUPATION states: In determining whether
a criminal conviction directly relates to an occupation, the licensing
authority shall consider:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;
(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and
(4) the relationship of the crime to the ability, capacity, or fitness
required to perform the duties and discharge the responsibilities of
the licensed occupation.
Section 53.023, entitled, " ADDITIONAL FACTORS FOR LICENSING AUTHORITY TO CONSIDER" states:
(a) In determining the fitness to perform the duties and discharge the responsibilities of the licensed occupation of a person who has been convicted of a crime, the licensing authority shall consider, in addition to the factors listed in Section 53.022:
(1) the extent and nature of the person's past criminal activity;
(2) the age of the person when the crime was committed;
(3) the amount of time that has elapsed since the person's last
(4) the conduct and work activity of the person before and after the
(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and
(6) other evidence of the person's fitness, including letters of
(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;
(B) the sheriff or chief of police in the community where the
person resides; and
(C) any other person in contact with the convicted person.
(b) The applicant has the responsibility, to the extent possible, to obtain and provide to the licensing authority the recommendations of the prosecution, law enforcement, and correctional authorities as required by Subsection (a)(6).
(c) In addition to fulfilling the requirements of Subsection (b), the applicant shall furnish proof in the form required by the licensing authority that the applicant has:
(1) maintained a record of steady employment;
(2) supported the applicant's dependents;
(3) maintained a record of good conduct; and
(4) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted.
See Chapter 42 of the Texas Code of Criminal Procedure, Article 42.12, Section 5, entitled Deferred Adjudication; Community Supervision
Chapter 411 of the Texas Government Code, Section 411.110:
The Texas Code of Criminal Procedure