Oops, I Got a Misdemeanor… Will My License Survive?

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Welcome to Know your Regulator. The podcast that inspires you to engage. I am your host, simone Murphy. Today we’re tackling a question that a lot of professionals have can a misdemeanor conviction affect my ability to get or keep a professional license? To help us break it down, I’m joined by LaWanna Ackland, senior Associate at Bertolino Law Firm. Lawanna is an experienced professional licensed defense attorney who has helped countless professionals protect their careers when facing regulatory issues. Lawanna, thank you for being here today.

Speaker 2: 0:46

Oh, thank you for having me. I look forward to having this conversation with you.

Speaker 1: 0:50

I know it’s going to be a good one. I’m excited to get into it. So many people assume that really only felonies matter when it comes to licensing, but that is not always the case. So we’re going to talk about when and how a misdemeanor might impact your case, what licensing boards look for and how you can best navigate the situation, if this applies to you. So, LaWanna, we will start with a pretty broad question how do licensing boards generally factor criminal history, especially misdemeanors, into their decisions?

Speaker 2: 1:24

factor criminal history especially misdemeanors, into their decisions. That is a great question. So they are factored in because if you are convicted of a misdemeanor, then that underlying conduct that led to that conviction, it may be indicative of some qualities that the board will not want their license holders associated with. So for example and I want to use the Texas Department of Licensing and Regulation as our example for today, because it covers so many licenses that individuals have, from being a barber or a cosmetologist all up to being a podiatrist or a behavior analyst but the application is the same. So under the Texas Occupations Code, chapter 23, which is the code that guides licensing authorities on how to navigate whether or not a misdemeanor is directly related to the roles and responsibilities of an occupation. So the licensing boards, they take those factors and they actually embed them into the rules they adopt. So when they’re looking at a misdemeanor and how it may relate to the occupation, they’re looking at the conduct itself, what the charge was and whether or not it actually connects.

Speaker 2: 2:53

So, for example, if you do have a barber’s license and then you have a conviction for DWI or DUI, then they’re looking at whether or not that is associated with the purpose of that license, which is to service individuals in that industry. So with that, of course, an element of DUI or DWIs is, you know, integrity may be an issue if you have a substance problem. Typically that can lead to those types of offenses. And the board wants to know whether or not you exhibit a behavior pattern that you will engage in that when you’re dealing with clients that you’re servicing or when you’re servicing the public at large. So that’s really what the board wants to ascertain whether or not you possess the qualities of an individual that should hold that license, will you engage in conduct that will essentially harm the public?

Speaker 1: 4:00

Yeah, it sounds like, while misdemeanors may not be as serious as felonies, it’s still raising a lot of red flags for the boards when they’re making these decisions, especially, like you said, if they see that connection between the offense and then the responsibilities of the type of profession. I imagine it really does come down to public trust and safety and being able to trust this license holder with keeping the public safe. Oh, absolutely.

Speaker 2: 4:29

That’s. What the boards are tasked to do is to protect the public from harm and from bad actors that may be license holders, and one of the ways they ascertain whether or not you should hold a license is if you have a criminal history and whether or not there is a pattern or practice of behavior that says, hey, this individual, they may engage in some behavior that may harm this individual if we give them a license. So that’s why they really look at what has happened, what was the offense and whether or not it’s a direct connection with the roles and responsibilities of the license holder and what they are tasked with doing with that license.

Speaker 1: 5:15

Yeah, yeah, and I would say I think we both know that not all misdemeanors are treated equally. Can you walk us through how different types of offenses, different types of misdemeanors may impact a licensing decision?

Speaker 2: 5:33

Absolutely so. I believe that, no matter which board it is, we can boil down the most serious convictions to about four categories. One, an offense that involves dishonesty as an essential element of that offense, like theft, illegal use of a credit card, those types of offenses. Two, offenses that involve moral turpitude, meaning that you’ve engaged in something that goes against social morals, such as, like the domestic violence, simple assault If you have a lover’s quarrel and the police are called and you are arrested and you are indicted for a simple assault, that can very well affect your ability to get a license. Also, misdemeanors for DWIs and DUIs. So any misdemeanors that involve driving while intoxicated, driving under the influence. Often boards say that may look like you lack integrity to carry a license with our board.

Speaker 2: 6:43

And finally, possession possession of marijuana, possession of illicit substances, even for just the intent to use. If you are convicted of that at the misdemeanor level, that may be a red flag for a board to ascertain whether or not you should hold a license. And for the same reasons we’ve discussed before all of those convictions, there was conduct that led to it and that conduct may be indicative of qualities that the board may feel if we give you a license, this may actually be a harm to the public and that makes sense. Like you said, a a fraud related misdemeanor may be a bigger issue for a financial professional, whereas have to earn the trust of the community at large as well as the financial community that if you are convicted of a DUI or DWI, that shows a lack of integrity to hold a license. So they do take that into consideration as to whether or not you either keep your license or if they will give you a license.

Speaker 2: 8:19

Also, too, a lot of boards have reporting obligations. So if you are convicted or if you do receive charges on a particular offense, then you have an obligation to report it to your board. It’s typically within 30 days. So with their reporting they take all of that into consideration as to whether or not you should keep your license or if you’re applying for an initial license. If you have that criminal history, it can very well affect your ability to get a license if there aren’t certain factors in place that you can show that you are an individual that should hold this license, although you do have this history.

Speaker 1: 9:01

Interesting, that is really interesting to know that the boards can write that kind of into their rules so that every applicant or every, you know license holder is subject to follow that. So that’s really good to know and really think that’s big, a big nugget of information for our listeners to know those deadlines and kind of what to look for. Are there any other boards that you know of that have that written into their rules, like the Public Accountancy Board?

Speaker 2: 9:35

Yeah, oh, absolutely so, the Texas Department of Licensing and Regulation. They also have it embedded in their rules that they’re going to follow the specific factors and they list on their website what offenses next to each of the licenses that they carry Again, those four different categories. If you go on their website you will see. You could just pull up, like, for example, for a cosmetologist. It will list if you’ve been convicted of theft.

Speaker 2: 10:09

If you’ve been convicted of some sort of misdemeanor that is related to fraud or dishonesty, then you may not be able to service a client because you’re dealing with money, so you’re somewhat a fiduciary as well. So if you’ve been convicted, you may not be fit to hold a license. As a matter of fact, in Texas Occupations Code, chapter 51, it actually says within the code that they have the authorization to ascertain that this particular misdemeanor conviction means that you’re not fit to hold a license. So that list they have on their website they’re telling you up front if you’ve been convicted of this, more than likely you’re not fit to have a license with our board license with our board.

Speaker 1: 11:06

That’s really really good for applicants and you know people who are considering having a licensed profession you know to know and to look at. You had mentioned previously that the boards are looking for patterns of behavior. So if someone has multiple, even minor offenses, even if they aren’t directly related to their profession, that could indicate a concern for the board. Is what you’re saying?

Speaker 2: 11:30

Absolutely so. I’m glad that you mentioned that because with some boards a deferred adjudication equates to a conviction. So if you had a deferred adjudication and that misdemeanor conviction was dismissed later, it can still have an impact on your ability to get a license. So how does that tie into patterns and practices of your behavior If you have several deferred adjudications?

Speaker 2: 12:04

Your behavior, if you have several deferred adjudications or you have these arrests or you have these convictions, especially if they’ve happened in a certain span of time and they’ve happened within, like the last five years, that may signal to the board that this individual has some underlying conduct that may not be fit. That person may not be fit to hold a license. Like, for example, let’s say you’ve had a DWI, you had a simple assault and they all deferred and you finished those out and they were dismissed. But then it’s that underlying conduct that comes with that. Why does this person, why has this person had multiple offenses? Is this person fit? Does that behavior demonstrate that this person is fit to carry this license? So that’s what license holders should really look at is that pattern of practice as to whether or not they are ready and fit to hold a license?

Speaker 2: 13:05

Also with the Texas Department of Licensing and Regulation you can actually get an eligibility letter For $10,. You can fill out a form and they can look at your criminal history and they can tell you prior to applying whether or not, more than likely, you’re eligible to receive a license. So I would suggest that if you do have prior convictions or deferred adjudications, that if you’re going for a license that’s under that particular board, get that eligibility as well, just to make sure that they will give you a license based on your criminal history.

Speaker 1: 13:44

Oh, yeah, I mean, that’s a money saver right there. Ten dollars, yeah, go and go and get that, just to make sure that you are. You’re good to go, and I’m really glad that you brought up that point, because I think there’s often a lot of misconceptions when it comes to deferred adjudication and how that kind of affects you down the line. So that’s really good for our viewers to know. Hey, this is something that they’re looking at and they consider that when they’re making these decisions. We also mentioned time. If a misdemeanor happened, say like 10 years ago versus a year ago, how does the board factor time into their decisions?

Speaker 2: 14:27

Great question. So I’ve mentioned the Texas Occupations Code, chapter 53, before and that’s where those factors are listed as to whether or not this individual is fit to have a license. And two of those factors are the age you were when it happened and how much time has essentially passed since that incident has occurred. So with that, the further back or the further away the incident is from when you’re applying for the license is also it helps. And two, age helps as well, because you know board members are people too. Boards are employed by individuals and they understand you may do things in 20 and 21 that you may not do at 30. And especially if the last incident was 5, 17 years ago, you’ve had time to evolve and grow. As a matter of fact, you may be able to show that through recommendation letters. That can really sure up. Yes, I have a criminal history, but this is how I’ve rehabilitated myself since that offense occurred.

Speaker 1: 15:40

Yeah, yeah, I think there’s some jokes going around on the internet about frontal lobes becoming fully developed, and so it’s kind of like yeah, you know, I think sometimes frontal lobes don’t develop until 25, 27, something like that. So, yeah, that’s good, really good to know, I think, just for anyone who’s listening, that that that is something that the board’s taken to consideration. I think another big question that people may have is about disclosing this information, and you know essentially being really vulnerable with the board. If someone has a misdemeanor, should they always disclose it on their applications.

Speaker 2: 16:23

So you definitely want to disclose that on initial application because more than likely they’re going to ask. And if you are renewing a license, more than likely you will be asked have you had any convictions since the last time you renewed? And if you don’t answer that truthfully then you can have disciplinary action based on a material misrepresentation on an application. I know that’s how the rules are written for the Texas Department of Insurance. So, yes, when in doubt, always disclose. And my personal belief and legal opinion is that if you’re honest with the board up front, it just shows that you do have that integrity. So it doesn’t hurt to disclose, even if the rules doesn’t. They don’t specifically state that you have to Like. For example, with the Texas Department of Insurance we talked about those obligations to report under their rules. You have to report felonies, but not necessarily misdemeanors. But if you do have misdemeanors, what are likely when you, when your license comes up for renewal, they’re going to ask you. So you might as well get ahead of it and just be transparent with the board.

Speaker 1: 17:37

Yeah, no, absolutely. I think that’s a really big thing for our viewers, any applicants, any license holders out there who are preparing to renew that, that omitting information and not that integrity and that character that they’re looking for for the license holders to display. It’s super important and honesty is always the best policy, right you really? The other situation that you’re looking at is opening a door to lie and then potentially continuing to get deeper and deeper and deeper into that lie lies on top of lies. You know you, um, that’s, that’s not a situation you want to find yourself in.

Speaker 2: 18:27

I can imagine absolutely, absolutely, um, and I just think, yeah, my supporters should remember the whole purpose of a board is to protect the public from what they would perceive as bad actors. So if you don’t disclose on the application, if you’re not forthcoming, then, like you said, that kind of plays right into that, which can have an adverse impact on your ability to either obtain a license or to keep the license you’ve already been granted.

Speaker 1: 18:59

Yeah, yeah, absolutely Well, Luana. What are some of the most common mistakes that you see professionals make when they are dealing with a past misdemeanor? Are you seeing a lot of dishonesty, or is it more maybe just not understanding the process of how things work?

Speaker 2: 19:29

So what.

Speaker 2: 19:29

I’ve seen is that individuals may just not understand the call of the question on a renewal application or an initial application, and they need help understanding what’s being asked of them so they don’t materially misrepresent any factors when it comes down to their criminal history. Also, too, something I’ve seen is individuals not understanding the rules regarding obligations to report for my current license holders. So if you do have a license, it’s very important that you understand the rules regarding reporting any sort of conviction with misdemeanor so they can make their decision as to whether or not there should be some action taken on your license. Because when you don’t do that, oftentimes you have turned in your fingerprints to the board and they get that information real time. So that’s another reason you will want to be forthcoming, because the board will find out.

Speaker 2: 20:27

I know with the Texas Education Agency they get that information real time. You have a certificate to teach K through 12 and you’ve been arrested. They get that information real time and a lot of boards they also get that information. So it’s just better to abide by the reporting obligations if there are any. Also, too, when it comes down to filing for the initial application, like with TDLR, if you have the opportunity to get the eligibility letter, do that before filing the application. But if you don’t, just make sure you contact someone like me, a lawyer, who can navigate you through those questions so you can give the correct answers and give yourself the best opportunity to obtain that license.

Speaker 1: 21:18

So it really sounds like you know. The best approach is just to be totally honest and ask for help if you need it. Make sure that you understand the process that you’re entering into and what each you know. If there’s a word that you don’t know what it means ask for help, I think that’s really a big, big piece is. There’s a lot of legal jargon, misconceptions, and you, as a applicant or as a license holder, will want to make sure that you totally understand that. And if you don’t reach out to like Luana said, an experienced attorney just like her, who deals with these types of cases day in and day out, luana, for someone who’s listening right now and is worried that a past misdemeanor might affect their career and is worried that a past misdemeanor- might affect their career.

Speaker 2: 22:05

What would be your advice to them? The first thing you should do is probably contact an attorney so they can navigate you through it. But before you even contact an attorney, you can even probably reach out to the board and to the licensing department and get some information on what they’re looking for. I know for my clients I’ve been told by boards when in doubt, disclose. So if you have any doubts, definitely err on the side of caution and disclose and disclose. But if you don’t understand something, if by reading the application it’s just too confusing.

Speaker 2: 22:52

I’m just going to go back to my initial advice Call an attorney so they can walk you through the application process, because attorneys have more information than just the four corners of that application. They understand the processes and what these boards are looking for in terms of an answer so they can really navigate through, so you can have the best opportunity to obtain that license.

Speaker 1: 23:16

Yeah, that’s great advice. So consulting an attorney, knowing the specific policies, like we had mentioned a little bit earlier, kind of being prepared with those good references and, you know, demonstrating that change and good character can really help strengthen a case. Thank you so much for being here with us this afternoon and it’s been a really insightful discussion. I think our viewers have a lot of good takeaways.

Speaker 2: 23:43

Oh, thank you for having me, and I hope that I’ve said something that would stir a license holder in the right direction.

Speaker 1: 23:52

Absolutely, and thank you. I mean we mentioned some really great resources too. I kind of want to circle back on that for just a moment. That you can check out these agency websites. They have these lists of infract. That you can check out these agency websites they have these, you know. Submit a preliminary report or get some information before you go and you fill out that application. Absolutely try and take advantage of that resource. For those listening, please remember a misdemeanor does not have to be the end of your career, but how you handle it can really make all the difference. If you’re facing a licensing issue and you need guidance, please consult with an attorney to learn about your options. Be sure to subscribe to Know your Regulator for more episodes like this, where we break down the legal and regulatory challenges that professionals face, and until next time, stay inspired and continue engaging with your regulatory agency. Thanks, lj.

Speaker 2: 25:02

Thank you. Thank you for having me.

Speaker 1: 25:05

Know your Regulator. The podcast that inspires you to engage.