14 November 2023

Collateral Damage II

     In 1992, the McAllen police arrested Linda in a prostitution sting. By that time, she'd been living on the streets for four years. Linda went to court, took her conviction, and slowly began to clean up her life. She moved to a halfway house. Then Linda started taking classes to learn a trade. She received financial assistance from the Texas government to help finance her education. In 1996, Linda became a registered massage therapist. She worked in the field for the next quarter century, renewing her license every two years. 

    Then, in 2020, Texas took her license away.    

    Several weeks back, I began a conversation about the collateral consequences of crime. Citizens routinely think and hear about the effects of an offense on the crime victims. The earlier blog focused on the person convicted of a criminal offense. The topic seemed like something crime fiction writers might consider. Most collateral consequences are often not discussed as part of plea bargain negotiations. A defendant may not be aware. They accept a plea deal, serve the sentence, and, in their mind, pay the debt to society. Later, like Linda, unforeseen after-effects arise. Suppose, as a writer, that your goal is to craft a villain with sympathetic motivations. If you want a character whose outrage feels justified, the collateral consequences of crime might be a place to look. I hope to continue that conversation today. 

    (As in the earlier column, I focus almost exclusively on Texas law. That's my sandbox. The specifics of your jurisdiction may vary.)

    The Texas Department of Licensing and Regulation (TDLR) is the state agency primarily responsible for overseeing businesses, trades, and occupations regulated by the state. Some jobs, such as plumbers, lawyers, police officers, EMS, doctors, pharmacists, and veterinarians, have separate regulating agencies. For many of the rest, the TDLR is the umbrella organization responsible for licensing within their occupations. 

    Some of the licensed trades in this state include air conditioning repair, auctioneers, barbers, electricians, massage therapists, mold remediators, notary publics, pawn shop employees, and tow truck operators. One state comptroller's report identified 774 occupation-related licenses overseen by 47 state agencies. 

    In Texas, a license holder's license shall be revoked if the conviction results in felony incarceration. It may be withdrawn, or a person may be denied the opportunity to obtain a license if the offense is directly related to the duties and responsibilities of the occupation or if the offense falls within the category of crimes that Texas has deemed especially bad. There is a list of these bad offenses in the Code of Criminal Procedure, Sec. 42A.054. Most practitioners call them the 3(g) offenses. (Section 3(g) was where one used to be able to find the list before the legislature renumbered everything, and 3(g) is easier to say than 42A.054. 

    The 3(g) list includes most of the crimes you'd think are bad, like murder and sexual assault. A few, like aggravated assault with a deadly weapon, are fact-specific.) 

    As with other states, Texas has different types of probation. Some were initially intended to enable the defendant to avoid the consequences of a criminal conviction upon successfully completing the supervision. Over time, many of those benefits have eroded. The TDLR may revoke, deny, or refuse to renew a license if the "non-conviction" activity renders the person unfit for the license. 

    In determining whether the conviction directly relates to an occupation, the statute lists four factors:

    1. The nature and seriousness of the crime.

    2. The relationship of the crime to the purposes for requiring a license. 

    3. The extent to which a license might offer an opportunity to engage in further        criminal activity. 

    4. The relationship of the crime to the ability or fitness to perform the duties of the     licensed occupation. 

    While items 2-4 draw some connection between the crime and the license, #1 is a giant loophole providing unfettered discretion to the overseeing agency. 

    Some licensing rules allow for the consideration of mitigating factors. Others in this state do not. We could discuss whether there should be zero tolerance for sex crimes in the legitimate massage business. As a society, we have become more attuned to issues of human trafficking and exploitation. We might debate whether we should consider the defendant's circumstances before denying a license. But those are topics for another day and a different blog. 

    Linda and others received their licenses because of an oversight by the regulatory agency. Then, at age 62, her income stream was pulled out from under her. The agency, alerted to the conviction, had no discretion. Bureaucracy may have crushed common sense. How might this defendant respond? It is easy for foresee anger and desperation. 

    Another reader might dismiss the concerns for Linda's livelihood. The saying goes, "Don't do the crime if you can't do the time." Linda, they might argue, should be grateful that she evaded the consequences for so long. 

    And in that debate, you may have created a complex villain. 

    (I would like to recognize Eric Dexheimer and his reporting in the Houston Chronicle for the specifics in this blog.)

    Until next time. 



  1. Already I'm on Linda's side. In middle school, we were taught that once a criminal had served his (her) sentence, they could return to society essentially forgiven. Oh how naïve. From denials of voting rights, passports, public benefits, and apparently licensing, punishment continues long after the criminal phase concludes.

    Has Linda any recourse to appeal?

    1. Only in the court of public opinion. Legislators have introduced bills to allow her license decisions to be discretionary. To this point, they have not passed.

  2. I suspect that Linda cannot afford a lawyer to represent her in court, in which case she would need to find a Legal Aid organization to take her case for free.

  3. Thanks for joining the conversation, R.T.

  4. One of the problems, of course, is that Texas is a very "tough on crime" state: so is South Dakota. Though we had a situation up here, recently, where a Senator came in the visit the Lifer's Group. Now he had sponsored, rammed through, and passed a bill that restricted parole severely. But after talking the lifers, he said, later, "If I had known what it's really like here, I'd never have sponsored that bill." Sigh...


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