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Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience:  I have 15 years experience in criminal litigation including several years as a felony prosecutor
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Would a DUI conviction 8-10 years ago prevent me from obtaining

Resolved Question:

Would a DUI conviction 8-10 years ago prevent me from obtaining a Texas license to operate an Elder/In Home Care Agency?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Joseph replied 4 years ago.

I'm a licensed attorney and I believe I can provide some assistance. However, I need a point clarified first....

 

Are you looking to obtain the license?

 

OR

 

Do you already have the license and you are now looking for employment?

 

Thanks!

Customer: replied 4 years ago.

I'm looking to obtain a license. I'm considering an elder care franchise but need to know if I would be ineligible for a license. Below is the statute that is referred to in the licensing requirements:

Texas Department of Aging and Disability Services
Criminal Convictions Barring Facility Licensure
Revision: 09-0

§99.1 Definitions

Expert:  Joseph replied 4 years ago.

Thank you for the additional information. There is no need to respond to this post, I'll be back when I have some answers for you.

 

Thank you for your patience.

Expert:  Joseph replied 4 years ago.

I researched the statute and I've got good news, your old DUI conviction is not a problem!

 

As you indicated, Chapter 99 deals with the Texas Department of Aging and Disability Service (DADS). Chapter 99.1 includes definitions and 99.2 discusses Convictions Barring Licensure.

 

Within 99.2, the statute lists convictions that "may" prevent you from obtaining a license to work in a facility providing care for the elderly. While it lists about 18 different offenses, DUI is NOT one of them. Additionally, even if it were listed, the statute indicates that a person "may" be denied a license. So, a person with a listed conviction could still argue for a license, perhaps based on the age of the conviction or that it was there only conviction.

 

Customer: replied 4 years ago.
Yes. I agree that the statute doesn't mention alcohol specifically but it does mention convictions related to "drugs, dangerous drugs, and controlled substances". Does alcohol fall into that category?
Expert:  Joseph replied 4 years ago.

The short answer is no. As to the long answer...

 

I think we can all agree that alcohol would not fall under the categories of "dangerous drug" or "controlled substance". That leaves "drugs" as the only possibility. While there are compelling reasons to consider alcohol a drug, I do not believe it applies here.

 

First, the Texas statutes dealing with drugs do not list alcohol. Additionally, it would have been quite easy for the legislature to add the word "alcohol" to the statute if they wanted it there. This simple addition would have made the statute clear and unambiguous on its face, as the legislature desires. Since it isn't there, the only logical conclusion is that they did NOT intend alcohol to be considered.

 

Also, assuming you read the entire list, you will surely agree that the listed charges are more serious than DUI; inducing gang membership, tampering with consumer products, leaving a child in a vehicle, stalking, dog fighting, compelling prostitution, to name a few.

 

And, even if I were incorrect, one could still argue that the "may deny" a license language still permits discretion. With the charge being relatively non-serious, just a misdemeanor, and so old, 8 to 10 years ago, I simply can't see you being denied over this.

 

Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience: I have 15 years experience in criminal litigation including several years as a felony prosecutor
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