      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-11-00316-CV



                  Texas Department of Licensing and Regulation, Appellant

                                                 v.

                                    John Thompson, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
    NO. D-1-GN-09-004309, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The Texas Department of Licensing and Regulation (the Department) appeals the

district court’s judgment reversing its commission’s decision denying appellee John Thompson’s

application for a tow truck operator incident management license. For the reasons that follow, we

reverse the district court’s judgment.


                                          BACKGROUND

Licensing of Tow Truck Operators

               The Department is the state agency responsible for licensing tow truck operators.

Tex. Occ. Code § 2308.151; 16 Tex. Admin. Code § 86.207 (Tex. Dep’t of Licensing and

Regulation, Licensing Requirements—Towing Operator License); see also Tex. Occ. Code

§ 51.051(a) (“The [Department] is the primary state agency responsible for the oversight of

businesses, industries, general trades, and occupations that are regulated by the state and assigned
to the department by the legislature.”). The Department is governed by the Texas Commission of

Licensing and Regulation (the Commission). Tex. Occ. Code § 51.051(b); see id. § 51.001(1-a)

(defining “Commission”).

                Chapter 53 of the Occupations Code, titled “Consequences of Criminal Convictions,”

provides a framework for licensing authorities, such as the Department, to evaluate the eligibility of

license applicants who have criminal convictions. See id. §§ 53.001–.105. For purposes of this

appeal, a licensing authority may deny a license based upon the applicant’s conviction of “an offense

that directly relates to the duties and responsibilities of the licensed occupation.” Id. § 53.021(a)(1).

To determine “whether a criminal conviction directly relates to an occupation,” the licensing

authority must consider the following factors:


        (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.


Id. § 53.022.

                “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

also must consider the following factors in relevant part:

                                                   2
                (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 criminal
                           activity;

                (4)        the conduct and work activity of the person before and after the
                           criminal activity;

                (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
                           recommendation from:
                           ...

                           (C)    any other person in contact with the convicted person.


Id. § 53.023(a). An applicant also is required to furnish proof to the licensing authority that the

applicant has “maintained a record of steady employment” and “a record of good conduct.” Id.

§ 53.023(c)(1), (3).

                Further, the Department has adopted guidelines relating to its practice under

chapter 53. See id. § 53.025(a) (requiring licensing authorities to issue guidelines that “state the

reasons a particular crime is considered to relate to a particular license and any other criterion that

affects the decisions of the licensing authority”). With this regulatory framework in mind, we turn

to the parties’ dispute.




                                                     3
The Commission’s Denial of Thompson’s Application

                Thompson applied for a tow truck operator incident management license in 2008.

After Department staff proposed denying his application, he sought a hearing before the State Office

of Administrative Hearings (SOAH).

                The hearing before the administrative law judge (ALJ) occurred in June 2009.1 The

Department staff sought to deny Thompson’s application based upon criminal convictions from

1988. Thompson was court-martialed and convicted of sodomy with a child under the age of sixteen

and for assaulting his ex-wife.2 The staff urged that Thompson was not fit for licensure because of

the nature of the convictions and the short time since he was released from prison. Thompson was

sentenced to thirty years’ confinement but released from prison in November 2005 after serving over

seventeen years with good behavior, and his sentence was discharged. After his release from prison,

he was required to register as a sex offender. See Tex. Code Crim. Proc. art. 62.051 (sex offender

registration requirements). During his incarceration, he did not receive sex offender counseling.

                The staff also contended that Thompson’s criminal convictions were directly related

to the occupation of a tow truck operator. See Tex. Occ. Code §§ 53.021–.023. The Department’s

rationale for the direct relationship was that “tow truck operators have direct contact with members

of the general public, often in settings with no one else present, and at times, in secluded locations.”



       1
         According to pleadings filed by the parties with the district court, only a portion of the
administrative hearing was recorded. The relevant facts are not disputed.
        2
          Thompson was convicted of committing sodomy with a child under the age of 16 on
diverse occasions between September 15, 1984, and September 1, 1985, between November 25 and
December 6, 1985, and between June 1 and September 1, 1985. He also was convicted of striking
his ex-wife with his hands between August 1 and September 1, 1985.

                                                   4
An investigator with the Department testified at the hearing that “tow truck drivers are permitted to

work anywhere and come into contact with the public, including children in remote locations.”

               At the SOAH hearing, Thompson maintained that he did not commit the crimes that

formed the basis of the 1988 convictions and urged that he was fit to perform the duties and

responsibilities of a tow truck operator. He contended that his ex-wife falsely accused him of the

crimes against her and her seven and nine year old sons when they were going through a divorce.

Thompson was 22 years old at the time of the crimes. No evidence was presented at the hearing that

Thompson had committed any other crimes. During his incarceration, he received a college degree

and a certificate for completing training as an automotive mechanic. He was employed after he was

released from prison without incident, including working as a tow truck operator from April 2007

to September 2008. Thompson also submitted letters of recommendation from employers, clients,

a co-worker, and a family member.

               In her proposal for decision, the ALJ found that “[t]he Department had adopted

criminal conviction guidelines stating that crimes involving prohibited sexual conduct or children

as victims are considered to be directly related to tow truck operator licenses.” The ALJ, however,

recommended granting the license. She found that “Staff failed to prove by a preponderance of the

evidence that Mr. Thompson should not be licensed because of his criminal history” and that he was

“fit to perform the duties and discharge the responsibilities of a tow truck operator.” The ALJ

credited Thompson’s position that he did not commit the crimes as “evidence of integrity” and

Thompson’s efforts at self-improvement—receiving his college degree and training as an automotive




                                                 5
mechanic during his imprisonment and his employment without incident after his release—as

evidence of his fitness for licensure.

               In its decision, the Commission rejected the ALJ’s recommendation and denied

Thompson’s application for a license. The Commission concluded that the ALJ had failed to apply

the law properly. The Commission deleted the ALJ’s Finding of Fact No. 20 in its entirety and

changed Finding of Fact No. 19 to read:


       Due to the nature and seriousness of his offenses, and an apparent lack of
       rehabilitative effort, Mr. Thompson has not demonstrated that he can satisfactorily
       perform the duties and discharge the responsibilities of a tow truck operator.3




       3
          The ALJ’s findings of fact and conclusions of law that were deleted or modified stated in
relevant part:

       Finding of Fact No. 19: Mr. Thompson has demonstrated that he can satisfactorily
       perform the duties and discharge the responsibilities of a tow truck operator, despite
       his criminal background.

       Finding of Fact No. 20: The preponderant evidence shows that Mr. Thompson is
       not likely, in the future, to commit a crime similar to one of those of which he
       was convicted.

       Conclusion of Law No. 7: Staff failed to prove by a preponderance of evidence that
       Mr. Thompson should not be licensed because of his criminal history.

       Conclusion of Law No. 8: Based upon the above Findings of Fact and Conclusions
       of Law, Mr. Thompson is fit to perform the duties and discharge the responsibilities
       of a tow truck operator. Tex. Occ. Code § 53.022.

       Conclusion of Law No. 9: Based upon the above Findings of Fact and Conclusions
       of Law, Mr. Thompson’s application for a Tow Truck Operator Incident
       Management License should be granted.

                                                 6
The Commission also deleted the ALJ’s Conclusion of Law No. 7 and modified Conclusion of Law

Nos. 8 and 9 to read:


       Based upon the above Findings of Fact, Mr. Thompson is not fit to perform the duties
       and discharge the responsibilities of a tow truck operator. Tex. Occ. Code § 53.022.

       Based upon the above Findings of Fact and Conclusions of Law, Mr. Thompson’s
       application for a Tow Truck Operator Incident Management License should
       be denied.


Thompson filed a motion for rehearing, challenging the Commission’s decision to deny his license

application. The Commission denied the motion for rehearing by written decision.


Judicial Review

               Thompson sought judicial review of the Commission’s denial of his application. See

Tex. Gov’t Code § 2001.171; Tex. Occ. Code §§ 51.024, 53.052. After a hearing and briefing by

the parties, the district court reversed the Commission’s decision, concluding that “substantial rights

of the Plaintiff have been prejudiced because the administrative findings, inferences, conclusions,

or decisions were made through unlawful procedure.” This appeal followed.


                                            ANALYSIS

               In two issues on appeal, the Department urges that the district court should have

affirmed the Commission’s decision. The Department contends that the Commission’s decision was

supported by substantial evidence and that the Commission properly interpreted the Occupations

Code to require that fitness of a license applicant with criminal convictions be shown by

rehabilitation related to the conduct underlying the convictions. The Department urges that the

                                                  7
district court should have deferred to the Department’s interpretation of the Occupations Code and

that the district court exceeded the boundaries of an appropriate substantial evidence review.


Standard of Review

               Judicial review of the Commission’s decision is under the substantial evidence

standard of review. See Tex. Gov’t Code § 2001.174. A court applying this standard shall reverse

or remand an administrative order “if substantial rights of the appellant have been prejudiced because

the administrative findings, inferences, conclusions, or decisions are,” among other grounds, “not

reasonably supported by substantial evidence considering the reliable and probative evidence in the

record as a whole” or “made through unlawful procedure.” Id. § 2001.174(2)(C), (E). A court,

however, “may not substitute its judgment for the judgment of the state agency on the weight of the

evidence on questions committed to agency discretion.” Id. § 2001.174; see Pierce v. Texas Racing

Comm’n, 212 S.W.3d 745, 751 (Tex. App.—Austin 2006, pet. denied) (“We may not substitute our

judgment for that of the agency on questions committed to agency discretion.” (citing Texas Dep’t

of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 197 (Tex. 2003)).

               The parties’ dispute also concerns the construction of statutes, which is a question

of law we review de novo. Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water,

336 S.W.3d 619, 624 (Tex. 2011). Of primary concern in construing a statute is the express statutory

language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).

“We thus construe the text according to its plain and common meaning unless a contrary intention is

apparent from the context or unless such a construction leads to absurd results.” Presidio Indep. Sch.

Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) (citing City of Rockwall v. Hughes, 246 S.W.3d 621,

                                                  8
625–26 (Tex. 2008)). “If there is vagueness, ambiguity, or room for policy determinations in a

statute or regulation, . . . we normally defer to an agency’s interpretation unless it is plainly erroneous

or inconsistent with the language of the statute, regulation, or rule.” TGS-NOPEC Geophysical Co.

v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).


The Commission’s Decision

                The district court determined that the Department prejudiced substantial rights of

Thompson because its “findings, inferences, conclusions, or decisions” were “made through

unlawful procedure.” Tex. Gov’t Code § 2001.174(2)(C). In its two issues, the Department

contends that the district court erred because it failed to focus on—and should have based its

decision on—the Department’s authority to modify the ALJ’s findings of fact and conclusions of law

“to properly reflect its interpretation that rehabilitative efforts require a nexus to the underlying

criminal conduct” and the ALJ’s “significant misinterpretation of rehabilitation requirements for

applicants convicted of felonies involving prohibited sexual conduct or involving children

as victims.”

                The Department urges that the Commission complied with the applicable procedures

for modifying the ALJ’s findings and conclusions, specifically section 2001.058(e) of the

Government Code. See id. § 2001.058(e). Section 2001.058(e) authorizes a state agency to modify

a finding of fact or conclusion of law made by an ALJ if the agency determines that the ALJ “did not

properly apply or interpret applicable law.” Id.; see Pierce, 212 S.W.3d at 755–56 (concluding that

state agency’s decision to modify ALJ’s conclusion of law complied with section 2001.058(e) and

was not made through unlawful procedure). When a state agency changes a finding of fact or

                                                    9
conclusion of law made by an ALJ, “[t]he agency shall state in writing the specific reason and legal

basis for a change made under this subsection.” Tex. Gov’t Code § 2001.058(e).

                Here, the Commission deleted the ALJ’s findings that Thompson had demonstrated

that he could satisfactorily “perform duties and discharge the responsibilities of a tow truck operator”

and that the preponderance of the evidence showed that Mr. Thompson was unlikely to commit a

crime similar to the ones of which he was convicted. The Commission also deleted conclusions of

law and modified others to conclude that Thompson was not fit to perform the duties and discharge

the responsibilities of a tow truck operator and that his license should be denied. The Commission

provided the following explanation for its modifications to the ALJ’s findings and conclusions:


        The Administrative Law Judge did not properly apply the law when analyzing the
        factors contained in § 53.021 Tex. Occ. Code, concluding that applicant was fit to
        hold a Tow Truck Operator Incident Management license. Applicant was convicted
        of very serious crimes. Therefore, to warrant the granting of the license, any
        mitigating factors must outweigh the nature and severity of the offenses because the
        offenses are directly related to the occupation, and the license would offer applicant
        the opportunity to engage in similar criminal activity.

        Though the applicant committed the offenses more than twenty years ago when he
        was 22 years old, and he has apparently maintained a good work record since his
        release from prison, we find minimal evidence of a rehabilitative effort which deals
        with the circumstances or behavior which caused the commission of the offenses.
        Additionally, the applicant’s release on November 29, 2005 is less than four years
        ago, an insufficient amount of time to overcome the nature and seriousness of the
        offense. Finally, the Commission is concerned that the Administrative Law Judge
        appears to weigh in applicant’s favor the fact that applicant has persisted in
        maintaining his innocence over the years, thus minimizing or prohibiting any earnest
        rehabilitative effort. The weight that this Administrative Law Judge gave to this
        factor appears to contradict the weight that should have been given to the statutorily-
        required factor of “rehabilitation” in § 53.021 Tex. Occ. Code. Though applicant did
        pursue and obtain a college degree and mechanic training while incarcerated, those
        pursuits do not address how to treat or manage the behavior which led to the
        offenses. The employer of the applicant presented evidence that applicant has

                                                  10
       demonstrated an ability to perform related work with no incident, but he only worked
       for them for a one-year period.


Based upon this analysis, the Commission concluded: “Due to the nature and seriousness of the

offenses, and his apparent lack of rehabilitative effort, Mr. Thompson has not demonstrated that he

can satisfactorily perform the duties and discharge the responsibilities of a tow truck operator.”

               We find instructive the analysis in Smith v. Montemayor, No. 03-02-00466-CV,

2003 Tex. App. LEXIS 5099 (Tex. App.—Austin June 19, 2003, no pet.) (mem. op.). In that case,

the district court affirmed the order of the Commissioner of Insurance denying an application for a

local recording agent’s license. See id. at *1. The ALJ had recommended granting the license, but

the Commissioner disagreed based upon two felony theft convictions and modified certain findings

of fact and conclusions of law, “reasoning that the ALJ has misinterpreted the applicable law.” Id.

at *2, 4–5. One of the appellant’s issues challenged the Commissioner’s modification of the

findings of fact and conclusions of law under section 2001.058(e). Id. at *21. We held that

the Commissioner did not abuse his discretion in modifying the ALJ’s findings and

conclusions, explaining:


       None of the Commissioner’s modifications that [the appellant] finds objectionable
       involved adjudicative facts, that is, facts that require weighing the evidence and
       making credibility determinations. . . . Rather, the modifications reflect the
       Commissioner’s interpretation of the Department’s rules and applicable statutes. An
       agency enjoys complete discretion in modifying an ALJ’s findings and conclusions
       when those findings and conclusions reflect a lack of understanding or
       misapplication of the existing laws, rules or policies. . . . Furthermore, the
       Commissioner fully complied with the statutory requirement that he specify the
       reason and legal basis for the changes made to the ALJ’s findings.




                                                 11
Id. at *26–27 (internal citations omitted).

               Similarly, the Commission in this case modified the ALJ’s findings and conclusions

based upon its determination that the ALJ had misapplied existing law and provided its reasons in

writing for its modifications. The Commission specifically found that the ALJ had misapplied the

statutory factors. In its decision, the Commission expressed concern with the seriousness and nature

of Thompson’s crimes involving prohibited sexual conduct and children as victims and disagreed

with the ALJ’s analysis of Thompson’s rehabilitation. See Tex. Occ. Code § 53.023(a)(5); see, e.g.,

Rodriguez v. State, 93 S.W.3d 60, 68 (Tex. Crim. App. 2002) (noting that, in enacting sex offender

registration statute, legislature considered the “unique threat sex offenders present to public

safety, the high rate of recidivism among sex offenders, the low incidence of rehabilitation among

sex offenders, and that sexual misconduct often begins as a juvenile” (quoting In re. M.A.H.,

20 S.W.3d 860, 863 (Tex. App.—Fort Worth 2000, no pet.))). In contrast with the ALJ’s

interpretation, the Commission interpreted “rehabilitative efforts” to require more than general

efforts of self-improvement that were not related to the underlying criminal activity. In its decision

denying Thompson’s motion for rehearing, the Commission explained: “[T]he Commission

interpreted rehabilitation or rehabilitative efforts to require a nexus between the conduct giving rise

to the criminal conviction and the rehabilitation or rehabilitative efforts.”

               Thompson does not dispute that he did not receive sex offender counseling related

to the conduct underlying the convictions. Thompson was not eligible for counseling during his

imprisonment because he denied that he committed the crimes, and, after his release, he continued

to maintain that he was falsely convicted. The ALJ concluded that Thompson’s consistent position



                                                  12
weighed in his favor and was a mark of “integrity.” Whether an applicant was properly convicted

of the crimes at issue, however, is not among the statutory factors for consideration. See Tex. Occ.

Code §§ 53.022–.023. In contrast with the ALJ’s analysis, the Commission addressed the statutory

factor of rehabilitation in the context of the specific conduct underlying his convictions and

determined that Thompson’s position minimized or prohibited “any earnest rehabilitative effort.”

                We also note that denying Thompson’s license was within the bounds of the

Department’s statutory authority, see id.§ 53.021, and that the Commission expressly addressed and

made findings in its decision as to the other statutory factors in sections 53.022 and 53.023. See id.

§§ 53.022–.023. The Commission considered the “nature and seriousness” of Thompson’s

convictions, “the purposes for requiring a license to engage in the occupation” of tow truck operator,

and the direct relationship between his crimes and the occupation of tow truck operator. See id.

§ 53.022. The Commission concluded that the crimes “directly related to the occupation, and the

license would offer applicant the opportunity to engage in similar criminal activity.” The

Commission also considered the extent of Thompson’s past criminal activity, his age at the time he

committed the crimes, the amount of time that had elapsed since his last criminal activity,

his conduct and work activity, and other evidence of his fitness, including the letters

of recommendation.4


       4
           The Commission’s findings of fact included the following:

       •        Mr. Thompson worked successfully as a tow truck operator from April 2007
                to September 2008.

       •        No evidence was presented indicating that Mr. Thompson has committed any
                criminal activity since his release.

                                                 13
               In its decision, the Commission expressly noted that Thompson “apparently

maintained a good work record since his release from prison,” he “did pursue and obtain a college

degree and mechanic training while incarcerated,” and that Thompson’s employer “presented

evidence that applicant has demonstrated an ability to perform related work with no incident.” See

id. § 53.023. Although this evidence was favorable to Thompson, whether to deny Thompson’s

license because of his criminal convictions was a matter within the Department’s discretion. See id.

§ 53.021 (providing that licensing authorities “may” deny license based upon criminal conviction);

Tex. Gov’t Code § 311.016 (“‘May’ creates discretionary authority or grants permission or a

power.”). We may not substitute our judgment for that of the Department on a matter committed to

its discretion. See Tex. Gov’t Code § 2001.174; Pierce, 212 S.W.3d at 751.

               We conclude that the Commission complied with section 2001.058(e) by specifying

the reason and legal basis for its modifications to the ALJ’s findings and conclusions and that its

decision was supported by substantial evidence and made through lawful procedure. See Tex. Gov’t

Code §§ 2001.058(e), .174. Thus, we sustain the Department’s issues.


Thompson’s Response

               Thompson raises several issues and various arguments in his appellee’s brief to

support the district court’s judgment and to respond to the Department’s issues. In addition to

challenging the Commission’s modifications to the ALJ’s findings and conclusions, he urges that




       •       Employers, clients, a co-worker, and a family member provided
               recommendations on Mr. Thompson’s behalf, attesting to his
               professionalism, dependability, good character, and honesty.

                                                14
the Department cannot assert a new and different definition of rehabilitation for the first time after

a SOAH hearing and that the Department improperly interpreted rehabilitation to require allocution.

He also raises due process concerns. To the extent that we have not already done so, we respond to

his arguments.


        Reasonableness of Department’s Interpretation

                 Thompson contends that the Department’s interpretation of rehabilitation is

unreasonable because his crime is not actually related to the occupation of a tow truck driver and that

this Court should not defer to the Department’s interpretation because chapter 53 is not a

Department-specific statute, the statute is not ambiguous, and the Department’s interpretation is not

reasonable. Chapter 53, however, expressly authorizes the Department to deny a license application

based upon criminal convictions and requires it to issue criminal conviction guidelines as to

particular crimes. See Tex. Occ. Code §§ 53.021, .025(a). The Department’s guidelines provide that

crimes involving prohibited sexual conduct or children as victims relate directly to the

duties and responsibilities of the licensed occupation of a tow truck operator. According to its

guidelines, Thompson’s convictions of the offense of sodomy with a child then “directly related to

the occupation.”

                 We also conclude that the Department’s interpretation is reasonable and in accord

with the plain language of the statute. See Texas Citizens, 336 S.W.3d at 625. Factors other than

the rehabilitation factor in section 53.023(a)(5) specifically address an applicant’s fitness based upon

general efforts of self-improvement that are unrelated to the underlying criminal activity. See Tex.

Occ. Code §§ 53.023(4) (requiring consideration of “conduct and work activity of person before and

                                                  15
after the criminal conduct”), (6) (“other evidence of the person’s fitness”). Subsection (c) of section

53.023 further requires the applicant to furnish proof that the applicant has “maintained a record of

steady employment” and “maintained a record of good conduct.” Id. § 53.023(c).

                Given that other statutory factors already address an applicant’s general fitness,

requiring a nexus between rehabilitative efforts and the underlying criminal conduct allows the

licensing authority to focus on the applicant’s potential risk to the public based upon his particular

past criminal conduct. See 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008) (explaining that

when interpreting statutes, court considers entire act, not isolated portions, and “must consider

[section’]s role in broader statutory scheme”); see, e.g., Tex. Code Crim. Proc. art. 42.12 (in context

of community supervision, addressing rehabilitation by treatment or programs tailored to particular

criminal conduct at issue such as “alcohol or drug rehabilitation” and “rehabilitation of sex

offenders”). The licensing authority is directed to focus on the steps that an applicant has taken to

minimize the risk that the applicant will commit similar criminal conduct in the future. Here, the

evidence was undisputed that Thompson has not taken objective steps to address the conduct

underlying his convictions.


        Due Process Concerns

                Thompson also raises due process concerns. He characterizes the Department’s

definition of rehabilitation as the retroactive application of a new “policy.” See Texas State Bd. of

Pharm. v. Seely, 764 S.W.2d 806, 814 (Tex. App.—Austin 1988, writ denied) (holding that licensee

entitled to notice before administrative hearing of legal standards that would be applied to the facts).

Thompson urges that the Department was prohibited from asserting a new and different definition

                                                  16
of rehabilitation for the first time after the SOAH hearing and that allowing the Department to create

and apply policies after the fact violates due process. See id.; see also Flores v. Employees

Retirement Sys., 74 S.W.3d 532, 545 (Tex. App.—Austin 2002, pet. denied) (noting that “when an

agency adopts new policy in the course of a contested-case hearing without giving the parties

pre-hearing notice, the parties may be deprived of procedural due process). Thompson also contends

that he should have received a copy of this “policy” in accordance with section 2001.058(c) of the

Government Code. See Tex. Gov’t Code § 2001.058(c) (“A state agency shall provide the

administrative law judge with a written statement of applicable rules or policies.”).

               The Commission, however, did not adopt a new policy, but applied the factors

prescribed by the legislature in the Occupations Code. Prior to the administrative hearing,

Thompson received written notice that the Commission would consider the statutory factors in the

Occupation Code, including his rehabilitative efforts, to determine the consequence of his criminal

convictions on his license application. See Tex. Occ. Code §§ 53.021–.023. Further, staff urged the

Department’s interpretation during the administrative proceeding. In its exceptions to the ALJ’s

proposal for decision, the Department expressly raised Thompson’s lack of rehabilitative efforts.

The Department noted that Thompson “has never accepted his guilt or engaged in sex offender

counseling” and then argued:


       Considering the gravity of the offenses for which the Applicant has been convicted
       as well as his failure to accept responsibility for what he has done, he cannot be
       considered rehabilitated. He remains a grave threat to the citizens of Texas.




                                                 17
                We conclude that Thompson had notice of the legal standards that applied to his case

 and that the Department did not violate section 2001.058(c) of the Government Code or Thompson’s

 due process rights. See Tex. Gov’t Code § 2001.058(c); Seely, 764 S.W.2d at 814.


        Allocution

               Thompson also urges that the Department cannot define rehabilitation so that an

applicant can only satisfy the definition if he allocutes to the offense for which he was convicted.

Allocution in the criminal context refers to “both a statutory and a common-law right to allocute (i.e.,

to address whether there is any legal reason why sentence should not be imposed) before being

sentenced.” Vaughn v. State, No. 03-08-00610-CR, 2010 WL 2540600, at *3 (Tex. App.—Austin

June 25, 2010, no pet.) (mem. op., not designated for publication) (citing Tex. Code Crim. Proc. art.

42.07 and Eisen v. State, 40 S.W.3d 628, 631–32 (Tex. App.—Waco 2001, pet. ref’d)).5 We find the

concept of allocution not relevant here.

               To the extent that Thompson is arguing that the Department cannot define

rehabilitation to require an applicant to admit that he committed the crime of which he was convicted,

rehabilitation is only one of the statutory factors and, depending on the nature of the crime, it may or

may not be as significant as it is here. Further, as previously stated, the legislature did not include

among the factors whether the applicant actually committed the crime of which he was convicted.




        5
          An allocution statement can also refer to a post-sentence statement of victims, authorized
 under article 42.03 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 42.03;
 Johnson v. State, 286 S.W.3d 346, 347–48 (Tex. Crim. App. 2009).

                                                  18
                                       CONCLUSION

              We hold that the Commission’s decision to deny Thompson’s application for a tow

truck license was supported by substantial evidence and made through lawful procedure. See Tex.

Gov’t Code § 2001.174. Thus, we sustain the Department’s issues, reverse the district court’s

judgment, and render judgment affirming the Commission’s decision.



                                            __________________________________________

                                            Melissa Goodwin, Justice



Before Justices Puryear, Rose and Goodwin

Reversed and Rendered

Filed: July 18, 2013




                                              19
