Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 16,2010
Mr. Robert Scott Opinion No. GA-0759
Commissioner of Education
Texas Education Agency Re: Authority of a licensing agency to obtain
1701 North Congress Avenue criminal history information regarding an applicant
Austin, Texas 78701-1494 (RQ-0820-GA)
Dear Mr. Scott:
In 2009, the Legislature enacted subchapter D of chapter 53 of the Texas Occupations Code,
which authorizes a potential applicant for a business, professional, or occupational license I to request
from the licensing authority a criminal history2 evaluation letter regarding the person's eligibility for
the license. See Act of May 31, 2009, 81st Leg., RS., ch. 616, § 1,2009 Tex. Gen. Laws 1400,
1401. The statute is intended to permit applicants with a criminal history to find out whether that
history makes them ineligible for a license before expending time, effort, or money for training or
taking a licensing examination. 3
You seek our advice about the Texas Education Agency's (the "TEA") authority under
subchapter D to require a potential applicant seeking a criminal history evaluation letter to submit
IChapter 53 does not apply to certain persons and licenses, such as licenses issued by or under the authority of
the Supreme Court of Texas. See TEX. OCC. CODE ANN. § 53.002(1) (Vernon Supp. 2009).
2The statute does not define "criminal history" or "criminal history information"; nor does it suggest that the
meaning of those terms is limited to "criminal history record information" ("CHRI") as defined, for instance, in
Government Code section 411.082(2). See id §§ 53.101-.105; TEx. GOV'T CODE ANN. § 411.082(2) (Vernon 2005)
(defming CHRI as "information collected about a person by a criminal justice agency that consists of identifiable
descriptions and notations of arrests, detention, indictments, informations, and other formal criminal charges and their
dispositions").
3See TEx. OCC. CODE ANN. §§ 53.102, .104 (Vernon Supp. 2009); see also SENATE RESEARCH CENTER, BILL
ANALYSIS, Tex. H.B. 963, 81stLeg., R.S. (2009) (explaining that the legislation requires licensing authorities to "create
a ... process by which applicants with a criminal background may request a criminal history evaluation letter to
determine the applicant's eligibility for licensure prior to beginning occupational training or investing in a licensing
examination").
Mr. Robert Scott - Page 2 (GA-0759)
"complete information to allow investigation" and TEA's duty to consider "all facts involved in the
criminal history at the time of issuing" the letter. 4
The TEA, you inform us, evaluates applicants for a public school educator certificate and
resolves "issues involving criminal history and other conduct that may have an effect on fitness to
hold a Texas educator certificate" for the State Board for Educator Certification (the "SBEC").
Request Letter at 1; see also TEx. EDUC. CODE ANN. § 21.035 (Vernon Supp. 2009) ("The [TEA]
shall provide the [SBEC], s administrative functions and services."). "The SBEC is the agency
responsible for the licensing and discipline of certified educators in Texas." Lake Travis Indep. Sch.
Dist. v. Lovelace, 243 S.W.3d 244, 248 n.2 (Tex. App.-Austin 2007, no pet.).5 As a licensing
agency, the SBEC is subject to subchapter D of chapter 53 of the Occupations Code requiring a
licensing authority to determine a potential applicant's eligibility in response to a request seeking
a criminal history evaluation letter. See TEx. Dcc. CODE ANN. §§ 53.101(1)-(2) (Vernon Supp.
2009) (defining "license" and "licensing authority"), 53.1 02 (authorizing request), 53.103 (providing
authority to investigate), 53.104 (requiring licensing authority to make a determination of eligibility
or ineiigibiiity).
Section 53.102 in subchapter D provides that:
(a) A person may request a licensing authority to issue a criminal
history evaluation letter regarding the person's eligibility for a license
issued by that authority if the person:
(1) is enrolled or planning to enroll in an educational program
that prepares a person for an initial license or is planning to take an
examination for an initial license; and
(2) has reason to believe that the person is ineligible for the
license due to a conviction or deferred adjudication for a felony or
misdemeanor offense.
(b) The request must state the basis for the person's potential
ineligibility.
Id § 53.102.
4See Request Letter at 1-3 (available at http://www.texasattorneygeneral.gov). You specifically note that the
legislation enacting subchapter D requires an entity subject to its provisions to "adopt rules necessary to administer
Subchapter D" no later than September 1,2010. Act of May 31,2009, 81st Leg., R.S., ch. 616, § 2, 2009 Tex. Gen.
Laws 1400, 1401; see Request Letter at 1. However, you do not ask about any particular or proposed rules.
5Chapter 21 of the Education Code establishes the SBEC, which is responsible for regulating and overseeing
"all aspects of the certification, continuing education, and standards of conduct of public school educators." TEX. EDUC.
CODE ANN. § 21.031(a) (Vernon 2006); see also id § 21.003(a) (Vernon Supp. 2009) (providing that a school district
may not employ a person as an educator unless the person is certified or issued a permit by the SBEC).
Mr. Robert Scott - Page 3 (GA-0759)
In response to such a request, section 53.104 requires a licensing authority to issue a notice
or a letter regarding the persons eligibility:
(a) If a licensing authority determines that a ground for ineligibility
does not exist, the authority shall notify the requestor in writing of the
authority's determination on each ground of potential ineligibility.
(b) If a licensing authority determines that the requestor is ineligible
for a license, the licensing authority shall issue a letter setting out
each basis for potential ineligibility and the authority's determination
as to eligibility. In the absence of new evidence knownto but not
disclosed by the requestor or not reasonably available to the licensing
authority at the time the letter is issued, the authority's ruling on the
request determines the requestor's eligibility with respect to the
grounds for potential ineligibility set out in the letter.
(c) A licensing authority must provide notice under Subsection (a)
or issue a letter under Subsection (b) not later than the 90th day after
the date the authority receives the request.
Id. § 53.104.
Your first question asks: "Mayan agency require a potential applicant seeking a criminal
history evaluation letter to submit an application containing complete information to allow
investigation?" Request Letter at 2. You do not explain what you mean by "complete information"
or "investigation," nor identify the legal basis of your concern.
We consider first whether any provision in subchapter D restricts the information that a
licensing authority may ask a requestor seeking a criminal history evaluation letter to submit.
Section 53.1 02(a) authorizes a request for a "criminal history evaluation letter" if the requestor "has
reason to believe that the person is ineligible for the license due to a conviction or deferred
adjudicationfor afelony or misdemeanor offense." TEx. Occ. CODE ANN. § 53.102 (a)(2) (Vernon
Supp. 2009) (emphasis added). Additionally, section 53.1 02(b) requires the request to "state the
basis for the person's potential ineligibility." Id. § 53.102(b). While subsection (b), when read in
conjunction with subsection (a), requires a statement of at least the conviction or deferred
adjudication for the offense that may potentially render the requestor ineligible, the plain language
of the statute does not limit the request to providing only that information. See Lelandv. Brandal,
257 S.W.3d 204,206 (Tex. 2008) ("If the statute's language is unambiguous, its plain meaning will
prevail."). Section 53.102 does not restrict the information that may be required in a request to a
statement of the conviction or deferred adjudication that may be the grounds for the potential
ineligibility.
We next consider the express responsibilities and powers conferred on the SBEC as a
licensing authority under subchapter D and its implied powers reasonably necessary to carry out
Mr. Robert Scott - Page 4 (GA-0759)
those express powers and responsibilities. See Tex. Mun. Power Agency v. Pub. Uti!. Comm 'n, 253
S.W.3d 184, 192-93 (Tex. 2007) (stating that a legislatively created state agency has the powers
expressly conferred on it by the Legislature and '''implied powers that are reasonably necessary to
carry out the express responsibilities given to it by the Legislature'" (quoting Pub. Uti!. Comm 'n v.
City Pub. Servo Rd., 53 S.W.3d 310,315 (Tex. 2001»). In response to a section 53.102 request,
section 53.104 expressly imposes on a licensing authority the responsibility to determine eligibility
with respect to the grounds of ineligibility set out in the request. See TEx. OCC. CODE ANN.
§ 53.104(a)-(b) (Vernon Supp. 2009). Additionally, section 53.103 expressly provides that a
"licensing authority has the same powers to investigate a request [for a criminal history evaluation
letter] submitted under this subchapter [D] and the requestor's eligibility that the authority has to
investigate a person applying for a license." Id § 53.1 03 (emphasis added). Subchapter D does not
define the term "investigate," and we do not find a relevant judicial definition of the term.
Undefined terms are typically given their ordinary meaning. See TEx. GOV'T CODE ANN.
§ 311.011(a) (Vernon 2005); Monsanto Co. v. Cornerstones Mun. Uti!. Dist., 865 S.W.2d 937, 939 0
(Tex. 1993). The ordinary meaning of the term "investigate" is to "carry out a systematic or formal
inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the
truth[.]" THE NEW OXFORD AMERICAN DICTIONARY 893 (2001). Applying this ordinary meaning,
a licensing authority has the same authority to discover and examine facts with respect to a request
for a criminal history evaluation letter as it has with respect to an applicant for a license. Thus, we
believe the SBEC's authority to investigate encompasses the authority to obtain more information
than just the fact ofthe conviction or deferred adjudication for a felony or misdemeanor offense. For
instance, under Education Code section 22.082, the SBEC is specifically empowered to obtain "from
any law enforcement or criminal justice agency all criminal history record information and all
records contained in any closed criminal investigation file that relate to a specific applicant for or
holder ofa certificate." TEx. EDUC. CODE ANN. § 22.082 (Vernon Supp. 2009).
Significantly, both under chapter 53 ofthe Occupations Code and chapter 21 ofthe Education
Code, the fact of a conviction or deferred adjudication for a felony or misdemeanor offense does not
automatically or by itself render an applicant ineligible for a certificate. A determination of
ineligibility for conviction of a criminal offense is discretionary and requires consideration of
additional information. See TEx. OCC. CODE ANN. §§ 53.021-.23 (Vernon 2004 & SUpp. 2009);
TEx. EDUC. CODE ANN. § 21.060 (Vernon Supp. 2009). Occupations Code section 53.021(a) and
Education Code section 21.060 permit, but do not require, the SBEC to disqualify an applicant based
on a conviction of an offense directly related to the duties and responsibilities of the education
profession or other specifically described offenses. See TEx. Occ. CODE ANN. § 53.021(a) (Vernon
Supp. 2009); TEx. EDUC. CODE ANN. § 21.060 (Vernon SUpp. 2009); see also Tex. Att'y Gen. Op.
No. GA-0614 (2008) at 4-5 (construing section 21.060 to provide a nonexclusive list of offenses and
to create discretionary authority in the SBEC to take action for the listed offenses). Pursuant to
Occupations Code sections 53.022 and 53.023, in determining whether the offense relates to the
profession's duties and responsibilities, the SBEC must consider various factors, including the
following: the seriousness of the offense; the relationship of the offense to the person's fitness to
perform his duties; the extent and nature of the person's criminal activity; and the age of the person
when the crime was committed. See TEx. Oec. CODE ANN. §§ 53.022-.023 (Vernon 2004).
Mr. Robert Scott - Page 5 (GA-0759)
Based on the express powers and responsibilities conferred by Occupations Code chapter 53
and Texas Education Code chapter 21 on the SBEC, we conclude that it has the.implied authority
to require that a request seeking a criminal history evaluation letter contain any information
necessary to allow an investigation and a determination as to eligibility on the basis of the criminal
conviction or deferred adjudication set out in the request. See City Pub. Servo Bd, 53 S.W.3d at 316
("when the Legislature expressly confers a power on an agency, it also impliedly intends that the
agency have whatever powers are reasonably necessary to fulfill its express functions or duties").
What information may be necessary for that purpose is a matter within the reasonable discretion of
the SBEC in the first instance. Cf Tex. Att'y Gen. Op. No. JC-0566 (2002) at 4 (concluding that
"[w]hat otherinformation the SBEC may deem sufficient for the purpose of [its certification rule]
is a matter within its discretion, so long as that discretion is not exercised arbitrarily and
capriciously" (citing Occidental Permian, Ltd V. R.R. Comm 'n, 47 S.W.3d 801, 806 (Tex.
App.-Austin 2001, no. pet.))).
Your second question asks: "Must an agency consider all facts involved in the criminal
history at the time of issuing a criminal history evaluation letter?" Request Letter at 2. You note that
Occupations Code section 53.1 04(b) "could be read as requiring the licensing agency to evaluate and
make a determination regarding the factual circumstances that led to the conviction." Id. You
provide the following example:
For example, TEA and SBEC have not generally considered a single
conviction for driving while intoxicated to disqualify an applicant.
However, a determination that the offense took place while
transporting students at a school event might result in a denial.
Criminal history records may not have sufficient detail to allow that
type of evaluation.
Id. at 2-3.
If a licensing authority determines that the requestor of a criminal history evaluation letter
is ineligible, section 53.1 04(b) requires the authority to issue a letter and further provides as follows:
In the absence of new evidence known to but not disclosed by the
requestor or not reasonably available to the licensing authority at the
time the letter is issued, the authority's ruling on the request
determines the requestor's eligibility with respect to the grounds for
potential ineligibility set out in the letter.
TEx. Oee. CODE ANN. § 53.104(b) (Vernon Supp. 2009).
In construing subsection (b), we look to its plain language and the purpose of the statute as
a whole, which is to permit potential applicants to find out whether their particular criminal history
makes them ineligible for a license before expending time, effort, or money for training or taking a
licensing examination. See supra note 3; Leland, 257 S.W.3d at 206 (stating that the objective of
Mr. Robert Scott - Page 6 (GA-0759)
statutory construction is to determine the Legislature'S intent, which is determined by the plain
meaning of the statutory words); Helena Chern. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)
(stating that in determining legislative intent, a court may consider "the object sought to be obtained"
and "must always consider the statute as a whole Father than its isolated provisions"). Applying
these statutory construction principles, we read section 53.1 04(b) to contemplate that the licensing
authority's ruling as to eligibility will be determinative with respect to the grounds on which it is
based-the criminal conviction or deferred adjudication for a misdemeanor or felony
offense---except in limited circumstances. The described limited circumstances, i.e., when
information is known to but is not disclosed by the requestor or is not reasonably available to the
agency, contemplate that the agency will obtain all reasonably available information necessary to
make the required determination.
Accordingly, in answer to your second question, we conclude that a licensing authority must
consider all the evidence relevant to the determination of eligibility with respect to the conviction
or deferred adjudication at issue that is reasonably available to the agency at the time of issuing the
criminal history evaluation letter. 6 What information is "reasonably available" in this context is
largely a question of fact-because it will depend on the particular circumstances confronting the
licensing authority-that must necessarily be determined by the licensing authority in the first
instance. See Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7 (explaining that disputed questions of
fact or mixed questions of law and fact cannot be resolved in an attorney general opinion).
6We note that the Legislature recognized that the investigation and evaluation required to detennine eligibility
would impose additional costs as evidenced by Occupations Code section 53.105, which specifically authorizes a
licensing authority to adopt fees that "must be in an amount sufficient to cover the cost of administering the chapter."
TEX. Occ. CODE ANN. § 53.105 (Vernon Supp. 2009); see also Request Letter at 2 ("A requirement to evaluate any
'evidence ... reasonably available' beyond the existence of criminal history could require a licensing agency to commit
significant resources to investigate criminal history records.").
Mr. Robert Scott - Page 7 (GA-0759)
SUMMARY
Subchapter D of chapter 53 of the Texas Occupations Code
authorizes a potential applicant for a business, professional, or
occupational license to request from the licensing authority a criminal
history evaluation letter regarding the person's eligibility for the
license. The State Board for Educator Certification (the "SBEC") is
authorized to require that such a request contain any information
necessary to allow an investigation and a determination as to
eligibility on the basis of the criminal conviction or deferred
adjudication set out in the request. What information may be
necessary for that purpose is a matter within the reasonable discretion
of the SBEC in the first instance.
Under section 53.1 04(b), a licensing authority must consider
all the evidence relevant to the determination of eligibility with
respect to the conviction or deferred adjudication at issue that is
reasonably available to the agency at the time of issuing the criminal
history evaluation letter. What information is "reasonably available"
in this context is largely a question of fact that must necessarily be
determined by the licensing authority in the first instance.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
SheelaRai
Assistant Attorney General, Opinion Committee