Untitled Texas Attorney General Opinion ( 1995 )

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DAN MORALES
ATTORNEY
GENERAL January 13, 1995
Honorable W. Keith Oakley Opinion No. DM-3 15
Chair
Committee on Public Safety Re: Interpretation of section 80.001 of the
Texas House of Representatives Human Resources Code, which concems the
P.O. Box 2910 duty of local law enforcement officials to
Austin, Texas 78768-2910 perform fingerprinting services (RQ-718)
Dear Representative Oakley:
You ask this office to interpret section 80.001 of the Human Resources Code,
which concerns the duty of local law enforcement officials to perform fingerprinting
RNiCeS.
Section 80.001 reads:
(a) A state law enforcement agency or the law en8orcement
agency of any political subdivision of the state shah comply with the
request of a person to have a record of his fingerprints made or a
record of the fingerprints of a child or ward of the person made.
(b) A law enforcement agency may not charge for the service
provided under this section and may not retain records of fingerprints
made under this section unless specifically requested to do so by the
person requesting the service.
You note that some Texas law enforcement agencies are either re.&sing to provide
such service or charging a fee for it, apparently taking the view that, as you put it, “rhe
statute did not intend for local law enforcement officers to do free fingerprinting for
anyone except children.”
Accordingly, you ask three questions: first, whether a local law enforcement
agency may refuse to provide fingerprinting services on request; second, whether it may
charge for such services; and third, whether it may impose conditions (other than
providing the service during normal business hours when staE is available) on providing
such services.
We believe that the plain language of the statute addresses your concerns. As to
your first question, a local law enforcement agency is required to perform the senice, and
may not refuse to do so. Section 80.001(a) provides that the agency “shall comply” with a
request for this service. The language used by the legislature is mandatory, not precatory.
BLACK’SLAW DICTIONARY1375 (6th ed. 1990) (“As used in statutes, contracts, or the
like, this word is generally imperative or mandatory[;] [i]n common or ordinary
p. 1676
HonorableW.KeithOakky - Page 2 (``-315)
signiiication, the term “shall” is a word of command, and one which has always or which
mustbegivenaannpulsory meaning as denoting obligation”).
Similar& the knguage of section 80.001@) plainly answers your second question.
An agency “may not charge for the service provided under this se&on.” Nothing in the
provision suggests that this sedcc is to be provided he of charge only to chikn. Such
a~wwldreadarthe~“tohwearecordofhistingerp~smade”auplusaee.
See Chewon Cap. v. Redmm, 745 S.W.2d 314,316 (Tex. 1987) @amtory kguage not
tobetrutedassurplusage).
Nordoesurythinginthestatutepamitalocal~enforcemartsgencytoimposc
additional conditions on the perfom```` of this service. The law imposes a duty on local
law enforcement agencies which they must discharge without fee or restriction.
SUMMARY
Section 80.001 of the Human Resource$ Code obliges state
and local law etSxcement agencies to provide free
fingeqkting services to the public upon request and without
additional wllditio&~
DAN MORALES
Attorney Gearal of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Gpiion Committee
Prepared by James Tourtelott
Assistant Attorney General
p. 1677