Untitled Texas Attorney General Opinion ( 1999 )

October 22. 1999
The Honorable Judith Zaftirini Opinion No. X-0130
Chair, Committee on Human Services
Texas State Senate Re: Whether the Texas Department of Protective
P.O. Box 12068 and Regulatory Services may rescind certain
Austin, Texas 78711 license to operate a child-care facility
(RQ-0049-K)
Dear Senator Zaftirini:
You ask whether the Texas Department of Protective and Regulatory Services may rescind
the license of a child-care facility operator who was convicted of a criminal offense thirty years ago.
We conclude that, under current Department rules, the Department may rescind the license of a
child-care facility operator who was convicted of a criminal offense.
You are inquiring about a particular case in which a person who had been convicted of
aggravated assault was granted a license to operate a child-care facility. The person pleaded guilty
in 1969 to aggravated assault, which was then a misdemeanor offense but which is now a felony
offense listed in Title 5 of the Penal Code. See TEX. PEN.CODEANN. 3 22.02 (Vernon 1994). Her
sentence was suspended and she successfully served two years of probation, now called community
supervision, at which time the case against her was dismissed pursuant to the Misdemeanor
Probation Law of 1965, former article 42.13 of the Code of Criminal Procedure, which was then in
effect. Some years ago, the Department waived the licensing requirements and granted the person
permission to operate a child-care facility under a prior Department rule that allowed a person
convicted of any offense to operate a child-care facility upon proof of rehabilitation. The rule was
amended in 1998 to prohibit rehabilitation for Title 5 offenses, and consequently the Department
began proceedings to rescind the operator’s rehabilitation waiver and revoke her license. You ask
whether the Department may revoke her license.
We do not determine whether the Department may revoke the license of the particular child-
care facility operator about whom you ask. This determination requires factual findings related to
the criminal proceedings against the person, and we are unable to make such findings in the opinion
process. Instead, we address the Department’s legal authority with respect to child-care facility
licensing.
With certain exceptions, no person may operate a child-care facility in Texas without a
license or certificate issued by the Department of Protective and Regulatory Services pursuant to the
requirements of chapter 42 of the Texas Human Resources Code. TEX. HUM. F&S. CODE ANN.
8 42.041 (a) (Vernon Supp. 1999). The Department may suspend, deny, revoke, or refuse to renew
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the license of a facility that does not comply with the requirements of chapter 42, with the standards
or rules of the Department, or with the specific terms ofthe license. Id § 42.072(a).
As part ofits licensing function, for each applicant the Department must perform a criminal
history and background check and search the central registry of reported child-abuse cases, Id.
$5 42.0445, ,056, ,057. “The department by rule may provide for denial of an application or renewal
for a licensed facility or may revoke a facility’s license based on findings of background or
criminal history as a result of a background or criminal history check.” Id. 5 42.072(d) (added by
Act ofMay 23,1997,75thLeg., R.S., ch. 1217, $13,1997 Tex. Gen. Laws 4674,4679), Consistent
with the authority granted in section 42.072(d), the Department has adopted a rule providing that it
nzay deny or revoke a license or certificate to operate a child-care facility based on the results of a
child-abuse registry search or criminal-history check. 40 TEX. ADMIN.CODE5 725,1801(h) (1999).
For certain convictions, however, the rule requires the Department to deny or revoke a license:
The department shall deny an application or renewal for a license, certificate,
listing or registration or shall revoke a license, certificate, or family home’s
listing or registration if the results of the background or criminal history
check conducted by the department show that a person has been convicted of
an offense under Title 5 [offenses against the person] or 6 [offenses against
the family] ofthe Penal Code, or chapter 43, Penal Code [public indecency],
or any like offense in another state.
Id. (emphasis added). This part of the rule is also authorized, though not required, by section
42.072(d). See TEX. GOV’T CODEANN. § 3 11.016 (Vernon 1998) (providing that unless the context
requires otherwise, “may” creates discretionary authority or grants permission or a power, while
“shall” imposes a duty).
Another Department rule prohibits a person who has been convicted of a Title 5, Title 6, or
chapter 43 offense from being present at a child-care facility while children are in care. See 40 TEX.
ADMIN. CODE 5 715.407 (1999). This rule is significant to the case about which you ask because,
as we understand it, the person not only holds the license but is present at the facility as an
employee. Normally, a facility may receive permission from the Department not to meet a
Department standard. See id. $5 725.2023, .3067. A facility may receive awaiver oftheprohibition
on a convicted person having contact with children by showing to the Department’s satisfaction that
the person has been rehabilitated: “If an applicant. wishes to employ an individual in contact with
children who has been convicted of a criminal offense, the applicant. , . must send a request to the
director of licensing establishing that rehabilitation has occurred.” Id. 5 725.2027(a). If granted a
waiver, the licensee must meet all conditions of the waiver. See id. 3 725.2023.
But for certain offenses, permission to employ a rehabilitated convict will not be granted:
“Rehabilitation will not be granted for offenses of Title 5 of the Penal Code (Offenses Against the
Person); Title 6 of the Penal Code (Offenses Against the Family); and Chapter 43 of Title 9 of the
Penal Code (Public Indecency).” Id. 5 725,2027(c). Prior to a Department rule change in 1998, a
rehabilitation waiver could be granted for any offense. We understand that because the rule was
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amended to prohibit rehabilitation for Title 5 offenses, the Department began license revocation
proceedings against the operator about whom you ask.
We also note that a statute applying to state licenses generally authorizes a licensing
authority, with a few exceptions, to revoke the license of a convicted person ifthe conviction directly
relates to the subject of the license: “A licensing authority may suspend or revoke a license,
disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing
examination on the grounds that the person has been convicted of a felony or misdemeanor that
directly relates to the duties and responsibilities of the licensed occupation.” Act ofMay 13, 1999,
76th Leg., R.S., ch. 388, § 1, sec. 53.021, 1999 Tex. Sess. Law Serv. 1431, 1447 (to be codified at
chapter 53 of the Texas Occupations Code) (codifying article 6252-13~ of the Revised Civil
Statutes); see also id. 5 6(a), 1999 Tex. Sess. Law Serv. at 2439-40 (repealing article 6252-13~ of
the Revised Civil Statutes). The statute lists factors to be considered by the licensing authority in
determining whether the conviction relates to the occupation and in determining the fitness of the
licensee to perform the duties of the license. Id. 9 53.022. While we cannot decide whether
revocation of the waiver or the license is merited by the facts of the particular case about which you
ask, we conclude that the rule requiring the Department to revoke the license of a person convicted
of a Title 5 offense and the rule prohibiting a rehabilitation waiver for such a person both are valid.
The rules are authorized, though not required, by section 42.072(d) of the Human Resources Code.
It is true that the rules would appear to operate retroactively against the facility operator in
this case, since they would allow the Department to revoke a license that was valid under a prior
regulation. See TEX. CONST. art. I, § 16 (“No bill of attainder, ex post facto law, retroactive law, or
any law impairing the obligation of contracts, shall be made.“). But mere retroactivity is not
sufficient to invalidate operation of the rule on constitutional grounds, since a retroactive law is
prohibited by the constitution only if it takes away or impairs a vested right. State v. Project
Principle, Inc., 724 S.W.2d 387, 390 (Tex. 1987); Merchants Fast Motor Lines, Inc. v. Railroad
Comm ‘n, 573 S.W.2d 502,504 (Tex. 1978). The granting of licenses andpermits to conduct certain
activities in the state are generally held to be privileges, not rights. See, e.g., Texas Dep ‘t of Pub.
Safetyv. Tune, 977 S.W.2d650,653 (Tex. App.-Fort Worth 1998, pet. dism’dw.o.j.). Accordingly,
the constitutional provision barring retroactive laws would not bar the Department from rescinding
a child-care facility license.
We do not determine whether a person whose criminal case was dismissed following the
successful completion of probation has been “convicted” for purposes of Department rules. Such
a determination depends upon the facts surrounding the case, its procedural history, and the law
applicable to it. C``````TEX.CODECRIM.PROC. ANN. art. 42.12,s 20(a)(2) (Vernon Supp. 1999)
(providing that defendant whose conviction is set aside following successful completionofprobation
“shall thereafter be released from all penalties and disabilities resulting from the offense or crime
of which he has been convicted or to which he pleaded guilty”), with Misdemeanor Probation Law
of 1965, Act of April 29, 1965, 59th Leg., R.S., ch. 164, § 7(b), 1965 Tex. Gen. Laws 346, 348
(repealed in 1985) (providing that conviction dismissed following successful completion of
probation could not be considered “for any purpose”); compare McLendon v. Texas Dep ‘t of Pub.
Safety, 985 S.W.2d 571,578-79 (Tex. App.-Waco 1998, pet. filed) (holding that unless licensing
statute defines “conviction” to include set-aside conviction, then set-aside conviction is not
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“conviction” for purposes oflicensing statute), with Texas Dep ‘tofPub. Safety v. Tune, 977 S.W.2d
650, 653 (Tex. App.-Fort Worth 1998, pet. dism’d w.o.j.) (holding that set-aside conviction was
“conviction” where statute defined “conviction” to include adjudication of guilt even if defendant
received probation or community supervision).
SUMMARY
The Texas Department ofprotective and Regulatory Services
may revoke the license of a child-care facility operator who was
convicted of a criminal offense.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Barbara Griffin
Assistant Attorney General - Opinion Committee