Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MAlTOX April 23, 1986
Attorney General
Supreme Court Buildin Mr. Bob E. BradleT Opidion No. m-482
P. 0. Box 12548 Executive Director
Austin, TX. 78711. 254Q
Texas State Board of Public Ret Reconsideration of Attorney
512l4752501
letox 91ols74-1357 Accountancy General Opinion 34-290 (1984).
Telecopier 512i475025Q 1033 La Posada, Su,Lte 340 which construed article 6252-13c,
Austin, Texas 10’152 V.T.C.S., to require a licensiog
agency to revoke the license of any
714 Jackson. Sulle 700
Dallas. TX. 75202.4505
individual convicted of a feloty
2w?42a944
Dear Mr. Bradley:
4S24 Alberta Ave., Suite 150 You have asked for advice about implementing Attorney General
El Paso. TX. 79905.2793
915633as4
Opinion JM-290 (1984). which interpreted article 6252-13c, V.T.C.S.,
to require a licensing board to revoke au individual's license upon
his conviction o:i a felony while licensed. Your opinion request has
1001 Texas. Suite 700 caused us to reconsider the conclusion resched in Attorney General
Houston. TX. 77002~3111 Opinion JM-290 (1984).
713122~5886
Article 625:!-13c, V.T.C.S.. was enacted as section 1 of Senate
808 Broadway. Suite 312 Blll No. 247 by the Sixty-seventh Legislature. Acts 1981, 67th Leg.,
Lubbock. TX. 79401.3479 ch. 267 at 694. Senate Bill No. 247 also included as section 2 the
SOw747.5238 provisions codified as article 6252-13d, V.T.C.S. The legislation
enacted as Senate Bill No. 247 reads in part:
4309 N. Tenth. Suite S
MCAhl. TX. 78501-1685 Artlclo 6252-13~
512mQ2e47
. . *, .
200 Main Plaza, Suite 400
San Antonlo, TX. 7.52052797 Set, 4. (a) A licea stng authority may suspend
51Y225-4191 or revske au existing valid license, disqualify
a person from receiving a license, or deny to a
person 1:he opportunity to be examined for a license
An Equal OpportunityI
becauw of a persou's conviction of a felony or
Affirmative Action Employer
u&de&&or if the crime directly relates to the
dutieslaud responsibilities of the licensed occupa-
tion.
(b) In determining whether a criminal convic-
tion directly relates to au occupation. the
licenstag authority shall consider:
p. 2204
Mr. Bob E. Bradley - Page 2 (JM-482)
(1) the natur,e and seriousness of the crime;
(2) the relationship of the crime to the
purposes for requl.rlng a license to engage la the
occupatioo;
(3) the extent to which a license might offer
an opportunity t,o engage in further criminal
activity of the same type as that in which the
person previously had been Involved; and
(4) the relat:ionship of the crime to the
ability, capacit:r,, or fitness required to perform
the duties and discharge the responsibilities of
the licensed occupation.
(c) In addition to the factors chat may be
considered under Subsection (b) of this section.
the,liccnsing authority, in determining the present
fitness of a pewon who has been convIcted of a
crime, shall conlr%der the folloving evidence:
(1) the extmt and nature of the person’s past
criminal actlvit:r:;
(2) the age of the person at the time of the
cormcission of the crime;
(3) the amount of time that has elapsed since
the person’s last criminal activity;
(4) the conduct and work activity of the person
prior to and follovlng the criminal activity;
(5) evidence of the person’s rehabilitation or
rehabilitative effort while incarcerated or
following releare;
(6) other c:vidence of the person’s present
fitness, 1nclud:ing letters of rectmeendation from:
prosecution, liw enforcement, and correctional
officers who prosecuted, arrested, or had custodial
responsibility for the perscn; the sheriff and
chief of police in the community where the person
restdes; and any other persons In contact with the
convicted person;; and
(7) it sha’L:L be the responsibility of the
applicant to the extent possible to secure and
p. 220s
Mr. Bob E. Bradley - Page 3 11JM-482)
. l
provide to the llceasing authority tht recomenda-
tions of the pI,ostcution, law lnforcextnt, and
correctional authorities as required under this
Act. . . .
(d) Proceedingis held before a statt licensing
authority to establish factors contained ID this
section are governed by the Administrative
Proctdure and Texas Register Act, a6 amended
(Article 6252-13a, Vernon’s Texas Civil Statutes).
(e) Qon’a lictnste’s felony conviction, felony
probation revocation, revocation of parole, or
revocation of &datory supervision. his license
shall be revoked.-
Art. 6252-13d.
Section 1. [Adds art. 6252-13~1
2. If t. licensing
stc. authority suspends or
revokes 6 valid- license or denies a ptrson a
license or the Opportunity to be examined for a
licenst because t? the person’6 prior conviction of
a crime and the ?relationship of the crime to the
license. the licensing authority shall notify the
person in writing;:
(1) of the reasons for the suspension,
revocation, denial., or disqualification;
(2) of the rwiew procedure provided by Section
3 of this Act; and
(3) of the earliest date that the person may
appeal.
Sec. 3. [ rev,Lev procedure]
Sec. 4. (a) Each llctnsing authority. shall
issue vithin six month6 after the effective date of
this Act guidelines relating to the actual practice
of the authority in carrying out Section 1 of this
Act. . . ,
sec. 5. This Act shall not apply to those
persons licensed by the TtX66 State Board of
Medical Examiners,, State Board of Pharmacy, State
Board of Dents]. Examiners, or The Veterinary
p. 2206
.
Mr. Bob E. Bradley - Page 4 I:JM-482) .
Licensing Act . . . and vho have been convicted of
a felony under the Texas Controlled Substances
Act . . . or the Texas Dangerous Drug Act. . . .
(Emphasis added; citations omitted from section 5
of article 6252-l?'d, V.T.C.S.). (Emphasie added).
Section 4(a) of article 6252-13~ appeare on its face to be
inconsistent vith other provisions of Eouse Bill Ro. 247; in fact,
sect&m 4(e) appears to be radically inconsistmt In tone with the
entire rest of the bill. Section 4(a) of article 6252-13c, V.T.C.S..
States that a l~censlng au:hority mua suspend or revoke an existing
license because of a felonI, conviction If the crime directly relates
to the duties and respouslbllitles of the licensed occupation.
Section 4(e) of that statute, however, states that upou a licensee's
felony conviction, his license shall be revoked. This latter
provision suggests that the, licansi~thority has a mandatory duty
to revoke a license vhen its holder Is finally convicted of a felony,
and that the board has no dJ;scretion to act otherwise in such cases.
Attorney General Opinion J'B-290 (1984) addressed the conflict between
section 4(a) and section 4(e) and determined that section 4(e) did in
fact Impose a mandatory duty on licensing agencies to revoka the
license of a convicted feltm. It read section 4(a) as applicable to
felony convictions occurr1.n.g before the individual applied for a
license, and section 4(c) as applicable to felony convictions
occurr%ng while licensed.
This opinion did not address other conflicting provisions in
Rouse Bill No. 247. Sect%,>115 of article 6252-13d. V.T.C.S., states
that the act does not apply to certain licensees In health professions
who have been convicted of a felouy under the Texas Controlled
Substances Act, article 4476-15, V.T.C.S.. or the Texas Dangerous Drug
Act, article 4476-14, V.T.C.S. The licenses of the enumerated medical
practitioners are subject to mandatory revocation for a felony
conviction under either ari:Lcle 4476-14 or article 4476-15. V.T.C.S.
arts. 4495b. 14.01 (physic:Lans); 4542a, 112A (pharmacists); 4549-l
(dentists); 7465a. 114 (v~,terlnarians); matted by Acts 1981, 67th
Leg., ch. 52 at 101. If Bouse Bill Bo. 247 In fact mandates license
revocatlou upon a felony couvlction in all cases, the exception In
section S of article 6:!52-13d is meaningless surplusage. The
inclusion of this axception suggests that the legislature did not
Intend to require revocation of all occupational and professional
licenses upon the felony c,mviction of the licensee. The courts have
looked to exceptions in statutes to determine the class of persons
covered by the statute. Sm. e.g., State v. Richards. 301 S.W.2d 597
Dowlearn 489 S.W.2d 140 (Tex. Civ. App.
~TZw~90~)[j4St%$%~'vrit refri n.r.e.).
Moreover, section 2 of article 6252-13d, V.T.C.S., requires
written notification of a person "[iIf a llcens%ng authority suspends
p. 2207
Mr. Bob F. Bradley - Page 5 (JM-482)
or revokes a valid license . . . because of the perscn’s prior
conviction of a crime and the relationship of the crime to the
license. . . .” Thus, section 2 of article 6252-13d, V.T.C.S., appears
to be inconsistent vith suction b(e) of article 6252-13~. V.T.C.S.,
yet another ambiguity in Eause Bill go. 247.
Attorney General Opln:.on JM-290 did not investigate the leglsla-
rive histcry of Bouse Bill ho. 247, vhich we now believe Is essential
to an understanding of this enactment. Tn construing an ambiguous
statute, vhich Bouse Bill No. 247 undoubtedly is, ve may look to
circumstances of its passage that relate to legislative intention.
Texas 6 N.O.R. Co. v. Railroad Commission, 200 S.W.2d 626 (Tax. 1947).
If the meanine of a stat& la ic doubt, reference mav be made to
legislative joirnals and rwordb , debates, and committee reports. F.ed
River National Bank v. Faq~, 206 S.W. 923 (Tax. 1918); kiCiOiiiii
Carloading Corp. V. Phoenix El Paso Expresg, 178 S.W.2d 133 (Tex. Civ.
APP. - El Paso), aff’d, 1% S.W.2d 564 (Tex. 1943)) cert. denied 322
E.S. 747 (1044); Pane. Bassett, 235 S.W. 917 (Tex. Civ. AT.-- El
Paso 1921, no vr*-. We turn to an examination of the legislative
history of Sousa Bill No. 2,47, as a guide to construing the language
of section 4 (e) .
Eouse Bill No. 247, ss Introduced, was very similar to bills
enacted in the two prior r,essions, only to be vetoed by the governor.
S.B. No. 1182, 65th Leg. (1977); R.B. No. 590, 66th Leg. (1979). See
also S.J. of Tex., 65th Leg., R.S., at 2634 (1977); H.J. of Tex., 66th
Leg., R.S., at 5292 (197!1); Vetoed Bills 8 Resolutions, Acts 1977.
65th Leg., R.S. at 3375; Vetoed Bills h Resolutions, Acts 1979, 66th
Leg., R.S.. at 3250. The bill as introduced, and the bills from the
two prior sessions, ware clj.rected at making liceneed occupations open
to rahabilitatsd exoffer,ders. Kouse Committee on Security and
Sanctions, Eill Analysis to R.B. No. 247. 67th Leg. (1981). As
introduced, Rouse Bill No,. 247 did not Include the language found in
section 4(e) of article 6:!52-13~; the prototype of this provision wae
added by the Bouse Commitl:ee on Security and Sanctions. P.J. of Tex.
67th Leg., R.S. at 783 1:1981). The bill prohibited e licensing
authority from suspending or revokfng an existing valid license
because of prior conviction of a crime unless the crime directly
related to the duties and responsibilities of the licensed occupation.
Eoreover, It also provided that a license could not be suspended or
revoked for conviction XE a crime that directly related to the
occupation as long as the person showed present fitness and
rehabilitaticn following MS release from a correctional facility.
The 1979 version of house Bill No. 247 was vetoed by the governor
because of its provision for licensing an exoffender whose crime
directly related to the licensed occupation. The veto message stated
that the standards for reln~bilitation wera too low
p. 2208
.
Mr. Bob E. Bradley - Page 6 (JK-482)
Criteria like satisfactory completion of parole,
one year lapse s,ince release from prison, or
letters of reference are certainly not sufficient
to establish real rehabilitation.
Veto Message of Governor Clamants. Tex. E.B. No. 590, 66th Leg.
(1979).
House Bill No. 247 as it passed the Eouse included provisions for
rehabilitation Identical to those which caused the governor’s veto of
the prior bill. It also included the predecessor of section b(e) of
article 6252-13~. V.T.C.S.:
(f) On a 1l:ansee’s final conviction of a
felony after thl? issuance of his license, the
license shall be revoked. A person whose license
is revoked under this subsection may not receive
or be examined for any license.
This language was added an a committee amendment, without objection,
and adooted as a floor amendment. again without objection. R.J. of
Tex., 67th Leg., R.S.. 7f3, 1227 (i981); Bearing on B.B. NO. 247,
Before the Eouse Commitreezn Security and Sanctions, 67th Leg. (March
11, 1981).
Discussion in the Senate was directed at correcting the problem
vhich led to the governoz’s veto. Discussion In the Senate State
Affairs Committee characterized Eouse Bill No. 247 as permitting
license reinstatement for persons vith occupational licenses who are
discharged from the Deps&ent of Corrections. Bearing on B.B. No.
247 Befora the Senate Stake Affairs Committee, 67th Leg. (April 27,
1981). The Senate commiwee adopted a committee substitute vhich
deleted provisions allowing anyonewdischarged from sentence to get his
license back automatically,. Id. Instead, it required the licensing
board to review the case anddetermine that the offense vas not
related to the profession or occupation and that the Individual had
achieved rehabilitation. Unless both conditions were met. the
individual’s license would not be reinstated. Senate floor debate on
the committee substitute also emphasized that it allowed the licensing
boards to reinstate lic``nses of exoffendere under the statutory
criteria. Debate on E.B. No. 247 on the Floor of the Senate, 67th
Leg. (May 15, 1981). Thu,r,, a person who had an occupational license
before sentence could apply for reinstatement of his licensing after
incarceration, vhile persons who learned a trade in prison would have
to apply for a license like anyone else. -Id.
The Senate approved an amendment conforming the caption to the
body of the bill and v0i.e.d to pass Rouse Bill No. 247 as amended.
p. 2209
Mr. Bob E. Bradley - Pege 7 l(JH-482)
S.J. of Tex. 67th Leg., R.S. at 1287-1290. The Eousa concurred in the
Senate amendment. B.J. of ‘Alex.. 67ch Leg., R.S. at 2982-2986.
Throughout Senate confideration of the committee substitute to
Eouse Bill No. 247 It contained the troublesome language codified as
section 4(e) of article 62X!-13~. V.T.C.S.:
(e) Upon a liccusee’s felony conviction, felony
probation revocadon, revocation of parole, or
revocation of mandatory supervision, his license
shall be revoked, (Emphasis added).
The “licensee’s felony confliction” In section b(e) should be limited
to a felony conviction which results in the licensee’s actual
incarceration in the Department of Corrections or another peniten-
tiary. An axamination of s,xction 4(e) as a vhole shows that the other
events requiring license “revocation” under section b(e) apply to
s-one who is already a c:anvicted felon and whose conduct requires
him to be incarcerated or raincarcerated in the penitentiary. Section
b(e) implies that a convicts-d felon on probation or parole or under
mandatory supervision may hold a license that will be revoked when his
probation, parole, or mandatory supervision is revoked. We believe
section 4(e) requires license suspension only while the felon is
physically incarcerated: Section b(e) of article 6252-13~. V.T.C.S.,
thus does not apply to s licensee placed on probation after a felony
conviction; the licensing board’s authority to discipline the licensee
in such cases is governed by the permissive provisions of section 4(a)
through 4(d) of article 6252-13~. V.T.C.S.
Section 4(e) of artLcle 6252-13~. V.T.C.S., does require a
license to be revoked when the licensee’s felony conviction results in
his incarceration, or vhen his felony probation, parole, or mandatory
supervision is revoked. Licenses revoked under section b(e) are,
hovever , subject to possible reinstatement following the procedures
found in section 4(a) th::ough 4(d). The legislature consistently
characterizes House Bill No. 247 as providing for rainstatement of an
exoffender’s license. If an individual’s license Is revoked under
section 4(e). he may not 1~: required to reapply and qualify for the
licensee as a first-time annlicant %n order to resume his former
status as a licensee. Set! cxas h N.O.R.G. v. Railroad Commission,
supra (when the 1eglsLat-I;; purpose is ascertainad, the significance
of words may be restricted or enlarged to give meaning the legislature
intended). Whether an exoffender’s license will be reinstated is to
be determined in accordancr: with sections 4(a) through 4(d) of article
6252-13~. V.T.C.S.
In summary, the mande,tory license revocation provisipn found in
section 4(e) applies in a narrower class of felony convictions than
suggested la Attorney General Opinion JM-290. Moreover, an individual
p. 2210
Mr. Bob E. Bradley - Page 8 '(m-482)
whose license is revokad purcuant to section b(e) of article 6252-13~.
V.T.C.S.. may seek relnstattalent under the procedures of that statute.
Attorney General Opinion N-290 is overruled to the extent it IS
Inconsistent with this opidon.
We turn to your specffia questions. You esk bow the State Board
of Public Accountancy should apply Attorney Ganeral Opinion JM-290 in
carrying out its duties under article bla-1. V.T.C.S., the Public
Accountancy Act of 1979. WI: will address your questions in accordance
with the interpretation of article 6252-13~. V.T.C.S.. given in this
opinion.
Your first two questlow are as follows:
1. Does Attorney General Opinion 311-290 extend
to -all licensees of the Texas State Board of
Public Accountancy, or
2. Does Attorney General Opinion JM-290 apply
only to individuals receiving certificates and
original licenses after the effective date of
article 6252-13c, V.T.C.S.?
Article 6252-13c, V.T.C.S., applies to all licensees of .. the Texas
State Board of Public Accountancy. Tte board is a "licensing
authority" subject to the set. See V.T.C.S. art. 6252-13~. II; see
also V.T.C.S. art. 6252-,13a, s?Ti), (4) (defining "agency" and
"licensing" for purposes of article 6252-13~. V.T.C.S.). The excep-
tions to article 62S2-13c, V.T.C.S.. vhich cover the Supreme Court,
persons licensed under its authority, and any person vho Is or seeks
to become a peace officer, d,o not apply to licensees of your board.
Article 6252-13~. V.T.,C.S., applies to all licenses issued by the
Texas State Board of Public: Accountancy, and not onLy to licenses held
by individuals who were first licensed after the effective date of the
statute. Article 4(e), the provision requiring revocation of licenses,
.applies to the following events occurring after tLw effective date of
article 6252-13~. V.T.C.S.: the licensee's felony convictions
resulting in incarceraticn, and the revocation of his probation,
parole, or mandatory supc~vision. See Government Personnel Mutual
Life Insurance Co. v. Weal;,, 251 S.W.2d525 (Tax. 1952) (statutes are
presumed to operate prospc:nively).
Your questions number ,three and seven are as follows:
3. Assuming the answer to question No. 1 is
affirmative and the board is requtred to amend
Substantive Rule 525, what vould be the effective
p. 2211
Mr. Bob E. Bradley - Page 9 (JM-482)
date for implementation of the revocation policy
(e.g., "Pan adoption of article 6252-13~.
V.T.C.S., upon acllendwnt of board rules to Include
revocation of s license for conviction of a
felony, etc.)?
7. If the e~!fective date for implementation
were upon adoption of article 6252-13~. V.T.C.S.,
would a 'grandfat,her clause' excluding individuals
licensed between the effective date for implemen-
cation and the drte of amendment of board mles be
acceptable?
Since your stateroent &out amending Substantive Rule 525 is based
on the interpretation of article 6252-13~. V.T.C.S., given in Attorney
General Opinion J'M-290, we believe you should consider the question of
amendment in light of this opinion.
Article 6252-13c, V.I.C.S.. became effective September 1, 1981.
Inolementation of a statuta begins with its effective date, and the
board may not postpone the affective date by promulgating a mle. See
State v. Jackson, 376 S.W.:!d 341 (Tex. 1964); Attorney General CpinG
W-204 (1980).
Your fourth and fifth questions are as follows:
4. If the h;uswer to question No. 1 is
affirnative. 1~u:31:all renewal applications for
licenses with tlhe board be submitted to the
Zlcpartaent of Public Safety for a check of
conviction records?
5. What check of conviction records must the
board n&e on !.l.censees living outside of Texas
and what check of records musr rhr board uake on
federal convictions?
Section 3 of article 6252-13~. V.T.C.S.. provides as follows:
Sec. 3. All agencies of this state and its
political subdfi,isions with the duty and responsi-
bility of licensing and regulating members of
particular tradl?s, occupations, businesses. voca-
tions, or profe:3siors shall have the authority to
obtain from the Texas Department of Public Safety
or from a local law enforcercent agency the record
of any convictj,on of any perscr. applying for or
holding a licenru: from the requesting agency.
p. 2212
I
Mr. Bob E. Bradley - Page 10 (JM-482)
This provision authorizes. blat does not require, a licensing agency to
obtain conviction records fr:ow the Texas Department of Public Safety
or * local law enforcement agency. Prior to the enactment of article
6252-13~. V.T.C.S., the Public Accountancy Act authorized the revoca-
tion of licenses upon "final conviction of a felony under the laws of
any state or the United States." (Emphasis added). V.T.C.S. art.
41a-1, 521(S). See Acts 1FK 57th Leg., ch. 289. at 608, 617.
Presumably the box obtain& information about felony convictions to
use in exercising this power under its enabling statute, and it nay
continue to use the sane sources of infomation to implement section
4(e) of article 6252-13~. Moreover, the mandatory duty to revoke a
license for a felony conviction applies only when the conviction
results in incarceration. Thus ( records of admissions to state
prisons could be another source of information for the board.
Your sixth question is contingent on different answers frox those
we gave. Accordingly, we nc.ed not answer it.
Your eighth question 11; as follows:
8. Would the revocation procedure require the
board hearing process as specified in the Public
Accountancy Act cf 1979. as amended, sections 21
and 22?
Only sectton 22 of articlle 41a-1, V.T.C.S., sets out a hearing
procedure. Section 21 stiltes conduct for which a license may be
suspended OK revoked, and directs that section 22 shall be followed.
We will limit our answer to the portions of these statutes governing
procedures. Section 4(d) of article 6252-13~. V.T.C.S., states that
(d) Proceedings held before a state licensing
authority to est,~blish factors contained in this
section are governed by the Administrative Pro-
cedure and Texas Register Act, as amended (Article
6252-13a, Vernon's Texas Civil Statutes).
The Administrative Procedure Act sets out the procedural rules
for establishing factors included in section 4 of article 6252-13~.
V.T.C.S. The board may f,>:Llow procedures set out in section 22 of
article 41a-1, V.T.C.S., tc, the extent these are not inconsistent with
the Administrative Procedum Act.
SUMMARY
Section 4(a) of article 6252-13c, V.T.C.S.,
requires a licensing agency to suspend a license
upon a licensee's felony conviction which results
in incarceration, or upon revocation of his felony
p. 2213
Mr. Bob E. Bradley - Page 11 (JM-482)
probation. parol.e,. or mandatory supervision.
Attorney General Opinion JM-290 (1984) is over-
ruled to the extmt it is inconsistent with this
opinion.
Veryltruly yours.
t&c
JIM MATTOX
Attorney General of Texas
JACK BIGBTOWER
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
ROBERTGRAY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opiniou Comittec:
Prepared by Susan L. Garrlrmn
Assistant Attorney General
p. 2214