Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
II’ 1 MAlTOX Decetdler 31, 1984
4 xney General
3 mm. Cowl BuildIn Woodrow W. Iliac, P.E. Opinion No.JM-290
3.0. Box 12545 Executive Director
4ur1in. TX. 7S711.2S49 Texas State Board of Registration Re: Whether the license of
5’ ‘4752501 for Professional Kngineers a registered engineer must be
TI ,x 9lWS74.1367
TemCODler 5121475O288
P. 0. Drawer 18329 revoked upon his conviction
Austin, Texas 78760 of a felony
7 Jackson. Suile 700 Dear Mr. Mize:
D61Iad. TX. 7WO2JSO9
2w7*2-S944
You ask whether the provisions of article 6252-13~. V.T.C.S., an
act relating to occupational and professional licensing of certain
4824 Alberta he.. Suite 150 persons with crimlw:l backgrounds, conflict with provisions of the
El Paso. TX. 799052792 Texas Engineering Pmctice Act, article 3271a, V.T.C.S.. regsrding the
9ll53534s4 revocation of licenses issued by the Texas State Board of Registration
for Professional Engineers. Specifically, you ask whether revocation
1001 1exalJ. suite 700 of the license of a mgistered professional engineer is mandatory upon
I uston. TX. 77002.3111 his conviction of a f$elony.
7 u222-5SS9
In 1981 the le$,islature enacted article 6252-13~. V.T.C.S. That
statute, after excluding from its application judges, lawyers, and
t I Broadway. Suite 312
1 Dbock. TX. 79401-3479
peace officers (or !,c:rsons ticeking to become such; see also V.T.C.S.
9081747.5229 6252-13d, 55). provides in section 4(a):
A liceming authority 9 suspend or revoke an
d 39 N. Tenth. Suite S
existing slid license, disqualify a person from
McAllen. TX. 7SY31-1885
512lSS2-4S47 receiving s license. or deny to a person the
opportunity to be examined for a license because
of a person’s conviction of a felouy or mis-
200 Mlkl Plua. suite 400 demeanor if the crime directly relates to the
Sm Antonlo. TX. 782062797
duties al;! responsibilities of the licensed
: Y2254191
occupatiot~ (Emphasis added).
An Equal OpportunityI Seetlon 4 (e) , howevtrr. provides:
firmath Action Employsr
Upon a Hcensee’s felony conviction, felony
probation -revocation, revocation of parole, or
revocation of mandatory supervision. his licecse
shall be ::twoked. (Emphasis added).
It has been suggested that sections 4(a) and 4(e) of article
6252-13~ are in irrmrconcilable conflict because section 4(a) indicates
that an existing valid license may be revoked for conviction of a
Mr. Woodrow W. Wire. P.E. - PdlSe 2 (311-290)
felony If the felony di,rectly relates to the duties and
responsibilities of the 1i~:ensed occupation, while eection 4(a)
requires the mandatory revocation of a license if the licensee is
convicted of 3 felony. Altematively~ it hae been suggested that
both sections may stand if rection 4(e) la read to require the
revocation of a license for a ,felony & if a determioatlon has first
been made pursuant to section 4(a) that the felony directly relates to
the duties and responsibilit~.es of the licensed occupation. We think
both provisions may stand, but for a different reaaon.
In our opinion, section 4(a) of the statute controls the
discretion given licensing boards concerning the effect of major
criminal law transgressions lyr a person before he receives a license
and the effect of his minor transgressions, whenever they occur.
Section t(e), on the other bend, controls the weight to be given by
such boards to a felony conviction that occurs while the actor is a
licensed representative of the profession or occupation. It takes
away the board’s discretion and makes revocation of the license
mandatory, In our opinion.
This difference In the operation of the two article 6252-13~
sections does not put them in conflict, although section 4(a) might be
read by itself to “allow” a permfssive revocation or suspension of an
existing license for a felony conviction upon the “directly relates”
conditions. Rules of statutory construction followed in Texas
eliminate any “conflict” wit’h the mandatory provision. for where a
permissive provision of a statute is confronted by a mandatory
provision, the permissive provision yfelds. avolding conflict. See
Langdeau v. Burke InvestmentJ&, 351 S.W.Zd 287 (Tex. Civ. App. - =
Antonio 1961), aff’d. 358 S.N.2d 553 (Tex. 1962); Kerrvflle Bus Co. v.
Continental Bus-em. 208 S.W.Zd 586 (Tex. Civ. App. - Austin 1947.
writ ref’d n.r.e.); Attorney General Opinion MU-457 (1982).
It is argued, however, citing Schware v. Board of Bar Examiners.
353 U.S. 232 (1957). thet sr1t.h an interpretation of the statute would
render it unconstitutional BUSa depriv&oo of due process or equal
protection under the federal. Conatltution - an arbitrary deprivation
of the “freedom to develop one’s talents.” See I Antieau. Modern
Constitutional Law, 13:16 at 227 (1969). ?&ware involved an
applicant for a state bar examination who was excluded therefrom
primarily for past political activities. Re also had a record of past
criminal arrests, but no convictions. The United States Supreme Court
held his exclusion on that I~sis to be improper. In our opinion, the
revocation of the license af a current licensee for conviction of a
felony offense while currently licensed is easily distinguishable.
See
- Barsky v. Board of Regerls. 347 U.S. 442 (1953).
A felony is a crime fc’r which a permissible punishment is death
or confinement in the penitentiary. See Penal Code 51.07(a)(14); P.x
parte Blume, 618 S.W.Zd 373 ‘(Tex. Cri.App. 1981). Every felony G
n. 1289
Mr. Woodrow W. hire, P:E. - PalSa 3 (JM-290)
an “infsmous” offense, the conviction of which. under common law
principles, is an indication of bad character. Bennett v. State, 5
S.W. 527 (Tex. App. 1887); g$on v. McMullen, 527 P. Supp. 711 (N.D.
Tex. 1981). The public has a right to expect. and the state haa a
legitimate interest in requkcing, that persona licensed by the state
(and thus given lta approval es warranting public confidence in their
llcenaed transactions) will be, and will ramain. persons of good
character.
It Is reasonable to require thet remote convictlons, even for
serious offenses. not aui:omatically disqualify applicants for
licenses, because applicants have not yet been looaed upon the public
as licensed practitioners of their chosen calling, and evidence of
their possible reformation or’current good character can be considered
for the purpose of refuting inferences from past felony convictions
without risk to the public. But licensed persons of bad character
pose a threat to members of the public dealing with them, and a
current felony conviction of a licensee connotes an immediate
character flaw, not some ronote transgression from which reliable
inferences of present character may be difficult to draw. See Barskx
v. Board of Regents, B. Cf. Emory v. Texas State Board of Medical
Examiners, No. 84-1353 (5th C?r Dec. 17. 1984).
In our opinion, article 6252-13~. as we interpret it. easily
meets the “rational relation:3hio” constitutional test and is at least
facially constitutional. Sue -New Orleans v. Dukes. 427 U.S. 297
(1976); United States v. Gibed, 640 F.2d 621 (5th Cir. 1981); Dixon v.
McMullen, eupra. We therefore turn to the relationship of article
6252-13~. V.T.C.S., and art1c:l.e 3271a. V.T.C.S., the Texas Engineering
Practice Act.
The pertinent provisioa,s of the Texas Engineering Practice Act
are found in sections 8 and X2. Section 8(a) confers on the Board of
Registered Professional Engineers the authority and power to “make and
enforce all rules and regulations necessary . . . to establish
standards of conduct and lt’h:lcs of engineers. . . .” Section 22 in
part provides:
Sec. 22. The Eoard shall revoke. suspend, or
refuse to renev a registration, shall reprimand a
registrant. or may probate any suspension of any
registrant who is jiound guilty of:
(a) The pral:tice of any fraud or deceit lo
obtaining a ceri::lficate of registration;
(b) Any gross negligence. incompetency, or
misconduct in the practice of professional
engineering asi a registered professional
engineer; or
Mt. Woodrou W. Mize. P.E. - Pafle 4 (JM-290)
(c) A violatj.cln of this Act or a Board
rule.
Conviction of A felony is not -- aeide from any board rule that might
touch the subject - an expraes basis for licenaa revocationunder the
Texae Rngineerlng Practice AI:!:. Certainly, that statute does not
expreaaly mandate the ravocatlon of an englnacr’a registration upon
his conviction of m felony.
These sectionsof the Texas Engineering Practice Act and article
6252-13~s V.T.C.S., are ~p;uci materiar and must be read together
(and the law applied) AA thou@ rhep were parts of the same act. See
53 Tex. Jur. 2d Statutes $186. at 281. vhen so read, the same rn-
that resolved the “conflict” between the two provisions of article
6252-13~ also resolves any apr’srent conflict here.
To the extent that article 6252-13~ mandates the revocation of a
license or registration for causes which article 3271a does not
address or for vhlch article 3271s permits revocation (but does not
require it), article 6252-13~ controls. To the extent that the Texas
Engineering Practice Act maidlatea the revocation of an engineer’s
registration for causes not a~ldressad by article 6252-13~ or cauaea
for vhich article 6252-13~ permits revocation, but does not require
it, article 3271s controls. Set Langdeau v. Burke Investment Co.,
supra; Kerrville Bus Co. v. _(:ontlnental Bus System, supra; Attorney
General Opinion MW457 (1982).
In our opinion, therefore!, it is mandatory that the Taxas State
Board of Registration for Professional Engineers revoke the
registration of a registered professional engineer upon his conviction
of a felony vhile so licensed.
It is mandatory ,that the Texas State Board of
Registration for Professional Engineers revoke the
registration of a zeglstered professional engineer
upon his convictiom. of s felony while so licensed.
J-b
Very truly yo
.
-
JIM HATTOX
Attorney General of Texas
TOMGREFN
First Assistant Attorney Genl,ral
p. 1291
Mr. Woodrow W. Mire. P.E. - Page 5 (m-290)
DAVID R. RICBARDS
Executive Assistant Attorney General
RICR GILPIN
Cbaiaman, Opinion Comittee
Prepared by Bmce Youngblood
Assistant Attorney Ganeral
APPROVED:
OPINIONCOEMITTEE
Rick Gilpin. Chairman
Colln Carl
Susan Garrison
Tony Guillory
Jennifer Riggs
Bmce Youngblood