Untitled Texas Attorney General Opinion ( 1971 )

Mr. Thomas W. Brown, Administrator OPiniOn 140. 6 884
Texas Board of Private Detectives,
Private Investigators, Private RC?: Construction of Article
Patrolmen, Private Guards and 4413 (29bb1, V.C.S.
Managers with reqard to denial
509 Sam Houston State Office Bldq. of license to a person
Austin, Texas 78701 convicted of a felony.
Dear Mr. Brown:
In your recent letter you have referred to Artic',le
4413 (29bb),,Vernon's Civil Statutes, specifically to Sections
3(a) and 18 o,fthat statute, and reque~stedour opinion as to
whether your Board can deny a license to an applicant on the
ground that he or she is a convicted felon reqardles,sof the
date of the conviction,
Section 18 provides, in part, as follows:
"After a hearing the board may deny a license
unless the applicant makes a sh,awinqsatisfactory
to the board that the applicant, if an individual,,
has not, or if the applicant is a person other than
an individual, tha:t its manager and each of its of-
ficers, directors, and partners,have not
'I (11,. . .
” (2) ., . .
U (3~)committed,any act resultlnq in conviction
of a felony or a crime 'involvingmoral turpitude;"
We are of the ooinian that this provIsion of the
statute makes discretionary with the Doard the question of
whether a license will be denied because af conviction of a
felony. The applicable rule of sratutory construction is
stated in 53 Texas Jurisprudence 2d 31-32, Section 16 as follows:
-4310-
4 .
Mr. Thomas W. Brown, paqe 2 (M-884)
II
. . .
On the other hand, 'may' ordinarily
connotes discretion or permission, and it will not
be treated as a word of command unless there is
something in the context or subject matter of the
act to indicate that it was used in that sense.”
In accord, see Attorney General opinion No. V-753
(1948).
Section 3(a) of Article 4413 (29bb) reads, in part,
as follows:
"(a) A person is entitled to applv for a
License under this Act who
"(1) . . .
"(2) . . .
"(3) is of good moral character and temperate
habits, who is not a convicted felon;"
--.-.~- (Emphasis
added.)
Strictly read, Section 3(a) would conflict with Section
18, but we are of the opinion that the later Section 18 controls
and modifies Section 3(a) and is, therefore, the controlling
language with respect to the discretion qiven the Board in the
matter of a felony conviction.
This interpretation is given Sec,tion3(a) under the
rule of construction stated in 53 Texas Jurisprudence Zd,
Statutes, Section 160, pase 231, as follows:
"Each Dart of the statute is to be considered
in connection with every other part and with the
entire enactcent, in order to produce a harmonious
whole and to reach the true lenislative intent.
. . . It follows that a nrovision will not be
given a meaning out of harmonv with other pro-
visions and inconsistent with the purpose of,the
act, thouqh it would be susc~eptibleof such con-
struction if standinq alone."
-4311-
. . . ,
..
.
,
Mr. Thomas W. Drown,,.paqe3 7 (M-884)
No reason exists for including in Section 18 a pro-
vision that the Board mav refuse a license because~of a felony
conviction if the LeqiGture had intended to,completely bar
such person at the application stage. Such inclusion would be
futile. Section 3(a) of the statute does not have any application
to those persons whose felony convictions have been pardoned,
since the operation and effect of a full pardon is to remove all
penal consequences and legal disabilities incident to the con-
viction. 44 Tex. Juris. 2d 13, Pardons, Reprieve, etc., Sec. 12,
and cases there cited. We hold that the Board may, in its
discretion under Section 18, grant a license to a,,convicted
felon who has not received a full pardon.
Your letter in effect inquires whether the Board may
consider the time elapsed since a felonv conviction. We are of
the opinion that the Board may consider this fact, along with
the letters required of the police department and shoriff',s
department under Section 34, and that the Board mav weigh all
the relevant facts called for under the statute in exercising
its discretionary powers. ,,
Having considered the elapsed time and all~other
relevant facts, it is within the legal power of ,the,Board,to
grant or deny the license.
SUMMARY
Article 4413 (29bb), Vernon's Civil Statutes,
makes discretionary with the Board of Private
Detectives, Private Investigators, Private Patrol-
men, Private Guards and Managers, the decision as
to whether a license as a private detective, private
investigator, private patrolman, or private guard
will be denied because of conviction of a felony,
and the Board may consider the lapse of time since
a conviction alonq with all other matters required
or authorized by the statute.
.,./
Vef$~trulp yours,
-4312-
Mr. Thomas W. Brown, page 4 (M-884)
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Larry Craddock
J. C. Davis
Malcom Smith
Scott Garrison
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-4313-