Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORXET GENERAL
OF TEXAS
Mr. Vernon M. Arrell Opinion No.JM-831
Commissioner
Texas Rehabilitation
Commission Re: Whether section 111.058
118 E. Riverside Drive of the Human Resources Code
Austin, Texas 78704-9983 authorizes the Texas Rehab-
ilitation Commission to
require applicants for
employment to provide copies
of their records on criminal
history, traffic offenses,
military service and other
matters relevant to screen-
ing applicant (RQ-1272)
Dear Mr. Arrell:
You have requested an opinion from this office. Your
request letter states:
Recently an applicant for employment with
the Commission truthfully reported, at the
time she completed her written application
for employment, that she had not been
convicted of a felony offense. After her
written application was filed, and before
her employment with the Commission, she
entered a plea of guilty to two felony
offenses.
It is the view of the Commission that
this example demonstrates the need for a
strengthened application for employment and
hiring process. Section 111.058 of the
Human Resources Code, V.T.C.A., authorizes
the Commission to secure only criminal
history information on applicants or clients
receiving services provided by the
Commission. No other law appears to
specifically authorize the Commission to
ti. 3980
Mr. Vernon M. Arrell - Page 2 6%831)
secure such information on applicants .for
employment with the Commission.
Therefore, your opinion is requested on:
1. Whether Section 111.058 of the Human
Resources Code, V.T.C.A., or any other law
or regulation prohibits the Commission from
requiring an applicant for employment with
the Commission [to produce] for inspection
by the CommissionJs personnel office a copy
of available records on the applicant which
might include a criminal history record,
traffic record, military record, and other
necessary records, as part of the applica-
tion for employment screening process: and
2. Whether, after completion of the
written application for employment in which
no felony conviction is recorded, but the
applicant has, in the interim, entered a
plea of guilty to a felony, the Commission
may terminate the new hire even though all
answers on the written application were
technically.truthful when made. In other
words, does an applicant have a continuing
duty to update his/her application with
correct information?
Section 111.058 of the Human Resources Code provides:
The commission may obtain criminal
history record information from the Board of
Pardons and Paroles, Texas Department of
Corrections, and the Texas Department of
Public Safety if the records relate to an
applicant for rehabilitation services or to
a client of the agency. The Board of
Pardons and Paroles, Texas Department of
Corrections, and the Texas Department of
Public Safety upon request shall supply the
commission criminal history record
information applying to applicants for
rehabilitation services or clients of the
commission. The commission shall treat all
criminal history record information as
privileged and confidential and for commis-
sion use only.
p. 3981
Mr. Vernon M. Arrell - Page 3 (JM-831)
In answer to your first question, statutes limiting
the powers of governmental officers and agencies are to be
narrowly construed. See. e.a Anderson v. Houchins, 99
S.W.2d 1029 (Tex. Civ. App. -'Galveston 1936, no writ); 47
Tex . Jur. 2d Public Officers 5110. Accordingly, if
section 111.058 dealt with applicants for employment with
the commission, it might be construed as the kind of
prohibition you mentioned, since it authorizes the
commission to obtain only certain information. This
section, however, applies not to applicants for employ-
ment, but to "applicant[s] for rehabilitation services or
to [clients] of the agency." It therefore has no bearing
on the issues raised in your request.
We have found no statute that expressly either
authorizes or forbids the commission to require job
applicants to submit the records listed in your first
question or to impose upon applicants the "continuing
duty" to which your second question refers. Laws that
confer powers on public officers and agencies, however,
implicitly permit that which is reasonably necessary to
implement those powers. Se , 9 Ft. Worth Cavalrv Club
v. Sheovard, 83 S.W.2d 660 TTez: ;435) ; Terre11 v. Soarks,
135 S.W. 519 (Tex. 1911). Section 111.018(a) of the Human
Resources Code states:
In carrying out his or her duties under
this chapter, the commissioner shall, with
the approval of the board,, make regulations
governing personnel standards, the
protection of records and confidential
information, the manner and form of filing
applications, eligibility, investigation,
and determination for rehabilitation and
other services, procedures for hearings, and
other regulations subject to this section as
necessary to carry out the purposes of this
chapter.
Section 111.020 provides:
(a) The commissioner shall, with the
approval of the board, establish appropriate
subordinate administrative units;
(b) The commissioner shall, under
personnel policies adopted by the board,
appoint the personnel necessary for the
efficient performance of the functions of
the agency.
p. 3982
Mr. Vernon M. Arrell - Page 4 (JM-831)
Section 111.023 provides:
The commissioner shall take other action
as necessary or appropriate to carry out the
purposes of this chapter.
In terms of the public welfare, the commission works
in a highly sensitive area. In view of this, we believe
that the authority to "make regulations governing
personnel standards," section 111.018(a), to "appoint the
personnel necessary for the efficient performance of the
functions of the agency," section 111.020, and to "take
other action as necessary or appropriate to carry out the
purposes of this chapter," section 111.023, necessarily
implies the authority to promulgate policies reasonably
calculated to insure the commission's ability to employ
only well-qualified personnel who pose no safety risk. We
further believe that this authority is sufficiently broad
to enable the commission to impose the continuing duty
mentioned in your second question and to require the
submission of the records listed in the first question.
Requiring applicants to submit this kind of background
information and to update their applications to reflect
felony guilty pleas is a measure reasonably designed to
secure suitable commission personnel.
This measure, moreover, would violate no privacy
right of a job applicant. Courts have recognized a
constitutional right not to have to disclose personal
information, a, Whalen v. Roe, 429 U.S. 589, 599 (1977),
but this right is limited. In Plante v. Gonzales, 575
F.2d 1119, 1128-36 (5th Cir. 1978), cert. denied, 439 U.S.
1129 (1979), for example, the court held that a state has
the power to compel the disclosure of otherwise private
information when its interest in that information
outweighs the individual's interest in nondisclosure. In
this instance, we believe that the Rehabilitation
Commission has a clear interest in requiring job
applicants to submit the information mentioned in your
questions, particularly in view of the sensitive nature of
the commission's work, regardless of whether that informa-
tion would otherwise be .private. This situation is akin
to that involved in Shoemaker v. Handel 619 F. Supp. 1089
(D.N.J. 1985), aff'd, 795 F:2d 1136 i3rd Cir.), cert.
denied, 107 S. Ct. 577 (1986), where the New Jersey Racing
Commission required horse racing jockeys to submit
certification forms indicating all prescription and non-
prescription medications used. Noting that the commission
maintained the confidentiality of this information with
respect to the public, the court held that the commission
P. 3983
Mr. Vernon M. Arrell - Page 5 (.x4-831)
had a legitimate interest in obtaining this information in
view of its interest in strictly regulating the racing
industry "to presence and promote its safety and
integrity." 619 F. Supp. at 1106. Because this interest
outweighed any privacy interest of the jockeys in not
having to disclose the information to the commission, the
commission's rule requiring such disclosure violated no
privacy right.
In summary, we believe that the Rehabilitation
Commission is authorized to require job applicants to
submit the records listed in your first question and to
impose on applicants the continuing duty to which your
second question refers. Requiring the disclosure of this
information to the commission would violate no privacy
right of the applicants.
SUMMARY
The Texas Rehabilitation Commission may
require job applicants to submit available
records, including criminal history,
traffic, military, and similar records, as
part of the application process, and it may
impose on applicants a duty to update their
qt;cat;;is to reflect guilty pleas entered
application was submitted.
Requiring the disclosure of this information
to the commission would violate no privacy
right of the applicants.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jon Bible
Assistant Attorney General
p. 3984