Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 23,2004
The Honorable Carlos I. Uresti Opinion No. GA-0170
Chair, Human Services Committee
Texas House of Representatives Re: Whether a state representative may represent
P.O. Box 2910 a criminal defendant in an administrative license
Austin, Texas 78768-2910 revocation hearing (RQ-0 126-GA)
Dear Representative Uresti:
You ask whether a state representative may “represent a criminal defendant in an
administrative license revocation hearing.“’
Section 572.052(a) of the Government Code was amended in 2003 to read as follows:
(a) A member of the legislature may not, for compensation,
represent another person before a state agency in the executive branch
of state government unless the representation:
(1) is pursuant to an attorney-client
relationship in a criminal law matter; or
(2) involves the filing of documents that
involve only ministerial acts on the part of the
commission, agency, board, department, or officer.
TEX. GOV’T,CODE ANN. 4 572.052(a) (Vernon Supp. 2004) (emphasis added); see also id.
8 572.002(7) (defining “person” as “an individual or a business entity”). At first glance, subsection
(a)(l) may seem anomalous. Certainly, a criminal law matter may be relevant to a licensing
proceeding. See TEX. OCC.CODEANN. 8 53.02 1(b) (Vernon 2004) (“A license holder’s license shall
be revoked on the license holder’s imprisonment following a felony conviction, felony community
supervision revocation, revocation of parole, or revocation of mandatory supervision.“). On the
other hand, proceedings “before a state agency” are not a matter of “criminal law.” Rather, they are
generally referred to as “contested cases” and are governed by the Administrative Procedure Act,
‘Letter from Honorable Carlos I. Uresti, Chair, Human Services Committee, Texas House of Representatives,
to Nancy Fuller, Chair, Opinion Committee, Office of the Attorney General (Dec. 2, 2003) (on file with Opinion
Committee).
The Honorable Carlos I. Uresti - Page 2 (GA-0170)
chapter 2001 of the Government Code. “Contested case” is defined as “a proceeding, including a
ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a party are to
be determined by a state agency after an opportunity for adjudicative hearing.” TEX. GOV’T CODE
ANN. 8 2001.003(l) (Vernon 2000). “‘Licensing’ includes a state agency process relating to the
granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a
license.” Id. 9 2001.003(3). Subchapter C of chapter 2001 sets forth the rules of procedure for a
contested case, while section 2001.08 1 declares that “[tlhe rules of evidence as applied in a nonjury
civil case in a district court of this state,” with the proviso that evidence inadmissible under judicial
rules may, under certain circumstances, be admissible in a contested case hearing. Id. fj 2001.081.
In construing a statute, whether or not ambiguous, a court may consider the legislative history
of its enactment. Id. 8 3 11.023 (Vernon 1998). The House Cornmittee Report on House Bill 1606,
which enacted section 572.052(a) of the Government Code, indicates the legislative intent behind
the statute’s enactment:
C.S.H.B. 1606 amends the current prohibition against a member of
the legislature representing another person for compensation before
a state agency in the executive branch of government by (1)
eliminating the existing exceptions to the prohibition and adding
instead a new exception allowing for the continued representation of
another person for compensation in an administrative proceeding that
arises out of the same facts from which a criminal proceeding in
which the member represented the person arose . . . .
HOUSESELECTCOMM. ON ETHICS,BILLANALYSIS,Tex. H.B. 1606,78th Leg., R.S. (2003). This
language makes clear the meaning of the phrase “pursuant to an attorney-client relationship in a
criminal law matter.” A legislator who haspreviously represented a licensee in a criminal law matter
may continue to represent the licensee in any license revocation hearing that is predicated upon the
same facts as the original criminal proceeding. According to the language of the bill analysis,
representation in the criminal matter must precede the legislator’s representation of the licensee in
the license revocation hearing.
The Honorable Carlos I. Uresti - Page 3 (GA-0170)
SUMMARY
If a legislator has previously represented a licensee in a
criminal law matter, he or she may continue to represent the licensee
in any license revocation hearing that arises out of the same facts as
the underlying criminal proceeding.
Yours very truly,
of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee