Untitled Texas Attorney General Opinion

The Honorable John M. Lawrence, III Opinion No. H- 683
President, State Bar of Texas
P. 0. Box 12487, Capitol Station Re: Whether Department of
Austin, Texas 78711 Public Safety may provide
criminal history informa-
The Honorable Wilson Speir, Director tion to State Bar and
Texas Department of Public Safety Department of Public
P. 0. Box 4087 Welfare for licensing
Austin, Texas 78173 purposes.
Dear Mr. Lawrence and Colonel Speir:
Each of you has requested our opinion as to whether the Department of
Public Safety has authority to provide criminal history record information
to certain state agencies for licensing purposes. The State Bar of Texas
seeks criminal history record information concerning applicants for admis-
sion to the Bar; the Department of Public Welfare seeks only information
concerning felony and selected misdemeanor convictions of child care
administrator applicants and licensees.
The question here is not whether this information may be relied upon
as the basis for a licensing decision. Procedural due process requires
notice and hearing and confrontation of one’s accusers. See Willner v.
Committee on Character and Fitness of New York, 373 UT 96, LO5 (1963);
Greene v. McElroy, 360 U.S. 474 (1959). The only question is whether
the Department of Public Safety may provide such information to the State
Bar and the Department of Public Welfare to assist them in their investi?
gative responsibilities,
The Department of Public Welfare has a duty to license and regulate
administrators of child-caring institutions. Eligibility for a license requires
among other qualifications evidence of “good moral character, ethical commit-
ment, and sound physical and emotional health and maturity. II V. T. C. S.
art. 695a-1, $3. Section 7 of this licensing act provider:
p. 2971
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 2
The department may revoke a child care
administrator’s license if it finds that the licensee:
(1) has been convicted of a felony;
(2) has been convicted of a misdemeanor
involving fraud or deceit. , . .
Obviously, grounds for revocation of a license constitute grounds
for denial of an initial license. We believe that this express authority
to take action on the basis of certain convictions necessarily includes
authority to investigate and obtain information concerning such convic-
tions. It is a cardinal rule of statutory construction that the’statutory grant
of an express power carries with it by necessary implication every other
power necessary and proper to the execution of the power expressly
granted. Anderson v. Brandon. 47 S. W. 2d 261, 262 (Tex. Sup. 1932);
Imperial Irr. Co. v. Jayne, 138 S. W. 575 (Tex. Sup. 1911); Terre11 v.
Sparks, 135 S. W. 519 (Tex.Sup. 1911); Brown v. Clark, 116 S. W. 360(Tea Sup. 1909).
Thus, it is our opinion that the Department of Public Welfare has
authority to obtain information as to whether applicants for a child care
administrator license, or license holders have been convicted of a
felony or certain misdemeanors.
The Supreme Court licenses persons to practice law in Texas. V. T. C. S.
art. 306. The Board of Law Examiners is responsible for determining the
eligibility of candidates for admission to the Bar and recommending qualified
persons to the Supreme Court. V. T. C. S. art. 305. The Supreme Court
has by rule imposed a duty on the Board, the State Bar and District Com-
mittees on Admissions to investigate the qualifications of applicants for
admission to the Bar. Rules Governing Admission to the Bar, Rules III
E. H. J, R, L, M; VIIr; IX; XI1 (c),(g) (1974).
Good moral character is an essential qualification for admission to the
Bar. V. T. C. S. arts. 305. 306. 307A. 307B. 308. Rules Governing
Admission to the Bar, Rules II, III, VIII, XII.
p. 2972,
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 3
Criminal conduct of an applicant for admission to the Bar is relevant
to an investigation of the person’s qualifications. Article 311, V. T. C. S.,
absolutely bars from admission any person who has been convicted of a
felony. Upon conviction for a “felony involving moral turpitude or of
any misdemeanor involving the theft, embezzlement, or fraudulent appro-
priation of money or other property,” an attorney shall be suspended during
pendency of any appeal, and shall be disbarred upon final conviction.
V. T. C. S. art. 320a-1, 5 6. Obviously, grounds for disbarment are
grounds for denial of initial admission. See Hallinan v. Committee of Bar
Examiners of the State Bar, 421 P. Zd 76, 81 (Cal. 1966).
The State Bar’s legitimate interest in criminal history information is
not limited to convictions. “Conduct not descending to the level of guilt
of the violation of a criminal statute may well present an insuperable
obstacle to admission to the Bar if such conduct evinces a lack of that
‘character and general fitness requisite for an attorney and counsellor-
at-law. “’ Application of Cassidy, 51 N. Y. S. td 202, 206 (N. Y. App. Div.
1944), aff’d, 73 N. E. 2d 41 (N. Y. 1947). See 7 C. J.S. Attorney & Client
97, p. 713.
It is within the discretion of the Supeme Court to deny admission
to the Bar on the grounds that an applicant made materially faalse statements
in his application for admission. See Rules Governing State Bar of Texas,
art. 12 5 5 DR l-101, DR l-102. Certainly the State Bar’s investigatory
authority includes obtaining information which will verify statements
made by an applicant concerning charges of criminal conduct made
against him and their disposition.
An administrative agency with investigative duties may take steps to
inform itself on matters within its jurisdiction, such as whether there is
probable violation of the law, or just to assure itself there is none. United
States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950). We believe the
State Bar may obtain information such as that contained in crininal history
records held by another state agency in the course of its investigation. Such
information may suggest areas of further investigation. -See Application
of Levine, 397 P. 2d 205, 208 (Aria. 1964).
p. 2973
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 4
The Department of Public Safety has a duty to collect and file for
record information concerning convicted felons, well-known and habitual
criminals, the number and nature of offenses known to have been committed
in the State, of the legal steps taken in connection therewith, “and such
other information as may be useful in the study of crime and the administra-
tion of justice. ” V. T. C. S. art. 4413(14).
We believe that the general public policy of this State is that state
agencies should cooperate in the interest of efficiency and economy in the
administration of their statutory duties. See V. T. C. S. arts. 441?(23),
4413(32); 695c, $4(S).
We need not reach the question of whether some of the information
requested is excepted from general public disclosure under the Open Records
Act, article 6252-17a, V. T. C. S. In Attorney General Opinion H-242 (1974).
we said:
. . . Our office has previously recognized the need
to maintain an unrestricted flow of information
between state agencies. See Attorney General
Opinion M-713 (1970). The Open Records~ Act does
not undercut that policy. Information which is not
required to be disclosed to the public under the Act
can still be transferred between state agencies with-
out violating its confidentiality or destroying its
confidential character.
In addition we note that the Supreme Court Rules Governing Admission
to the bar expressly make information received in investigation of moral
character and fitness confidential. Rule II D.
p. 2974
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 5
We are aware of the growing concern about the misuse of incomplete,
inaccurate, or irrelevant criminal history record information. The
potential for harm to the individual concerned increases as modern tech-
nology makes such information more accessible through nationwide
criminal history record information systems. See generally, Tarlton
v. Saxbe, 507 F. 2d 1116(D. C. Cir. 1974); Menard v. Saxbe, 498 F. 2d
1017 (D. C. Cir. 1974); Menard v. Mitchell, 430 F. 2d 486 (D. C. Cir.
1970); Gregory v. Litton Systems, Inc., 316 F.Supp. 401 (C. D. Cal.
1970), modified, 472 F. 2d 631 (9th Cir. 1972); Davidson v. Dill, 503
P. 2d 157 (Colo. 1972); Henry v. Looney. 317 N. Y. S. 2d 848 (Sup. Ct. 1971);
Monroe v. Tielsch, 525 P. 2d 250 (Wash. 1974); Eddy v. Moore, 487 P. 2d
211 (Wash. App. 1971); Comment, Branded: Arrest Records of the Uncon-
victed, 44 Miss. L. J. 928 (1973); Comment, Retention and Dissemination
of Arrest Records: Judicial Response, 38 U. Chi. L. Rev. 850 (1971);
Hess & LePoole, Abuse of the Record of Arrest Not Leading to Convic-
tion, 13 Crime & Delinquency 494 (1967).
However, the Department of Public Welfare seeks only information
concerning convictions. At least as to convictions in Texas, this informa-
tion is public when held by the court clerk or other person responsible
for filing it. See Code Crim.Proc. arts. 1.24, 2.21, 42.01, 42.02, 45.13,
.45.49; V.T. Cx arts. 1200, 1899, 1945, 2383, 3930. It is not necessary
here to decide whether the public nature of this information is transformed
by virtue of the compilation of it in a centralized and vastly more accessible
form. The Department of Public Welfare is authorized to make decisions
on the basis of convictions, and we believe it is clear that it can obtain
information concerning convictions from another state agency which compiles
it.
The request of the State Bar is broader, arrl asks for all criminal
history record information which the Department of Public Safety holds
or to which it has access. This information may include notations of
convictions, indictments, informations, or other formal charges of
criminal conduct, dispositions arising from such charges such as acquittal
by reason of insanity, incompetency to stand trial, pardons, probation before
convictions, no bill, nolle prosequi, charge dismissed, and a Mriety of other
possible conclusions to criminal proceedings. It may also include information
as to arrest without any indication of further action or disposition.
p. 2975
. .
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 6
The United States Supreme Court, in Schware v. Board of Bar
Examiners, 353 U.S. 232, 241 (1957) has said:
The mere fact that a man has been arrested has
very little, if any, probative value in showing that
he has engaged in any misconduct. An arrest shows
nothing more than that someone probably suspected
the person apprehended of an offense. When formal
charges are not filed against the arrested person and
he is released without trial, whatever probative force
the arrest may have had is normally dissipated.
This language is pertinent to the Bar’s evaluation of information, but
we do not believe it can be read so as to preclude inquiry and investigation
into potentially relevant areas, reflected in official records of alleged or
proven misconduct.
While the State Bar and Department of Public Welfare have authority
to obtain this information they seek and no state law restricts the Depart-
ment of Public Safety from providing it, applicable federal statutes and
regulations do limit dissemination of criminal history information in some
instances.
As a participant in the Federal Bureau of Investigation’s National Crime
Information Center and as a recipient of Law Enforcement Assistance
Administration funds, the Department of Public Safety has certain contrac-
tual obligations and is subject to recent regulations issued by the Attorney
General of the United States pursuant to various federal statutes concerning
the dissemination of criminal history record information. 28 C. F. R. § 20.1et seq., 40 Fed. Reg. 22114 (1975) (effective June 19, 1975).
Under these regulations, the Department of Public Safety is under a
duty to limit dissemination of criminal history record information to:
(1) Criminal justice agencies, for purposes of
the administration of criminal justice and criminal
justice agency employment:
p. 2976
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 7
(2) Such other individuals and agencies which
require criminal history record information to
implement a statute or executive order that
expressly refers to criminal conduct and contains
requirements and/or exclusions expressly based
upon such conduct;
. . . .
(6) Individuals and agencies where authorized by
court order or court rule.
28 C. F. R. 5 20.21(b).
The regulations also provide in section 20. 33 as follows:
(a) Criminal history record information contained
in any Department of Justice criminal history
record information system will be made available:
. . . .
(3) Pursuant to Public Law 92-544 (86 Stat. 115)
for use in connection with licensing or local/state
employment or for other uses only if such dis-
semination is authorized by Federal or state statutes
and approved by the Attorney General of the United
States. . . .
The Director of the Federal Bureau of Investigation has been given
authority to approve exchanges of identification records with State and local
governments for purposes of empl.oyment and licensing. 28 C. F. R. 5 0.85(j)
(1974).
It is our view that the Department of Public Welfare’s child care
administrator licensing statute brings it precisely within the terms of
28 C. F. R. $2-.21(b)(Z), in that the statute “expressly refers to criminal
conduct and contains express requirements and/or exclusions expressly
based upon such conduct. ‘I V. T. C.S. art. 695a-1, § 7.
It is apparent that the State Bar of Texas is within several categories of
those agencies to whom criminal history record information may be dis-
seminated.
p. 2977
. . .
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 8
In our opinion, the Department of Public Safety has authority to
cooperate with the Department of Public Welfare and the State Bar of
Texas by providing those agencies with the information they have
requested and which the Department of Public Safety holds.
To the extent that the federal regulations discussed are applicable to
all or part of the information you hold or to which you have access through
contractual arrangements, it is our view that the Department of Public
Welfare and the State Bar are within the categories of agencies described
in the federal regulations as those to whom dissemination is permissible.
In order to avoid questions as to applicability or possible breach of con-
tractual provisions, the Department of Public Safety should request the
Attorney General of the United States, through the Director of the Federal
Bureau of Investigation, to approve the dissemination of that criminal
history record information to which the regulations are applicable to
these agencies pursuant to 28 C. F. R. $20. 33; E 28 C. F. R. 5 0.85(j).
Upon receipt of this approval, which we believe should be forthcoming,
the Department of Public Safety may provide the requested information
to the State Bar and thenDepartment of Public Welfare under such terms
and conditions as are reasonable and necessary to accomplish such inter-
agency cooperation. See
- V. T.C.S. art. 4413(32).
Colonel Speir also asks in reference to the Department of Public
Welfare’s request, what misdemeanors involve fraud and deceit within
the meaning of section 7 of article 695a-1, V. T. C. S. In our opinion,
this refers to offenses which include fraud or deceit as an element of the
offense.
Without attempting to be exhaustive, and by way of example only,
depending upon the circumstances of the particular offense, misdemeanor
offenses such as those defined in Penal Code chapters 31 (theft), 32 (fraud),
37 (perjury and other falsification) may involve fraud and deceit.
p. 2978
-. . .
. . ’
..
The Honorable John M. Lawrence, III (H-683)
The Honorable Wilson Speir
Page 9
SUMMARY
The Department of Public Safety may provide
criminal history information to the State Bar of Texas
and the Department of Public Welfare to assist them
in their licensing responsibilities. The approval of
the Attorney General of the United States should be
sought to disseminate criminal history record
information from the National Crime Information
Center System to these agencies.
Very truly yours,
/\
// JOHN L. HILL
u Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2979