Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 10/22/1999
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn The Honorable Judith Zaffirini Chair, Committee on Human Services Texas State Senate P.O. Box 12068 Austin, Texas 78711
Re: Whether the Texas Department of Protective and Regulatory Services may rescind certain license to operate a child-care facility (RQ-0049-JC)
Dear Senator Zaffirini:
You ask whether the Texas Department of Protective and Regulatory Services may rescind the license of a child-care facility operator who was convicted of a criminal offense thirty years ago. We conclude that, under current Department rules, the Department may rescind the license of a child-care facility operator who was convicted of a criminal offense.
You are inquiring about a particular case in which a person who had been convicted of aggravated assault was granted a license to operate a child-care facility. The person pleaded guilty in 1969 to aggravated assault, which was then a misdemeanor offense but which is now a felony offense listed in Title 5 of the Penal Code. See Tex. Pen. Code Ann. §
We do not determine whether the Department may revoke the license of the particular child-care facility operator about whom you ask. This determination requires factual findings related to the criminal proceedings against the person, and we are unable to make such findings in the opinion process. Instead, we address the Department's legal authority with respect to child-care facility licensing.
With certain exceptions, no person may operate a child-care facility in Texas without a license or certificate issued by the Department of Protective and Regulatory Services pursuant to the requirements of chapter 42 of the Texas Human Resources Code. Tex. Hum. Res. Code Ann. §
As part of its licensing function, for each applicant the Department must perform a criminal history and background check and search the central registry of reported child-abuse cases.Id. §§ 42.0445, .056, .057. "The department by rule may provide for denial of an application or renewal for a licensed facility . . . or may revoke a facility's license . . . based on findings of background or criminal history as a result of a background or criminal history check." Id. § 42.072(d) (added by Act of May 23, 1997, 75th Leg., R.S., ch. 1217, § 13, 1997 Tex. Gen. Laws 4674, 4679). Consistent with the authority granted in section 42.072(d), the Department has adopted a rule providing that itmay deny or revoke a license or certificate to operate a child-care facility based on the results of a child-abuse registry search or criminal-history check. 40 Tex. Admin. Code § 725.1801(h) (1999). For certain convictions, however, the rule requires the Department to deny or revoke a license:
The department shall deny an application or renewal for a license, certificate, listing or registration or shall revoke a license, certificate, or family home's listing or registration if the results of the background or criminal history check conducted by the department show that a person has been convicted of an offense under Title 5 [offenses against the person] or 6 [offenses against the family] of the Penal Code, or chapter 43, Penal Code [public indecency], or any like offense in another state.
Id. (emphasis added). This part of the rule is also authorized, though not required, by section 42.072(d). See Tex. Gov't Code Ann. §
Another Department rule prohibits a person who has been convicted of a Title 5, Title 6, or chapter 43 offense from being present at a child-care facility while children are in care. See 40 Tex. Admin. Code § 715.407 (1999). This rule is significant to the case about which you ask because, as we understand it, the person not only holds the license but is present at the facility as an employee. Normally, a facility may receive permission from the Department not to meet a Department standard. See id. §§ 725.2023, .3067. A facility may receive a waiver of the prohibition on a convicted person having contact with children by showing to the Department's satisfaction that the person has been rehabilitated: "If an applicant . . . wishes to employ an individual in contact with children who has been convicted of a criminal offense, the applicant . . . must send a request to the director of licensing establishing that rehabilitation has occurred." Id. § 725.2027(a). If granted a waiver, the licensee must meet all conditions of the waiver. See id. § 725.2023.
But for certain offenses, permission to employ a rehabilitated convict will not be granted: "Rehabilitation will not be granted for offenses of Title 5 of the Penal Code (Offenses Against the Person); Title 6 of the Penal Code (Offenses Against the Family); and Chapter 43 of Title 9 of the Penal Code (Public Indecency)."Id. § 725.2027(c). Prior to a Department rule change in 1998, a rehabilitation waiver could be granted for any offense. We understand that because the rule was amended to prohibit rehabilitation for Title 5 offenses, the Department began license revocation proceedings against the operator about whom you ask.
We also note that a statute applying to state licenses generally authorizes a licensing authority, with a few exceptions, to revoke the license of a convicted person if the conviction directly relates to the subject of the license: "A licensing authority may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the licensed occupation." Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 53.021, 1999 Tex. Sess. Law Serv. 1431, 1447 (to be codified at chapter 53 of the Texas Occupations Code) (codifying article
It is true that the rules would appear to operate retroactively against the facility operator in this case, since they would allow the Department to revoke a license that was valid under a prior regulation. See Tex. Const. art.
We do not determine whether a person whose criminal case was dismissed following the successful completion of probation has been "convicted" for purposes of Department rules. Such a determination depends upon the facts surrounding the case, its procedural history, and the law applicable to it. Compare Tex. Code Crim. Proc. Ann. art.
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
Barbara Griffin Assistant Attorney General — Opinion Committee
Merchants Fast Motor Lines, Inc. v. Railroad Commission of ... , 573 S.W.2d 502 ( 1978 )
State v. Project Principle, Inc. , 724 S.W.2d 387 ( 1987 )
Texas Department of Public Safety v. Tune , 977 S.W.2d 650 ( 1998 )
McLendon v. Texas Department of Public Safety , 985 S.W.2d 571 ( 1998 )