n
October 22, 1990
Mr. Ron Lindsey Opinion No. JM-1237
Commissioner
Texas Department of Re: Scope of criminal history
Human Services investigations of employees in
P. 0. Box 149030 certain facilities licensed by
Austin, Texas 78714-9030 the Texas Department of Health
or under contract with the
Texas Department of Human Ser-
vices (RQ-2137)
Dear Mr. Lindsey:
You have requested our opinion regarding legislation
enacted by the 71st Legislature which relates to criminal
history checks of employees in certain facilities serving
the elderly or disabled.
Section 106.003(a) of the Human Resources Code
provides:
The Texas Department of Human Services, on
behalf of the Texas Department of Health, is
entitled to obtain criminal conviction
records maintained by the Department of
Public Safety or the Federal Bureau of
Investigation Identification Division to
investigate an employee or a person applying
for employment at a facility.
See Hum. Res. Code 9 106.001 (defining 81facility1V)..
This provision applies to employees of various
facilities, licensed by the Department of Health, including
nursing homes, home health agencies, adult day care.
facilities, and facilities for the mentally retarded. L
A facility is prohibited from offering permanent
employment to any person, except those licensed under other
law, unless it first furnishes personal identifying informa-
tion to the Department off Human Services. Id. 0 106.00:(a),
(b) . When the info?mation has been furnished, the
p. 6580
Mr. Ron Lindsey - Page 2 (JM-1237)
Department of Human Services iS required to request the
Department of Public Safety to conduct a criminal conviction
check on the individual. Id. § 106.004(c). Temporary
employment is permitted, so long as the facility initiates a
criminal conviction check within 72 hours after the
individual accepts the temporary employment. With certain
exceptions,1 a facility is prohibited from hiring any person
if the records show that he or she has been convicted of an
offense listed in section 106.003(b). See id. § 106.008(a).
Criminal conviction checks are somewhat limited by section
106.002, which provides:
(a) If a facility is part of a large
complex of buildings, the requirement of a
criminal conviction check under this chapter
applies only to a person who will work
primarily in the immediate boundaries of the
facility.
(b) This chapter applies to an employee or
a person applying for employment at a home
health agency only if the employee or person
is or will be employed in a position the
duties of which involve direct contact with a
consumer of home health services.
However, in addition to being recuired to run checks on most
aoolicants for employment, a facility is emnowered, although
not required, to run a check on "any person employed" there,
including one licensed under other law and one exempt under
section 106.002(b). Seeid. 5 106.004(d). A facility is
also required under section 106.008(a) to "immediately
terminate" a person's employment if the results of the
criminal conviction check reveal that the person has been
convicted of an offense listed under section 106.003(b).
Section 106.003(b) limits the types of offense which
automatically bar permanent employment and which require
termination. The applicable offenses are. limited to the
following:
(1) ,a misdemeanor or felony classified as
an offense against the person or the family:
1. Id. 5 106.008(b), (c).
*
p. 6581
Mr. Ron Lindsey - Page 3 (JM-1237)
(2) a misdemeanor or felony classified as
public indecency;
(3) a felony violation of a statute
intended to control the possession or distri-
bution of a substance included in the Texas
Controlled Substances Act (Article 4476-15,
Vernon's Texas Civil Statutes):
(4) a felony violation of Section 31.03,
Penal Code;
(5) robbery or aggravated robbery, as
described by Chapter 29, Penal Code; or
(6) burglary, as described by section .
30.02, Penal Code.
You indicate that some of the listed offenses are Class
C misdemeanors, specifically the following provisions of the
Penal Code:
5 21.06. Homosexual Conduct.
0 22.01(a)(2). Threatening another with
bodily harm.
5 22.01(a)(3). Causing physical contact
with another that may be
reasonably regarded as
offensive or provocative.
§ 22.08. Aiding Suicide.
5 22.10. Leaving a child in a
vehicle.
§ 43.22. Displaying or distributing
obscene material.
You express concern that the required dismissal of permanent
employees and the bar of permanent employment to applicants
convicted of a Class' C misdemeanor may conflict with section
12.03(c) of the Penal Code, which provides:
Conviction of a Class C misdemeanor does not
impose any legal disability or disadvantage.
Section 12.03(c) is a long-standing feature of the
penal laws. According to the Practice Commentary, it is
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Mr. Ron Lindsey - Page 4 (JM-12,37)
designed to ensure that @'conviction of a Class C (justice
court) misdemeanor does not deprive the defendant of his
rights to vote, hold public office, serve on a jury, or
other rights of citizenship." Searcy & Patterson, Practice
Commentaq Tex. Penal Code Ann. 8 12.04 (Vernon 1974).
Even if w& were to construe a bar of employment at a
facility for the elderly or disabled as a "legal disability
or disadvantage,** however, it is clear that the employment
restrictions of chapter 106 of the Human Resources Code
would control over section 12.04.
In the first place, they are the more specific enact-
ments, since they deal only with restrictions on employment
at a certain kind of "facility." Section 311.026 of the
Government Code provides:
(a) If a general provision conflicts with
a special or local provision, the provisions
shall be construed, if possible, so that
effect is given to both.
(b) If the conflict between the general
provision and the special or local provision
irreconcilable, the special or local
t:ovision prevails as an exception to the
general provision, unless the general provi-
sion is the later enactment and the manifest
intent is that the general provision prevail.
The employment restrictions of the Human Resources Code were
enacted in 1989. Section 311.025(a) of the Government Code
provides:
Except as provided by Section 311.031(d), if
statutes enacted at the same or different
sessions of the legislature are irreconcil-
able, the statute latest in date of enactment
prevails.
Thus, it is clear, both from the rule that the specific
prevails over the general, and the rule that "the statute
latest in date of enactment prevails, * that section 12.03(c)
of the Penal Code cannot control over the employment
restrictions of chapter 106 of the Human Resources Code.
You also express concern about a potential conflict
between the employment bar of chapter 106 and section 23 of
article 42.12 of the Code of Criminal Procedure. That
statute provides:
p. 6583
Mr. Ron Lindsey - Page 5 (JM-1237)
At any time, after the defendant has
satisfactorily completed one-third of the
original probationary period or two years of
probation, whichever is the lesser, the
period of probation may be reduced or termi-
nated by the court. Upon the satisfactory
fulfillment of the conditions of probation,
and the expiration of the period of proba-
tion, the court, by order duly entered, shall
amend or modify the original sentence
imposed, if necessary, to conform to the
probation period and shall discharge the
defendant. In case the defendant has been
convicted or has entered a plea of guilty or
a plea of nolo contendere to an offense other
than an offense under Subdivision (2) I
Subsection (a), Section 19.05, Penal Code, or
an offense under Article 67011-1, Revised
Statutes, and the court has discharged the
defendant hereunder, such court may set aside
the verdict or permit the defendant to
withdraw his plea, and shall dismiss the
accusation, complaint, information or
indictment against such defendant, who shala
thereafter be released from all venalties and
dis
*r '
CLr' e w * convicted to
Phich he has oleaded guiltv, except that:
(1) proof of his said conviction or plea
of guilty shall be made known to the court
should the defendant again be convicted of
any criminal offense; and
(2) if the defendantis an applicant for a
license or is a licensee under Chapter 42,
Human Resources Code, the Texas Department of
Human Services may consider the fact that the
defendant previously has received probation
under this section 'in issuing, renewing,
denying, or revoking a license under that
chapter. (Emphasis added).
The "all penalties and disabilities@' provision of
section 23 is apparently equivalent to the "legal disability
or disadvantage" language of section 12.03 of the Penal
Code. More than 20 years ago, when section 23 was part of
section 7 of article 42.12, this office considered the
extent of a release from "all penalties and disabilities."
p. 6584
,
Mr. Ron Lindsey - Page 6 (JM-1237)
Attorney General Opinion M-640 (1970) said that an
individual who qualified under this provision:
may serve on a jury or vote at an election
provided that he is otherwise qualified.
These are civil rights which the statute
seeks to restore to such defendant.
The opinion emphasized, however, that since
no provision is made for expunging the
"judgment of conviction" from the record, the
statute makes it clear that the "conviction"
itself has not been entirely erased.
The opinion then addressed the specific question asked:
The right of such a defendant to state to his
prospective employer that he has never been
convicted is not dealt with in the statute.
Employers are entitled to know the truth
about their prospective employees, and this
the statute has not taken away. Such is not
a O'penalty" or "disability" which was
released by the statute. It is, therefore,
concluded that such person cannot state in an
application of employment that he had never
been "convicted of a felony."
In our opinion, the denial of employment in a
1'facility8q under chapter 106 of the Human Resources Code is
not the kind of penalty or disability contemplated by
section 23 of article 42.12 of the Code of Criminal
Procedure. In addition, the same considerations that are
applicable to your first question are also present here.
The employment restrictions of chapter 106 are more
specific, and they were enacted later, than the restoration
of civil rights provision of section 23. We conclude,
therefore, that section 23 cannot prevail over the
employment restrictions of chapter 106 of the Human
Resources Code.
SUMMARY
Neither section 12.03(c) of the Penal Code
nor section 23 of article 42.12, Code of
Criminal Procedure, acts as a limitation on
chapter 106 of the Human Resources Code,
which bars the employment, in certain facili-
ties serving the elderly or disabled, of
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Mr. Ron Lindsey - Page 7 (JM-1237)
persons who have been convicted of certain
felonies and misdemeanors listed in chapter
106.
JIM MATTOX
Attorney General of Texas
MARYXELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STHARIBY
Special Assistant Attorney General
RENEA HICXS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 6586
Untitled Texas Attorney General Opinion
Combined Opinion