Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAlTOX April 23, 1986 Attorney General Supreme Court Buildin Mr. Bob E. BradleT Opidion No. m-482 P. 0. Box 12548 Executive Director Austin, TX. 78711. 254Q Texas State Board of Public Ret Reconsideration of Attorney 512l4752501 letox 91ols74-1357 Accountancy General Opinion 34-290 (1984). Telecopier 512i475025Q 1033 La Posada, Su,Lte 340 which construed article 6252-13c, Austin, Texas 10’152 V.T.C.S., to require a licensiog agency to revoke the license of any 714 Jackson. Sulle 700 Dallas. TX. 75202.4505 individual convicted of a feloty 2w?42a944 Dear Mr. Bradley: 4S24 Alberta Ave., Suite 150 You have asked for advice about implementing Attorney General El Paso. TX. 79905.2793 915633as4 Opinion JM-290 (1984). which interpreted article 6252-13c, V.T.C.S., to require a licensing board to revoke au individual's license upon his conviction o:i a felony while licensed. Your opinion request has 1001 Texas. Suite 700 caused us to reconsider the conclusion resched in Attorney General Houston. TX. 77002~3111 Opinion JM-290 (1984). 713122~5886 Article 625:!-13c, V.T.C.S.. was enacted as section 1 of Senate 808 Broadway. Suite 312 Blll No. 247 by the Sixty-seventh Legislature. Acts 1981, 67th Leg., Lubbock. TX. 79401.3479 ch. 267 at 694. Senate Bill No. 247 also included as section 2 the SOw747.5238 provisions codified as article 6252-13d, V.T.C.S. The legislation enacted as Senate Bill No. 247 reads in part: 4309 N. Tenth. Suite S MCAhl. TX. 78501-1685 Artlclo 6252-13~ 512mQ2e47 . . *, . 200 Main Plaza, Suite 400 San Antonlo, TX. 7.52052797 Set, 4. (a) A licea stng authority may suspend 51Y225-4191 or revske au existing valid license, disqualify a person from receiving a license, or deny to a person 1:he opportunity to be examined for a license An Equal OpportunityI becauw of a persou's conviction of a felony or Affirmative Action Employer u&de&&or if the crime directly relates to the dutieslaud responsibilities of the licensed occupa- tion. (b) In determining whether a criminal convic- tion directly relates to au occupation. the licenstag authority shall consider: p. 2204 Mr. Bob E. Bradley - Page 2 (JM-482) (1) the natur,e and seriousness of the crime; (2) the relationship of the crime to the purposes for requl.rlng a license to engage la the occupatioo; (3) the extent to which a license might offer an opportunity t,o engage in further criminal activity of the same type as that in which the person previously had been Involved; and (4) the relat:ionship of the crime to the ability, capacit:r,, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. (c) In addition to the factors chat may be considered under Subsection (b) of this section. the,liccnsing authority, in determining the present fitness of a pewon who has been convIcted of a crime, shall conlr%der the folloving evidence: (1) the extmt and nature of the person’s past criminal actlvit:r:; (2) the age of the person at the time of the cormcission of the crime; (3) the amount of time that has elapsed since the person’s last criminal activity; (4) the conduct and work activity of the person prior to and follovlng the criminal activity; (5) evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or following releare; (6) other c:vidence of the person’s present fitness, 1nclud:ing letters of rectmeendation from: prosecution, liw enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the perscn; the sheriff and chief of police in the community where the person restdes; and any other persons In contact with the convicted person;; and (7) it sha’L:L be the responsibility of the applicant to the extent possible to secure and p. 220s Mr. Bob E. Bradley - Page 3 11JM-482) . l provide to the llceasing authority tht recomenda- tions of the pI,ostcution, law lnforcextnt, and correctional authorities as required under this Act. . . . (d) Proceedingis held before a statt licensing authority to establish factors contained ID this section are governed by the Administrative Proctdure and Texas Register Act, a6 amended (Article 6252-13a, Vernon’s Texas Civil Statutes). (e) Qon’a lictnste’s felony conviction, felony probation revocation, revocation of parole, or revocation of &datory supervision. his license shall be revoked.- Art. 6252-13d. Section 1. [Adds art. 6252-13~1 2. If t. licensing stc. authority suspends or revokes 6 valid- license or denies a ptrson a license or the Opportunity to be examined for a licenst because t? the person’6 prior conviction of a crime and the ?relationship of the crime to the license. the licensing authority shall notify the person in writing;: (1) of the reasons for the suspension, revocation, denial., or disqualification; (2) of the rwiew procedure provided by Section 3 of this Act; and (3) of the earliest date that the person may appeal. Sec. 3. [ rev,Lev procedure] Sec. 4. (a) Each llctnsing authority. shall issue vithin six month6 after the effective date of this Act guidelines relating to the actual practice of the authority in carrying out Section 1 of this Act. . . , sec. 5. This Act shall not apply to those persons licensed by the TtX66 State Board of Medical Examiners,, State Board of Pharmacy, State Board of Dents]. Examiners, or The Veterinary p. 2206 . Mr. Bob E. Bradley - Page 4 I:JM-482) . Licensing Act . . . and vho have been convicted of a felony under the Texas Controlled Substances Act . . . or the Texas Dangerous Drug Act. . . . (Emphasis added; citations omitted from section 5 of article 6252-l?'d, V.T.C.S.). (Emphasie added). Section 4(a) of article 6252-13~ appeare on its face to be inconsistent vith other provisions of Eouse Bill Ro. 247; in fact, sect&m 4(e) appears to be radically inconsistmt In tone with the entire rest of the bill. Section 4(a) of article 6252-13c, V.T.C.S.. States that a l~censlng au:hority mua suspend or revoke an existing license because of a felonI, conviction If the crime directly relates to the duties and respouslbllitles of the licensed occupation. Section 4(e) of that statute, however, states that upou a licensee's felony conviction, his license shall be revoked. This latter provision suggests that the, licansi~thority has a mandatory duty to revoke a license vhen its holder Is finally convicted of a felony, and that the board has no dJ;scretion to act otherwise in such cases. Attorney General Opinion J'B-290 (1984) addressed the conflict between section 4(a) and section 4(e) and determined that section 4(e) did in fact Impose a mandatory duty on licensing agencies to revoka the license of a convicted feltm. It read section 4(a) as applicable to felony convictions occurr1.n.g before the individual applied for a license, and section 4(c) as applicable to felony convictions occurr%ng while licensed. This opinion did not address other conflicting provisions in Rouse Bill No. 247. Sect%,>115 of article 6252-13d. V.T.C.S., states that the act does not apply to certain licensees In health professions who have been convicted of a felouy under the Texas Controlled Substances Act, article 4476-15, V.T.C.S.. or the Texas Dangerous Drug Act, article 4476-14, V.T.C.S. The licenses of the enumerated medical practitioners are subject to mandatory revocation for a felony conviction under either ari:Lcle 4476-14 or article 4476-15. V.T.C.S. arts. 4495b. 14.01 (physic:Lans); 4542a, 112A (pharmacists); 4549-l (dentists); 7465a. 114 (v~,terlnarians); matted by Acts 1981, 67th Leg., ch. 52 at 101. If Bouse Bill Bo. 247 In fact mandates license revocatlou upon a felony couvlction in all cases, the exception In section S of article 6:!52-13d is meaningless surplusage. The inclusion of this axception suggests that the legislature did not Intend to require revocation of all occupational and professional licenses upon the felony c,mviction of the licensee. The courts have looked to exceptions in statutes to determine the class of persons covered by the statute. Sm. e.g., State v. Richards. 301 S.W.2d 597 Dowlearn 489 S.W.2d 140 (Tex. Civ. App. ~TZw~90~)[j4St%$%~'vrit refri n.r.e.). Moreover, section 2 of article 6252-13d, V.T.C.S., requires written notification of a person "[iIf a llcens%ng authority suspends p. 2207 Mr. Bob F. Bradley - Page 5 (JM-482) or revokes a valid license . . . because of the perscn’s prior conviction of a crime and the relationship of the crime to the license. . . .” Thus, section 2 of article 6252-13d, V.T.C.S., appears to be inconsistent vith suction b(e) of article 6252-13~. V.T.C.S., yet another ambiguity in Eause Bill go. 247. Attorney General Opln:.on JM-290 did not investigate the leglsla- rive histcry of Bouse Bill ho. 247, vhich we now believe Is essential to an understanding of this enactment. Tn construing an ambiguous statute, vhich Bouse Bill No. 247 undoubtedly is, ve may look to circumstances of its passage that relate to legislative intention. Texas 6 N.O.R. Co. v. Railroad Commission, 200 S.W.2d 626 (Tax. 1947). If the meanine of a stat& la ic doubt, reference mav be made to legislative joirnals and rwordb , debates, and committee reports. F.ed River National Bank v. Faq~, 206 S.W. 923 (Tax. 1918); kiCiOiiiii Carloading Corp. V. Phoenix El Paso Expresg, 178 S.W.2d 133 (Tex. Civ. APP. - El Paso), aff’d, 1% S.W.2d 564 (Tex. 1943)) cert. denied 322 E.S. 747 (1044); Pane. Bassett, 235 S.W. 917 (Tex. Civ. AT.-- El Paso 1921, no vr*-. We turn to an examination of the legislative history of Sousa Bill No. 2,47, as a guide to construing the language of section 4 (e) . Eouse Bill No. 247, ss Introduced, was very similar to bills enacted in the two prior r,essions, only to be vetoed by the governor. S.B. No. 1182, 65th Leg. (1977); R.B. No. 590, 66th Leg. (1979). See also S.J. of Tex., 65th Leg., R.S., at 2634 (1977); H.J. of Tex., 66th Leg., R.S., at 5292 (197!1); Vetoed Bills 8 Resolutions, Acts 1977. 65th Leg., R.S. at 3375; Vetoed Bills h Resolutions, Acts 1979, 66th Leg., R.S.. at 3250. The bill as introduced, and the bills from the two prior sessions, ware clj.rected at making liceneed occupations open to rahabilitatsd exoffer,ders. Kouse Committee on Security and Sanctions, Eill Analysis to R.B. No. 247. 67th Leg. (1981). As introduced, Rouse Bill No,. 247 did not Include the language found in section 4(e) of article 6:!52-13~; the prototype of this provision wae added by the Bouse Commitl:ee on Security and Sanctions. P.J. of Tex. 67th Leg., R.S. at 783 1:1981). The bill prohibited e licensing authority from suspending or revokfng an existing valid license because of prior conviction of a crime unless the crime directly related to the duties and responsibilities of the licensed occupation. Eoreover, It also provided that a license could not be suspended or revoked for conviction XE a crime that directly related to the occupation as long as the person showed present fitness and rehabilitaticn following MS release from a correctional facility. The 1979 version of house Bill No. 247 was vetoed by the governor because of its provision for licensing an exoffender whose crime directly related to the licensed occupation. The veto message stated that the standards for reln~bilitation wera too low p. 2208 . Mr. Bob E. Bradley - Page 6 (JK-482) Criteria like satisfactory completion of parole, one year lapse s,ince release from prison, or letters of reference are certainly not sufficient to establish real rehabilitation. Veto Message of Governor Clamants. Tex. E.B. No. 590, 66th Leg. (1979). House Bill No. 247 as it passed the Eouse included provisions for rehabilitation Identical to those which caused the governor’s veto of the prior bill. It also included the predecessor of section b(e) of article 6252-13~. V.T.C.S.: (f) On a 1l:ansee’s final conviction of a felony after thl? issuance of his license, the license shall be revoked. A person whose license is revoked under this subsection may not receive or be examined for any license. This language was added an a committee amendment, without objection, and adooted as a floor amendment. again without objection. R.J. of Tex., 67th Leg., R.S.. 7f3, 1227 (i981); Bearing on B.B. NO. 247, Before the Eouse Commitreezn Security and Sanctions, 67th Leg. (March 11, 1981). Discussion in the Senate was directed at correcting the problem vhich led to the governoz’s veto. Discussion In the Senate State Affairs Committee characterized Eouse Bill No. 247 as permitting license reinstatement for persons vith occupational licenses who are discharged from the Deps&ent of Corrections. Bearing on B.B. No. 247 Befora the Senate Stake Affairs Committee, 67th Leg. (April 27, 1981). The Senate commiwee adopted a committee substitute vhich deleted provisions allowing anyonewdischarged from sentence to get his license back automatically,. Id. Instead, it required the licensing board to review the case anddetermine that the offense vas not related to the profession or occupation and that the Individual had achieved rehabilitation. Unless both conditions were met. the individual’s license would not be reinstated. Senate floor debate on the committee substitute also emphasized that it allowed the licensing boards to reinstate lic~~nses of exoffendere under the statutory criteria. Debate on E.B. No. 247 on the Floor of the Senate, 67th Leg. (May 15, 1981). Thu,r,, a person who had an occupational license before sentence could apply for reinstatement of his licensing after incarceration, vhile persons who learned a trade in prison would have to apply for a license like anyone else. -Id. The Senate approved an amendment conforming the caption to the body of the bill and v0i.e.d to pass Rouse Bill No. 247 as amended. p. 2209 Mr. Bob E. Bradley - Pege 7 l(JH-482) S.J. of Tex. 67th Leg., R.S. at 1287-1290. The Eousa concurred in the Senate amendment. B.J. of ‘Alex.. 67ch Leg., R.S. at 2982-2986. Throughout Senate confideration of the committee substitute to Eouse Bill No. 247 It contained the troublesome language codified as section 4(e) of article 62X!-13~. V.T.C.S.: (e) Upon a liccusee’s felony conviction, felony probation revocadon, revocation of parole, or revocation of mandatory supervision, his license shall be revoked, (Emphasis added). The “licensee’s felony confliction” In section b(e) should be limited to a felony conviction which results in the licensee’s actual incarceration in the Department of Corrections or another peniten- tiary. An axamination of s,xction 4(e) as a vhole shows that the other events requiring license “revocation” under section b(e) apply to s-one who is already a c:anvicted felon and whose conduct requires him to be incarcerated or raincarcerated in the penitentiary. Section b(e) implies that a convicts-d felon on probation or parole or under mandatory supervision may hold a license that will be revoked when his probation, parole, or mandatory supervision is revoked. We believe section 4(e) requires license suspension only while the felon is physically incarcerated: Section b(e) of article 6252-13~. V.T.C.S., thus does not apply to s licensee placed on probation after a felony conviction; the licensing board’s authority to discipline the licensee in such cases is governed by the permissive provisions of section 4(a) through 4(d) of article 6252-13~. V.T.C.S. Section 4(e) of artLcle 6252-13~. V.T.C.S., does require a license to be revoked when the licensee’s felony conviction results in his incarceration, or vhen his felony probation, parole, or mandatory supervision is revoked. Licenses revoked under section b(e) are, hovever , subject to possible reinstatement following the procedures found in section 4(a) th::ough 4(d). The legislature consistently characterizes House Bill No. 247 as providing for rainstatement of an exoffender’s license. If an individual’s license Is revoked under section 4(e). he may not 1~: required to reapply and qualify for the licensee as a first-time annlicant %n order to resume his former status as a licensee. Set! cxas h N.O.R.G. v. Railroad Commission, supra (when the 1eglsLat-I;; purpose is ascertainad, the significance of words may be restricted or enlarged to give meaning the legislature intended). Whether an exoffender’s license will be reinstated is to be determined in accordancr: with sections 4(a) through 4(d) of article 6252-13~. V.T.C.S. In summary, the mande,tory license revocation provisipn found in section 4(e) applies in a narrower class of felony convictions than suggested la Attorney General Opinion JM-290. Moreover, an individual p. 2210 Mr. Bob E. Bradley - Page 8 '(m-482) whose license is revokad purcuant to section b(e) of article 6252-13~. V.T.C.S.. may seek relnstattalent under the procedures of that statute. Attorney General Opinion N-290 is overruled to the extent it IS Inconsistent with this opidon. We turn to your specffia questions. You esk bow the State Board of Public Accountancy should apply Attorney Ganeral Opinion JM-290 in carrying out its duties under article bla-1. V.T.C.S., the Public Accountancy Act of 1979. WI: will address your questions in accordance with the interpretation of article 6252-13~. V.T.C.S.. given in this opinion. Your first two questlow are as follows: 1. Does Attorney General Opinion 311-290 extend to -all licensees of the Texas State Board of Public Accountancy, or 2. Does Attorney General Opinion JM-290 apply only to individuals receiving certificates and original licenses after the effective date of article 6252-13c, V.T.C.S.? Article 6252-13c, V.T.C.S., applies to all licensees of .. the Texas State Board of Public Accountancy. Tte board is a "licensing authority" subject to the set. See V.T.C.S. art. 6252-13~. II; see also V.T.C.S. art. 6252-,13a, s?Ti), (4) (defining "agency" and "licensing" for purposes of article 6252-13~. V.T.C.S.). The excep- tions to article 62S2-13c, V.T.C.S.. vhich cover the Supreme Court, persons licensed under its authority, and any person vho Is or seeks to become a peace officer, d,o not apply to licensees of your board. Article 6252-13~. V.T.,C.S., applies to all licenses issued by the Texas State Board of Public: Accountancy, and not onLy to licenses held by individuals who were first licensed after the effective date of the statute. Article 4(e), the provision requiring revocation of licenses, .applies to the following events occurring after tLw effective date of article 6252-13~. V.T.C.S.: the licensee's felony convictions resulting in incarceraticn, and the revocation of his probation, parole, or mandatory supc~vision. See Government Personnel Mutual Life Insurance Co. v. Weal;,, 251 S.W.2d525 (Tax. 1952) (statutes are presumed to operate prospc:nively). Your questions number ,three and seven are as follows: 3. Assuming the answer to question No. 1 is affirmative and the board is requtred to amend Substantive Rule 525, what vould be the effective p. 2211 Mr. Bob E. Bradley - Page 9 (JM-482) date for implementation of the revocation policy (e.g., "Pan adoption of article 6252-13~. V.T.C.S., upon acllendwnt of board rules to Include revocation of s license for conviction of a felony, etc.)? 7. If the e~!fective date for implementation were upon adoption of article 6252-13~. V.T.C.S., would a 'grandfat,her clause' excluding individuals licensed between the effective date for implemen- cation and the drte of amendment of board mles be acceptable? Since your stateroent &out amending Substantive Rule 525 is based on the interpretation of article 6252-13~. V.T.C.S., given in Attorney General Opinion J'M-290, we believe you should consider the question of amendment in light of this opinion. Article 6252-13c, V.I.C.S.. became effective September 1, 1981. Inolementation of a statuta begins with its effective date, and the board may not postpone the affective date by promulgating a mle. See State v. Jackson, 376 S.W.:!d 341 (Tex. 1964); Attorney General CpinG W-204 (1980). Your fourth and fifth questions are as follows: 4. If the h;uswer to question No. 1 is affirnative. 1~u:31:all renewal applications for licenses with tlhe board be submitted to the Zlcpartaent of Public Safety for a check of conviction records? 5. What check of conviction records must the board n&e on !.l.censees living outside of Texas and what check of records musr rhr board uake on federal convictions? Section 3 of article 6252-13~. V.T.C.S.. provides as follows: Sec. 3. All agencies of this state and its political subdfi,isions with the duty and responsi- bility of licensing and regulating members of particular tradl?s, occupations, businesses. voca- tions, or profe:3siors shall have the authority to obtain from the Texas Department of Public Safety or from a local law enforcercent agency the record of any convictj,on of any perscr. applying for or holding a licenru: from the requesting agency. p. 2212 I Mr. Bob E. Bradley - Page 10 (JM-482) This provision authorizes. blat does not require, a licensing agency to obtain conviction records fr:ow the Texas Department of Public Safety or * local law enforcement agency. Prior to the enactment of article 6252-13~. V.T.C.S., the Public Accountancy Act authorized the revoca- tion of licenses upon "final conviction of a felony under the laws of any state or the United States." (Emphasis added). V.T.C.S. art. 41a-1, 521(S). See Acts 1FK 57th Leg., ch. 289. at 608, 617. Presumably the box obtain& information about felony convictions to use in exercising this power under its enabling statute, and it nay continue to use the sane sources of infomation to implement section 4(e) of article 6252-13~. Moreover, the mandatory duty to revoke a license for a felony conviction applies only when the conviction results in incarceration. Thus ( records of admissions to state prisons could be another source of information for the board. Your sixth question is contingent on different answers frox those we gave. Accordingly, we nc.ed not answer it. Your eighth question 11; as follows: 8. Would the revocation procedure require the board hearing process as specified in the Public Accountancy Act cf 1979. as amended, sections 21 and 22? Only sectton 22 of articlle 41a-1, V.T.C.S., sets out a hearing procedure. Section 21 stiltes conduct for which a license may be suspended OK revoked, and directs that section 22 shall be followed. We will limit our answer to the portions of these statutes governing procedures. Section 4(d) of article 6252-13~. V.T.C.S., states that (d) Proceedings held before a state licensing authority to est,~blish factors contained in this section are governed by the Administrative Pro- cedure and Texas Register Act, as amended (Article 6252-13a, Vernon's Texas Civil Statutes). The Administrative Procedure Act sets out the procedural rules for establishing factors included in section 4 of article 6252-13~. V.T.C.S. The board may f,>:Llow procedures set out in section 22 of article 41a-1, V.T.C.S., tc, the extent these are not inconsistent with the Administrative Procedum Act. SUMMARY Section 4(a) of article 6252-13c, V.T.C.S., requires a licensing agency to suspend a license upon a licensee's felony conviction which results in incarceration, or upon revocation of his felony p. 2213 Mr. Bob E. Bradley - Page 11 (JM-482) probation. parol.e,. or mandatory supervision. Attorney General Opinion JM-290 (1984) is over- ruled to the extmt it is inconsistent with this opinion. Veryltruly yours. t&c JIM MATTOX Attorney General of Texas JACK BIGBTOWER First Assistant Attorney General MARYKELLER Executive Assistant Attorney General ROBERTGRAY Special Assistant Attorney General RICX GILPIN Chairman, Opiniou Comittec: Prepared by Susan L. Garrlrmn Assistant Attorney General p. 2214