Untitled Texas Attorney General Opinion

The Attorney General of Texas II’ 1 MAlTOX Decetdler 31, 1984 4 xney General 3 mm. Cowl BuildIn Woodrow W. Iliac, P.E. Opinion No.JM-290 3.0. Box 12545 Executive Director 4ur1in. TX. 7S711.2S49 Texas State Board of Registration Re: Whether the license of 5’ ‘4752501 for Professional Kngineers a registered engineer must be TI ,x 9lWS74.1367 TemCODler 5121475O288 P. 0. Drawer 18329 revoked upon his conviction Austin, Texas 78760 of a felony 7 Jackson. Suile 700 Dear Mr. Mize: D61Iad. TX. 7WO2JSO9 2w7*2-S944 You ask whether the provisions of article 6252-13~. V.T.C.S., an act relating to occupational and professional licensing of certain 4824 Alberta he.. Suite 150 persons with crimlw:l backgrounds, conflict with provisions of the El Paso. TX. 799052792 Texas Engineering Pmctice Act, article 3271a, V.T.C.S.. regsrding the 9ll53534s4 revocation of licenses issued by the Texas State Board of Registration for Professional Engineers. Specifically, you ask whether revocation 1001 1exalJ. suite 700 of the license of a mgistered professional engineer is mandatory upon I uston. TX. 77002.3111 his conviction of a f$elony. 7 u222-5SS9 In 1981 the le$,islature enacted article 6252-13~. V.T.C.S. That statute, after excluding from its application judges, lawyers, and t I Broadway. Suite 312 1 Dbock. TX. 79401-3479 peace officers (or !,c:rsons ticeking to become such; see also V.T.C.S. 9081747.5229 6252-13d, 55). provides in section 4(a): A liceming authority 9 suspend or revoke an d 39 N. Tenth. Suite S existing slid license, disqualify a person from McAllen. TX. 7SY31-1885 512lSS2-4S47 receiving s license. or deny to a person the opportunity to be examined for a license because of a person’s conviction of a felouy or mis- 200 Mlkl Plua. suite 400 demeanor if the crime directly relates to the Sm Antonlo. TX. 782062797 duties al;! responsibilities of the licensed : Y2254191 occupatiot~ (Emphasis added). An Equal OpportunityI Seetlon 4 (e) , howevtrr. provides: firmath Action Employsr Upon a Hcensee’s felony conviction, felony probation -revocation, revocation of parole, or revocation of mandatory supervision. his licecse shall be ::twoked. (Emphasis added). It has been suggested that sections 4(a) and 4(e) of article 6252-13~ are in irrmrconcilable conflict because section 4(a) indicates that an existing valid license may be revoked for conviction of a Mr. Woodrow W. Wire. P.E. - PdlSe 2 (311-290) felony If the felony di,rectly relates to the duties and responsibilities of the 1i~:ensed occupation, while eection 4(a) requires the mandatory revocation of a license if the licensee is convicted of 3 felony. Altematively~ it hae been suggested that both sections may stand if rection 4(e) la read to require the revocation of a license for a ,felony & if a determioatlon has first been made pursuant to section 4(a) that the felony directly relates to the duties and responsibilit~.es of the licensed occupation. We think both provisions may stand, but for a different reaaon. In our opinion, section 4(a) of the statute controls the discretion given licensing boards concerning the effect of major criminal law transgressions lyr a person before he receives a license and the effect of his minor transgressions, whenever they occur. Section t(e), on the other bend, controls the weight to be given by such boards to a felony conviction that occurs while the actor is a licensed representative of the profession or occupation. It takes away the board’s discretion and makes revocation of the license mandatory, In our opinion. This difference In the operation of the two article 6252-13~ sections does not put them in conflict, although section 4(a) might be read by itself to “allow” a permfssive revocation or suspension of an existing license for a felony conviction upon the “directly relates” conditions. Rules of statutory construction followed in Texas eliminate any “conflict” wit’h the mandatory provision. for where a permissive provision of a statute is confronted by a mandatory provision, the permissive provision yfelds. avolding conflict. See Langdeau v. Burke InvestmentJ&, 351 S.W.Zd 287 (Tex. Civ. App. - = Antonio 1961), aff’d. 358 S.N.2d 553 (Tex. 1962); Kerrvflle Bus Co. v. Continental Bus-em. 208 S.W.Zd 586 (Tex. Civ. App. - Austin 1947. writ ref’d n.r.e.); Attorney General Opinion MU-457 (1982). It is argued, however, citing Schware v. Board of Bar Examiners. 353 U.S. 232 (1957). thet sr1t.h an interpretation of the statute would render it unconstitutional BUSa depriv&oo of due process or equal protection under the federal. Conatltution - an arbitrary deprivation of the “freedom to develop one’s talents.” See I Antieau. Modern Constitutional Law, 13:16 at 227 (1969). ?&ware involved an applicant for a state bar examination who was excluded therefrom primarily for past political activities. Re also had a record of past criminal arrests, but no convictions. The United States Supreme Court held his exclusion on that I~sis to be improper. In our opinion, the revocation of the license af a current licensee for conviction of a felony offense while currently licensed is easily distinguishable. See - Barsky v. Board of Regerls. 347 U.S. 442 (1953). A felony is a crime fc’r which a permissible punishment is death or confinement in the penitentiary. See Penal Code 51.07(a)(14); P.x parte Blume, 618 S.W.Zd 373 ‘(Tex. Cri.App. 1981). Every felony G n. 1289 Mr. Woodrow W. hire, P:E. - PalSa 3 (JM-290) an “infsmous” offense, the conviction of which. under common law principles, is an indication of bad character. Bennett v. State, 5 S.W. 527 (Tex. App. 1887); g$on v. McMullen, 527 P. Supp. 711 (N.D. Tex. 1981). The public has a right to expect. and the state haa a legitimate interest in requkcing, that persona licensed by the state (and thus given lta approval es warranting public confidence in their llcenaed transactions) will be, and will ramain. persons of good character. It Is reasonable to require thet remote convictlons, even for serious offenses. not aui:omatically disqualify applicants for licenses, because applicants have not yet been looaed upon the public as licensed practitioners of their chosen calling, and evidence of their possible reformation or’current good character can be considered for the purpose of refuting inferences from past felony convictions without risk to the public. But licensed persons of bad character pose a threat to members of the public dealing with them, and a current felony conviction of a licensee connotes an immediate character flaw, not some ronote transgression from which reliable inferences of present character may be difficult to draw. See Barskx v. Board of Regents, B. Cf. Emory v. Texas State Board of Medical Examiners, No. 84-1353 (5th C?r Dec. 17. 1984). In our opinion, article 6252-13~. as we interpret it. easily meets the “rational relation:3hio” constitutional test and is at least facially constitutional. Sue -New Orleans v. Dukes. 427 U.S. 297 (1976); United States v. Gibed, 640 F.2d 621 (5th Cir. 1981); Dixon v. McMullen, eupra. We therefore turn to the relationship of article 6252-13~. V.T.C.S., and art1c:l.e 3271a. V.T.C.S., the Texas Engineering Practice Act. The pertinent provisioa,s of the Texas Engineering Practice Act are found in sections 8 and X2. Section 8(a) confers on the Board of Registered Professional Engineers the authority and power to “make and enforce all rules and regulations necessary . . . to establish standards of conduct and lt’h:lcs of engineers. . . .” Section 22 in part provides: Sec. 22. The Eoard shall revoke. suspend, or refuse to renev a registration, shall reprimand a registrant. or may probate any suspension of any registrant who is jiound guilty of: (a) The pral:tice of any fraud or deceit lo obtaining a ceri::lficate of registration; (b) Any gross negligence. incompetency, or misconduct in the practice of professional engineering asi a registered professional engineer; or Mt. Woodrou W. Mize. P.E. - Pafle 4 (JM-290) (c) A violatj.cln of this Act or a Board rule. Conviction of A felony is not -- aeide from any board rule that might touch the subject - an expraes basis for licenaa revocationunder the Texae Rngineerlng Practice AI:!:. Certainly, that statute does not expreaaly mandate the ravocatlon of an englnacr’a registration upon his conviction of m felony. These sectionsof the Texas Engineering Practice Act and article 6252-13~s V.T.C.S., are ~p;uci materiar and must be read together (and the law applied) AA thou@ rhep were parts of the same act. See 53 Tex. Jur. 2d Statutes $186. at 281. vhen so read, the same rn- that resolved the “conflict” between the two provisions of article 6252-13~ also resolves any apr’srent conflict here. To the extent that article 6252-13~ mandates the revocation of a license or registration for causes which article 3271a does not address or for vhlch article 3271s permits revocation (but does not require it), article 6252-13~ controls. To the extent that the Texas Engineering Practice Act maidlatea the revocation of an engineer’s registration for causes not a~ldressad by article 6252-13~ or cauaea for vhich article 6252-13~ permits revocation, but does not require it, article 3271s controls. Set Langdeau v. Burke Investment Co., supra; Kerrville Bus Co. v. _(:ontlnental Bus System, supra; Attorney General Opinion MW457 (1982). In our opinion, therefore!, it is mandatory that the Taxas State Board of Registration for Professional Engineers revoke the registration of a registered professional engineer upon his conviction of a felony vhile so licensed. It is mandatory ,that the Texas State Board of Registration for Professional Engineers revoke the registration of a zeglstered professional engineer upon his convictiom. of s felony while so licensed. J-b Very truly yo . - JIM HATTOX Attorney General of Texas TOMGREFN First Assistant Attorney Genl,ral p. 1291 Mr. Woodrow W. Mire. P.E. - Page 5 (m-290) DAVID R. RICBARDS Executive Assistant Attorney General RICR GILPIN Cbaiaman, Opinion Comittee Prepared by Bmce Youngblood Assistant Attorney Ganeral APPROVED: OPINIONCOEMITTEE Rick Gilpin. Chairman Colln Carl Susan Garrison Tony Guillory Jennifer Riggs Bmce Youngblood