Untitled Texas Attorney General Opinion

QBffice of tfp ZZhmep @eneraI Mate of Qexae DAN MORALES ATTORNEY GENERAL January 13, 1995 Honorable W. Keith Oakley Opinion No. DM-3 15 Chair Committee on Public Safety Re: Interpretation of section 80.001 of the Texas House of Representatives Human Resources Code, which concems the P.O. Box 2910 duty of local law enforcement officials to Austin, Texas 78768-2910 perform fingerprinting services (RQ-718) Dear Representative Oakley: You ask this office to interpret section 80.001 of the Human Resources Code, which concerns the duty of local law enforcement officials to perform fingerprinting RNiCeS. Section 80.001 reads: (a) A state law enforcement agency or the law en8orcement agency of any political subdivision of the state shah comply with the request of a person to have a record of his fingerprints made or a record of the fingerprints of a child or ward of the person made. (b) A law enforcement agency may not charge for the service provided under this section and may not retain records of fingerprints made under this section unless specifically requested to do so by the person requesting the service. You note that some Texas law enforcement agencies are either re.&sing to provide such service or charging a fee for it, apparently taking the view that, as you put it, “rhe statute did not intend for local law enforcement officers to do free fingerprinting for anyone except children.” Accordingly, you ask three questions: first, whether a local law enforcement agency may refuse to provide fingerprinting services on request; second, whether it may charge for such services; and third, whether it may impose conditions (other than providing the service during normal business hours when staE is available) on providing such services. We believe that the plain language of the statute addresses your concerns. As to your first question, a local law enforcement agency is required to perform the senice, and may not refuse to do so. Section 80.001(a) provides that the agency “shall comply” with a request for this service. The language used by the legislature is mandatory, not precatory. BLACK’SLAW DICTIONARY1375 (6th ed. 1990) (“As used in statutes, contracts, or the like, this word is generally imperative or mandatory[;] [i]n common or ordinary p. 1676 HonorableW.KeithOakky - Page 2 (~~-315) signiiication, the term “shall” is a word of command, and one which has always or which mustbegivenaannpulsory meaning as denoting obligation”). Similar& the knguage of section 80.001@) plainly answers your second question. An agency “may not charge for the service provided under this se&on.” Nothing in the provision suggests that this sedcc is to be provided he of charge only to chikn. Such a~wwldreadarthe~“tohwearecordofhistingerp~smade”auplusaee. See Chewon Cap. v. Redmm, 745 S.W.2d 314,316 (Tex. 1987) @amtory kguage not tobetrutedassurplusage). Nordoesurythinginthestatutepamitalocal~enforcemartsgencytoimposc additional conditions on the perfom~~~~ of this service. The law imposes a duty on local law enforcement agencies which they must discharge without fee or restriction. SUMMARY Section 80.001 of the Human Resource$ Code obliges state and local law etSxcement agencies to provide free fingeqkting services to the public upon request and without additional wllditio&~ DAN MORALES Attorney Gearal of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Gpiion Committee Prepared by James Tourtelott Assistant Attorney General p. 1677