Case Information
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October 22, 1990 Mr. Ron Lindsey Opinion No. JM-1237
Commissioner Re: Scope of criminal history
Texas Department of investigations of employees in Human Services certain facilities licensed by P. 0. Box 149030 the Texas Department of Health Austin, Texas 78714-9030
or under contract with the Texas Department of Human Ser- vices (RQ-2137) Dear Mr. Lindsey: legislation
You have requested our opinion regarding 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 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
Investigation Identification Division
investigate an employee or a person applying for employment at a facility.
See Hum. Res. Code 9 106.001 (defining 81facility1V).. applies to employees various
This provision including facilities, licensed by the Department of Health, 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, *2 Department of Human Services iS required to request 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 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 only to a person who will work applies 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
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) "immediately terminate" a person's employment if the results
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
following:
(1) ,a misdemeanor or felony classified as an offense against the person or the family: 1. Id. 5 106.008(b), (c).
* *3 (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 burglary, as described by section . (6)
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. Aiding Suicide.
§ 22.08. Leaving a child in a 5 22.10. vehicle. Displaying or distributing
§ 43.22. 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. feature
Section 12.03(c) is a long-standing penal laws. According to the Practice Commentary, it is
P. 6582 *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 Penal Code Ann. 8 12.04 (Vernon 1974). Commentaq Tex. were to construe a bar of employment at a
Even if w& 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 Section at a certain kind of "facility." 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
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 Code enacted in 1989. Section 311.025(a) of the Government 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:
Mr. Ron Lindsey - Page 5 (JM-1237)
At any time, after the defendant has one-third satisfactorily completed
original probationary period or two years of probation, whichever is the lesser, the period of probation may be reduced or termi- Upon the satisfactory nated by the court.
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
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
defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss or
accusation, complaint, information indictment against such defendant, who shala thereafter be released from all venalties and dis ' *r
CL r' e w * convicted
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
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 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 extent of a release from "all penalties and disabilities."
, Attorney General Opinion (1970) said that an M-640 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
"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" which or "disability" was released by the statute. It is, therefore, concluded that such person cannot state in an that he had never application of employment been "convicted of a felony."
In our opinion, 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 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 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,
Q. 6585 *7 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