Case Information
*1 The Attorney General of Texas Decetdler 31, 1984 II’ 1 MAlTOX
4 xney General Opinion No.JM-290 Woodrow W. Iliac, P.E. 3 mm. Cowl BuildIn Executive Director 3.0. Box 12545 Re: Whether the license 4ur1in. TX. 7S711.2S49 Texas State Board of Registration 5’ ‘4752501 for Professional Kngineers a registered engineer must be TI ,x 9lWS74.1367 revoked upon his conviction P. 0. Drawer 18329 TemCODler 5121475O288 Austin, Texas 78760 of a felony 7 Jackson. Suile 700 Dear Mr. Mize: D61Iad. TX. 7WO2JSO9
2w7*2-S944
You ask whether the provisions 6252-13~. V.T.C.S.,
act relating to occupational and professional licensing certain persons with crimlw:l backgrounds, conflict with provisions the 4824 Alberta he.. Suite 150 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 Registration
for Professional Engineers. Specifically, you ask whether revocation of the license of a mgistered engineer is mandatory upon 1001 1exalJ. suite 700 of a f$elony. his conviction I uston. TX. 77002.3111 7 u222-5SS9 In 1981 the le$,islature enacted article 6252-13~. V.T.C.S. That statute, after excluding from its application judges, lawyers, t I Broadway. Suite 312 peace officers (or !,c:rsons ticeking to become such; see also V.T.C.S. 1 Dbock. TX. 79401-3479 6252-13d, 55). provides in section 4(a): 9081747.5229 A liceming authority suspend or revoke an d 39 N. Tenth. Suite S existing slid license, disqualify a person from McAllen. TX. 7SY31-1885 receiving s license. or deny to a person 512lSS2-4S47 opportunity to be examined for a license because a person’s of a felouy or mis- 200 Mlkl Plua. suite 400 demeanor if the crime directly relates Sm Antonlo. TX. 782062797 duties al;! responsibilities : Y2254191 occupatiot~ (Emphasis added). Seetlon 4 (e) , howevtrr. provides:
An Equal OpportunityI firmath Action Employsr
Upon a Hcensee’s conviction, probation -revocation, revocation of parole, or of mandatory supervision. his licecse shall be ::twoked. (Emphasis added).
It has been suggested 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 *2 (311-290) Mr. Woodrow W. Wire. P.E. - PdlSe 2 di,rectly relates the duties and If the felony to
responsibilities of the 1i~:ensed occupation, while 4(a) eection requires the mandatory revocation of a license the licensee is if it hae been suggested Altematively~ convicted of 3 felony. 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 the duties and responsibilit~.es of the licensed occupation. We think both provisions may stand, but for a different reaaon. section 4(a) of the statute controls the
In our opinion, discretion given licensing boards concerning the effect of major lyr a person before he receives criminal law transgressions a license the effect his minor transgressions, whenever they occur. on the other bend, controls the weight to be given by Section t(e), 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 license mandatory, In our opinion. This difference In the operation 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 upon the “directly relates” conditions. Rules construction followed in Texas statutory 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 BUS a depriv&oo due process or equal protection under the federal. Conatltution - an arbitrary deprivation the “freedom to develop one’s talents.” See I Antieau. Modern 13:16 ?&ware involved Constitutional Law, at (1969).
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. of the license af a current licensee for conviction offense while currently is easily distinguishable. See Barsky v. Board of Regerls. 347 U.S. 442 (1953).
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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) the conviction which. under common law
an “infsmous” offense, principles, is an indication of bad character. Bennett v. State, S.W. 527 (Tex. App. 1887); g$on v. McMullen, 527 P. Supp. 711 (N.D. The public has a right to expect. and the state haa a Tex. 1981). 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 their chosen calling, and evidence of their possible reformation or’current good character can be considered for the purpose of refuting inferences from past convictions without risk to the public. But persons of bad character pose a threat to members of the public dealing with them, and a connotes immediate current a licensee character flaw, not some ronote transgression from which reliable inferences 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). 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 6252-13~. V.T.C.S., and art1c:l.e 3271a. V.T.C.S., the Texas Engineering Practice Act.
The pertinent provisioa,s 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 regulations necessary . . . establish standards of conduct and l t’h:lcs 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
engineer; or
Mt. Woodrou W. Mize. P.E. - Pafle 4 (JM-290) A violatj.cln this Act or a Board (c)
rule. Conviction A is not -- aeide from any board rule that might licenaa revocation under the - an expraes basis for touch the subject Practice AI:!:. Certainly, that statute does not Texae Rngineerlng expreaaly mandate the ravocatlon of an englnacr’a registration upon his conviction m felony. These sections of the Texas Engineering Practice Act and article are ~p;uci materiar
6252-13~s V.T.C.S., and must be read together (and the law applied) AA thou@ rhep were parts the same act. See 53 Tex. Jur. 2d Statutes $186. at 281. vhen so read, the same rn- that resolved the “conflict” between two provisions 6252-13~ also resolves any apr’srent conflict here.
To the extent that article 6252-13~ mandates the revocation license or registration for causes which article 3271a does not address or for vhlch article 3271s permits (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). therefore!, it is mandatory the Taxas State
Board of Registration for Professional Engineers revoke registration of a registered professional engineer upon his conviction of a felony vhile so licensed. ,that
It is mandatory the Texas State Board of Registration for Professional Engineers revoke registration of a zeglstered engineer upon his convictiom. of s felony while so licensed.
Very truly yo J-b .
-
JIM HATTOX Attorney General of Texas TOM GREFN
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:
OPINION COEMITTEE
Rick Gilpin. Chairman
Colln Carl
Susan Garrison
Tony Guillory
Jennifer Riggs
Bmce Youngblood