October 22. 1999

The Honorable Judith Zaftirini Chair, Committee on Human Services Texas State Senate P.O. Box 12068 Austin, Texas 78711 Opinion No. X-0130

Re: Whether the Texas Department ofProtective and Regulatory Services may rescind certain license to operate a child-care facility (RQ-0049-K)

Dear Senator Zaftirini:

You ask whether the Texas Department ofProtective and Regulatory Services may rescind the license ofachild-care facility operator who was convicted ofacriminal offense thirty years ago. We conclude that, under current Department rules, the Department may rescind the license of a child-care facility operator who was convicted of acriminal offense.

You are inquiring about a particular case in which a person who had been convicted of aggravated assault was granted alicense to operate achild-care facility. The person pleaded guilty in 1969 to aggravated assault, which was then amisdemeanor offense but which is now a felony offense listed in Title 5of the Penal Code. See TEX.PEN.CODE ANN. 322.02 (Vernon 1994). Her sentence was suspended and she successfully served two years ofprobation, now called community supervision, at which time the case against her was dismissed pursuant to the Misdemeanor Probation Law of 1965, former article 42.13 ofthe Code of Criminal Procedure, which was then in effect. Some years ago, the Department waived the licensing requirements and granted the person permission to operate a child-care facility under a prior Department rule that allowed a person convicted of any offense to operate achild-care facility upon proof ofrehabilitation. The rule was amended in 1998 to prohibit rehabilitation for Title 5 offenses, and consequently the Department began proceedings to rescind the operator’s rehabilitation waiver and revoke her license. You ask whether the Department may revoke her license.

We do not determine whether the Department may revoke the license ofthe particular childcare facility operator about whom you ask. This determination requires factual findings related to the criminal proceedings against the person, and we areunable to make such findings inthe opinion process. Instead, we address the Department’s legal authority with respect to child-care facility licensing.

With certain exceptions, no person may operate a child-care facility in Texas without a license orcertificate issued by the Department ofProtective and Regulatory Services pursuant tothe requirements of chapter 42 of the Texas Human Resources Code. TEX.HUM.F&S.CODEANN. 842.041 (a) (Vernon Supp. 1999). The Department may suspend, deny, revoke, or refuse to renewThe Honorable Judith Zaftirini - Page 2 (X-0130)

the license ofa facility that does not comply with the requirements ofchapter 42, with the standards
or rules of the Department, or with the specific terms ofthe license. Id §42.072(a).

As part ofits licensing function, for each applicant the Department must perform acriminal history and background check and search the central registry of reported child-abuse cases, Id. $542.0445, ,056, ,057. “The department byrule may provide for denial ofan application orrenewal for a licensed facility or may revoke a facility’s license based on findings ofbackground or criminal history as aresult of abackground or criminal history check.” 

### Id. 542.072(d) (addedby Act ofMay 23,1997,75thLeg., R.S., ch. 1217, $13,1997 Tex. Gen. Laws 4674,4679), Consistent with the authority granted in section 42.072(d), the Department has adopted arule providing that it nzay deny or revoke a license or certificate to operate achild-care facility based on the results of a child-abuse registry search orcriminal-history check. 40 TEX.ADMIN.CODE5725,1801(h) (1999). For certain convictions, however, the rule 

### requires the Department to deny or revoke alicense:

The department 

### shall deny anapplication orrenewal for alicense, certificate, listing or registration or shall revoke alicense, certificate, or family home’s listing or registration if the results of the background or criminal history check conducted by the department show that aperson has been convicted of
an offense under Title 5 [offenses against the person] or 6 [offenses against the family] ofthe Penal Code, orchapter 43, Penal Code [public indecency],
or any like offense in another state.


### Id. (emphasis added). This part of the rule is also authorized, though not required, by section 42.072(d). See TEX.GOV’TCODE ANN.§311.016 (Vernon 1998) (providing that unless the context requires otherwise, “may” creates discretionary authority or grants permission or apower, while “shall” imposes aduty).

Another Department rule prohibits aperson who has been convicted of aTitle 5,Title 6, or chapter 43 offense from being present atachild-care facility while children are in care. See 40 TEX. ADMIN.CODE5 715.407 (1999). This rule is significant to the case about which you ask because,
as we understand it, the person not only holds the license but is present at the facility as an employee. Normally, a facility may receive permission from the Department not to meet a Department standard. See 

### id.$5725.2023, .3067. Afacility may receive awaiver oftheprohibition
on aconvicted person having contact with children by showing tothe Department’s satisfaction that the person has been rehabilitated: “Ifan applicant. wishes to employ anindividual in contact with children who has been convicted of acriminal offense, the applicant. , .must send arequest to the director of licensing establishing that rehabilitation has occurred.” 

### Id. 5725.2027(a). If granted a waiver, the licensee must meet all conditions of the waiver. See 

### id. 3725.2023.

But for certain offenses, permission to employ arehabilitated convict will not be granted: “Rehabilitation will not be granted for offenses of Title 5 of the Penal Code (Offenses Against the Person); Title 6 ofthe Penal Code (Offenses Against the Family); and Chapter 43 of Title 9 of the Penal Code (Public Indecency).” 

### Id. 5725,2027(c). Prior to aDepartment rule change in 1998, a rehabilitation waiver could be granted for any offense. We understand that because the rule wasThe Honorable Judith Zafflrini - Page 3 (JC-0130)

amended to prohibit rehabilitation for Title 5 offenses, the Department began license revocation proceedings against the operator about whom you ask.

We also note that a statute applying to state licenses generally authorizes a licensing authority, with afew exceptions, torevoke the license ofaconvicted person ifthe conviction directly relates to the subject of the license: “A licensing authority may suspend or revoke a license, disqualify aperson from receiving alicense, or deny to aperson the opportunity to take a licensing examination on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities ofthe licensed occupation.” Act ofMay 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 53.021, 1999 Tex. Sess. Law Serv. 1431, 1447 (to be codified at chapter 53 of the Texas Occupations Code) (codifying article 6252-13~ of the Revised Civil Statutes); see also 

### id. 56(a), 1999 Tex. Sess. Law Serv. at 2439-40 (repealing article 6252-13~ of the Revised Civil Statutes). The statute lists factors to be considered by the licensing authority in determining whether the conviction relates to the occupation and in determining the fitness of the licensee to perform the duties of the license. 

### Id. 9 53.022. While we cannot decide whether revocation ofthe waiver orthe license ismerited by the facts ofthe particular case about which you ask, we conclude that the rule requiring the Department to revoke the license of aperson convicted of aTitle 5offense and the rule prohibiting arehabilitation waiver for such aperson both are valid. The rules are authorized, though not required, by section 42.072(d) of the Human Resources Code.

It is true that the rules would appear to operate retroactively against the facility operator in this case, since they would allow the Department to revoke a license that was valid under aprior regulation. See TEX.CONST.art. I, § 16(“No bill ofattainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.“). But mere retroactivity is not sufficient to invalidate operation of the rule on constitutional grounds, since a retroactive law is prohibited by the constitution only if it takes away or impairs a vested right. 

### State v. Project Principle, Inc., 724 S.W.2d 

### 387, 390 (Tex. 1987); 

### Merchants Fast Motor Lines, Inc. v.Railroad Comm ‘n,573 S.W.2d 502,504 (Tex. 1978). The granting oflicenses andpermits to conduct certain activities in the state are generally held to be privileges, not rights. See, e.g., Texas 

### Dep ‘tof

### Pub. Safetyv. Tune,977 S.W.2d650,653 (Tex. App.-Fort Worth 1998, pet. dism’dw.o.j.). Accordingly, the constitutional provision barring retroactive laws would not bar the Department from rescinding
achild-care facility license.

We do not determine whether aperson whose criminal case was dismissed following the successful completion ofprobation has been “convicted” for purposes of Department rules. Such
a determination depends upon the facts surrounding the case, its procedural history, and the law applicable to it. C~~~~~~TEX.CODECRIM.PROC. ANN.art. 42.12,s 20(a)(2) (Vernon Supp. 1999) (providing that defendant whose conviction isset aside following successful completionofprobation “shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted orto which he pleaded guilty”), 

### with Misdemeanor Probation Law of 1965, Act of April 29, 1965, 59th Leg., R.S., ch. 164, § 7(b), 1965 Tex. Gen. Laws 346, 348 (repealed in 1985) (providing that conviction dismissed following successful completion of probation could not be considered “for any purpose”); compare 

### McLendon v. TexasDep ‘tof

### Pub. Safety, 985 S.W.2d 571,578-79 (Tex. App.-Waco 1998, pet. filed) (holding that unless licensing statute defines “conviction” to include set-aside conviction, then set-aside conviction is notThe Honorable Judith Zafftrini - Page 4 (JC-0130)

“conviction” forpurposes oflicensing statute), 

### with TexasDep ‘tofPub. Safetyv.Tune,977S.W.2d 650, 653 (Tex. App.-Fort Worth 1998, pet. dism’d w.o.j.) (holding that set-aside conviction was “conviction” where statute defined “conviction” to include adjudication of guilt even if defendant received probation or community supervision).

SUMMARY

The Texas Department ofprotective and Regulatory Services may revoke the license of a child-care facility operator who was convicted of acriminal offense.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK RENT ERVIN Deputy Attorney General -General Counsel

ELIZABETH ROBINSON Chair, Opinion Committee

Barbara Griffin Assistant Attorney General -Opinion Committee