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October 22, 1990

Mr. Ron Lindsey Opinion No. JM-1237 Commissioner Texas Department of Re: Scope of criminal history Human Services investigations of employees in P. 0. Box 149030 certain facilities licensed by Austin, Texas 78714-9030 the Texas Department of Health or under contract with the Texas Department of Human Services (RQ-2137)
Dear Mr. Lindsey:
You have requested our opinion regarding legislation 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 the Human Resources Code provides: The Texas Department ofHuman 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 of Investigation Identification Division to investigate an employee oraperson applying for employment atafacility.
See Hum. Res. Code 9106.001 (defining 81facility1V).. This provision applies to employees of various facilities, licensed **by** the Department of Health, including 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

### tiontotheDepartment offHumanServices. Id. 0106.00:(a), (b)
. When the info?mation has been furnished, the

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Department of Human Services iS required to request the Department of Public Safety toconduct acriminal conviction check on the individual. Id. §106.004(c). Temporary employment ispermitted, so long as the facility initiates a criminal conviction check within 72 hours after the individual accepts the temporary employment. With certain exceptions,1 a facility isprohibited from hiring any person ifthe records show that he or she has been convicted of an offense listed insection 106.003(b). See id. §106.008(a). Criminal conviction checks are somewhat limited by section 106.002, which provides:

(a)If a facility ispart of a large complex of buildings, the requirement of a criminal conviction check under this chapter applies only to a person who will work primarily inthe immediate boundaries of the facility. (b)This chapter applies toan employee or aperson applying for employment at a home health agency only ifthe employee or person isor will be employed ina position the duties ofwhich involve direct contact with a consumer ofhome health services. However, inaddition tobeing recuired to run checks onmost aoolicants for employment, afacility isemnowered, although not required, to run acheck on "any person employed" there, including one licensed under other law and one exempt under section 106.002(b). Seeid. 5106.004(d). A facility is also required under section 106.008(a) to "immediately terminate" a person's employment ifthe results of the criminal conviction check reveal that the person has been convicted of anoffense listed under section 106.003(b). Section 106.003(b) limits the types ofoffense which automatically bar permanent employment and which require termination. The applicable offenses . are limited to the following: (1),amisdemeanor or felony classified as

anoffense against the person or the family:

1. Id. 5106.008(b), (c). *

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(2)amisdemeanor 

### orfelony classified as public indecency; (3) a felony violation of a statute intended to control the possession ordistribution of asubstance included inthe Texas Controlled Substances Act (Article 4476-15, Vernon's Texas Civil Statutes): (4)afelony violation of Section 31.03, Penal Code; (5) robbery or aggravated robbery, as described byChapter 29, Penal Code; or (6) 

### burglary, as described by section . 30.02, Penal Code.
You indicate that some of the listed offenses are Class Cmisdemeanors, specifically the following provisions of the Penal Code:521.06.

022.01(a)(2).

522.01(a)(3).

§22.08. 522.10.

§43.22. Homosexual Conduct. Threatening another with bodily harm. Causing physical contact with another that may be reasonably regarded as offensive orprovocative. Aiding Suicide. Leaving achild ina vehicle. Displaying ordistributing obscene material.
You express concern that the required dismissal ofpermanent employees and the bar ofpermanent employment to applicants convicted of aClass'Cmisdemeanor may conflict with section 12.03(c) of the Penal Code, which provides:

Conviction ofaClass Cmisdemeanor does not impose any legal disability ordisadvantage. Section 12.03(c) is along-standing feature of the penal laws. According to the Practice Commentary, it is

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designed to ensure that @'conviction of aClass C (justice court) misdemeanor does not deprive the defendant of his rights to vote, hold public office, serve on ajury, or other rights ofcitizenship." Searcy &Patterson, Practice Commentaq Tex. Even if w& Penal Code Ann. 812.04 (Vernon 1974).

were to construe a bar of employment at a facility for the elderly ordisabled as a "legal disability ordisadvantage,** however, it isclear 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 enactments, since they deal only with restrictions on employment atacertain kind of "facility." Section 311.026 of the Government Code provides:

(a)Ifageneral provision conflicts with aspecial or local provision, the provisions shall be construed, if possible, so that effect isgiven toboth. (b)If the conflict between the general provision and the special or local provision irreconcilable, t:ovision prevails the special or local as anexception to the general provision, unless the general provision isthe later enactment and the manifest intent isthat the general provision prevail. The employment restrictions of the Human Resources Code were enacted in 1989. Section 311.025(a) of the Government Code provides:Except asprovided by Section 311.031(d), if

statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest indate of enactment prevails. Thus, it isclear, both from the rule that the specific prevails over the general, and the rule that "the statute latest indate ofenactment prevails, *that section 12.03(c) of the Penal Code cannot control over the employment restrictions ofchapter 106 of the Human Resources Code.
You also express concern about a potential conflict between the employment bar ofchapter 106 and section 23 of article 42.12 of the Code of Criminal Procedure. That statute provides:

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At any time, after the defendant has satisfactorily completed one-third of the original probationary period or two years of probation, whichever is the lesser, the period ofprobation may be reduced or terminated by the court. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. In case the defendant has been convicted orhas entered aplea ofguilty or aplea ofnolo contendere toan offense other than an offense under Subdivision (2) I Subsection (a), Section 19.05, Penal Code, or anoffense under Article 67011-1, Revised Statutes, and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shala thereafter be released from all venalties and dis ' *r CL r'e w * convicted to Phich hehas oleaded guiltv, except that: (1)proof ofhis said conviction or plea ofguilty shall bemade known to the court should the defendant again be convicted of any criminal offense; and (2) ifthe defendantis an applicant for a license or is alicensee 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 alicense under that chapter. (Emphasis added). The "all penalties and disabilities@' provision of section 23 isapparently equivalent to the "legal disability ordisadvantage" language of section 12.03 of the Penal Code. More than 20years ago, when section 23was part of section 7 of article 42.12, this office considered the extent ofarelease from "all penalties and disabilities."

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Attorney General Opinion M-640 (1970) said that an individual who qualified under this provision:

may serve on ajury or vote atan 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 the "judgment ofconviction" from the record, the statute makes itclear that the "conviction" itself has not been entirely erased. The opinion then addressed the specific question asked:

The right of such adefendant to state tohis prospective employer that hehas never been convicted isnot dealt with inthe 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" or "disability" which was released by the statute. It is, therefore, concluded that such person cannot state inan application ofemployment that he had 

### never been "convicted of afelony."
In our opinion, the denial of employment in a 1'facility8qunder chapter 106 ofthe 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. Inaddition, the same considerations that are applicable to your first question are also present here. The employment restrictions of 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 the employment restrictions of chapter 106 of the Human Resources Code.
SUMMARY

Neither section 12.03(c) of the Penal Code nor section 23 ofarticle 42.12, Code of Criminal Procedure, acts as alimitation on chapter 106 of the Human Resources Code, which bars the employment, incertain facilities serving the elderly or disabled, of

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persons who have been convicted felonies andmisdemeanors listed 106. of certain in chapter

JIM MATTOX Attorney General ofTexas
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 byRick Gilpin Assistant Attorney General

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