n 

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 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 of 

Investigation Identification Division to 

investigate an employee or a person applying 

for employment at a facility. 

See Hum. Res. Code 9 106.001 (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 information to the Department off Human Services. Id. 0 106.00:(a), 

(b) . When the info?mation has been furnished, the 

p. 6580 
Mr. Ron Lindsey - Page 2 (JM-1237) 

Department of Human Services iS required to request the 

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 the 

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 

applies only to a person who will work 

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 the 

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) to "immediately 

terminate" a person's employment if the results of the 

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 to the 

following: 

(1) ,a misdemeanor or felony classified as 

an offense against the person or the family: 

1. Id. 5 106.008(b), (c). 

* 

p. 6581 
Mr. Ron Lindsey - Page 3 (JM-1237) 

(2) a misdemeanor or felony classified as 

public indecency; 

(3) a felony violation of a statute 

intended to control the possession or distribution 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 

(6) burglary, as described by section . 

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. 

0 22.01(a)(2). 

5 22.01(a)(3). 

§ 22.08. 

5 22.10. 

§ 43.22. 

Homosexual Conduct. 

Threatening another with 

bodily harm. 

Causing physical contact 

with another that may be 

reasonably regarded as 

offensive or provocative. 

Aiding Suicide. 

Leaving a child in a 

vehicle. 

Displaying or distributing 

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. 

Section 12.03(c) is a long-standing feature of the 

penal laws. According to the Practice Commentary, it is 

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Mr. Ron Lindsey - Page 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 

Commentaq Tex. 

Even if w& 

Penal Code Ann. 8 12.04 (Vernon 1974). 

were to construe a bar of employment at a 

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 enactments, since they deal only with restrictions on employment 

at a certain kind of "facility." Section 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, 

t:ovision prevails 

the special or local 

as an exception to the 

general provision, unless the general provision is the later enactment and the manifest 

intent is that 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 as provided by Section 311.031(d), if 

statutes enacted at the same or different 

sessions of the legislature are irreconcilable, 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: 

p. 6583 
Mr. Ron Lindsey - Page 5 (JM-1237) 

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 of probation 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 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 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 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 of 

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 of 

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 the 

extent of a release from "all penalties and disabilities." 

p. 6584 
Mr. Ron Lindsey - Page 6 (JM-1237) 

, 

Attorney General Opinion M-640 (1970) said that an 

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 the 

"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" or "disability" which was 

released by the statute. It is, therefore, 

concluded that such person cannot state in an 

application of employment that he had never 

been "convicted of a felony." 

In our opinion, the 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 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 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 facilities serving the elderly or disabled, of 

Q. 6585 
Mr. Ron Lindsey - Page 7 (JM-1237) 

persons who have been convicted 

felonies and misdemeanors listed 

106. 

of certain 

in chapter 

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 

p. 6586