DAN MORALES 

.ATTORSLI CENERA!. 

QBffice of tip Bttotnep Qhneral 

Sbtate of Qexae 

July 21. 1993 

Mr. Burton F. Raiiord 

Interim Commissioner 

Opinion No. DM-238 

Texas Department of Human Services 

P. 0. Box 149030 

Austin, Texas 78714-9030 

Re: Whether chapter 106 of the Human 

Resources Code requires a fixihty that 

submits the name of an employee for a 

ctiminal conviction check to terminate the 

employee if the check reveals convictions 

of certain offbnses (RQ-211) 

Chapter 106 of the Human Resources Code requires the Department of Human 

Services (the “department”) to obtain miminal comiction checks of applicants for 

employment and existing employees for facilities serving the elderly or disabled licensed by 

the department and the Department of Health. You have asked whether a ficility that 

vohmtarily submits the name of an employee, who is licensed pursuant to other law, to the 

department for a criminal conviction check is required to terminate the employee if 

convictions for certain offenses are diivered. 

Your request requires us to examine the statutory framework for crimi~ 

conviction checks set forth in chapter 106 of the Human Resources Code.1 Subsection (a) 

of section 106.004 of chapter 106 provides that a ficilii may not make an offer of 

permanent employment to a person covered by the chapter2 unless the facility provides the 

department with information for a criminal conviction check. Hum. Res. Code 

§ 106.004(a). Subsection (b) of that section provides that a facility “may make an offer of 

permanent employment to a person licensed under other law, including a nursing home 

‘we nON that a state district judge has ndcd Ihat provisions of chapter 106 of the Human 

Resources Code violate the Texas Constitution on the basii that they fail to give ternhated employees 

..A,6 3; ihc reasons for their tmnination or an opportunity to be heard. G&tie v. Tcxar Lkp’r ojffumrm 

Srrvs... No. 913668 (Din. Cl. ofTravis County, 345tb Judicial Din. ofTexa% Jan. 24.1992). @‘d, No, 3- 

92-3393 flex. Am.-Austin, March 17. 1993, n.w.b) (affmning the district anut on prombat 

gmmds and c\prcssing no opinion on the constitutionality of the statutes at issue). To our knowledge, the 

le@slaNrc has not amended this chapter since it was declared unconstitutional, despite the district court’s 

urging. See id. You ask about the application of chapter 106 to a particular class of employees; your 

request does not require this olke to consider its constitutionality. In this opinion, WC mucky answu 

your qwstions regarding staNtory conslnulion ofcbpler 106. We do not cons&r its Wn5liNtidity. 

?kction 106.001 defines ‘kility~ for pmposcs of chapter 106. tkction 106.002 delineates the 

applicability of the clmpler to various facility Cmpl-. 

p. 1229 
Mr. Burton F. Raiford - Page 2 0X4-238) 

administrator or a nurse, without foUow+ng the procedures under this chapter for a 

crimd conviction check.” Id 4 106.004(b). Although subsection (b) exempts facilities 

from submitting the names of prospective employees “licensed under other law” to the 

department, subsection (d) requires the department to obtain a criminal conviction check 

for such persons employed at a thcihty upon the fhcilitys request. See id 5 106.004(d). 

In addition, section 106.008(a) provides that a facility may not hire a person or 

shall immediately terminate a person’s employment if the results of the check reveal that 

the person has been convicted of an offense listed under section 106.003(b). The offenses 

listed under section 106.003(b) include a misdemeanor or felony classified as an offense 

against the person or family, a misdemeanor or felony classified as public indecency, a 

wntrolled substance felony, a felony in violation of section 31.03 of the Penal Code, 

robbery or aggravated robbery under chapter 29 of the Penal Code, or burglary under 

section 30.02 of the Penal Code. Id 0 106.003(b), see afso Attorney General Opinion 

JM-1237 (1990) (addressing the scope of criminal conviction checks under chapter 106 of 

the Human Resources Code).S 

You inform us that a ficilii voluntarily requested the department to obtain a 

crhinal conviction check of an existing employee, a licensed vocational nurse, pursuant to 

section 106.004(d). The check revealed a history of convictions of offenses listed under 

section 106.003(b). After the facility was notified of the results of the check, it asked the 

department if it is requimd to discharge the employee given that it was exempted from 

seeking the criminal wnviction check in the first place pursuant to section 106.004(b). 

You fin&r inform us that there has been no revocation proceeding against the vocational 

nurse by the licensing agency. In light of this situation, you ask whether a facility that 

voluntsrily submits the name of an employee- who is “licensed under other law,” as it is 

permitted to do pursuant to section 106.004(d), is required to terminate the employee if 

the criminal conviction check reveals a wnviction of an offense listed under section 

106.003(b). 

Chapter 106 appears to require a facility that voluntarily submits the name of an 

employee “licensed under other law” for a criminal conviction check pursuant to section 

106.004(d) to terminate the employee if the check reveals a conviction of an offense listed 

under section 106.003(b). Section 106.008(a) provides in pertinent part: 

[A] facility may not hire a person covered by this chapter or shall 

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) of this code. 

‘SubswtiollS @) and (C) of section 106.008 previdc that a facility may anploy or wntinuc N 

employ a person convicIed of a controlled subslance offense or a pus4n wnvicted under SC&on 31.03 of 

the Penal code under catah weditions. 

p. 1230 
Mr. Burton F. Raiford - Page 3 (DM-238) 

Clearly, the prohibition against hiring “a person covered by this chapter” t&s to job 

applicants for whom facilities are required to obtain criminal conviction checks pursuant to 

section 106.004(a) before offering pwnanent employment. We also believe that this 

phrase refers to applicants who may have been offered temporary employment pending the 

outwme of a criminal conviction check under section 106.0054 The requirement that a 

facility “immediately terminate a person’s employment,” on the other hand, appears to 

refer to persons “licensed under other law” employed by facilities for whom facilities may 

obtain criminal background checks pursuant to section 106.004(d). We note, however, 

that this requirement could also be read to refer solely to persons who may have been 

temporarily employed pending the outcome of a criminal conviction check under section 

106.005. Because the requirement that a facility “immediately terminate a person’s 

employment” is ambiguous, we turn to the legislative history for guidance. 

The legislative history supports the conclusion that section 106.008(a) of the 

Human Resources Code requires a facility that voluntarily obtains a criminal conviction 

check of an employee ‘licensed under other law” to terminate the employee in the event 

the check reveals a conviction of a listed offense. The legislation enacting chapter 106 of 

the Human Resourws Code also repealed former article 4442c, section 18, V.T.C.S., an 

ahnost identical statutory provision. See Acts 1989, 71st Leg., ch. 1181, $5 1, 2 (etT 

Sept. 1, 1989); Acts 1989. fist Leg., ch. 1225, @ 1.4 (eff Sept. 1, 1989). Chapter 106 

of the Human Resources Code changed the requirements of section 18 of former article 

4442c only in very limited respects. 

Specifically, chapter 106 added a more detailed definition of the facilities covered 

by the chapter, Hum. Res. Code 9 106.001. and clarified that the criminal conviction 

check requirements apply to persons applying for employment with a home health agency 

only if the person will be employed in a position which involves direct contact with a 

wnsumer of home health services, id 4 106.002(b). It also added robbety, aggravated 

robbery, and burglary to the list of offenses a conviction for which would require a facility 

to refuse to hire or to discharge a person, id 3 106.003(b)(S), (6) and provided that a 

facility may employ or continue to employ a person convicted under section 3 1.03 of the 

Penal Code under certain conditions, id 8 106.008(c). Finally, it addressed the 

applicability of the criminal conviction check provisions to a federally-required nurse aide 

registry program. Id. 5 106.012. None of the changes affected the provisions mandating 

that facilities obtain criminal conviction checks for certain prospective, unlicensed 

;;.&ets, permitting facilities to obtain criminal conviction checks for employees 

“licensed under other law,” or mandating that facilities not hire prospective employees or 

terminate existing employees if the criminal conviction check reveals a conviction of a 

listed offense. Nor does anything in the legislative history indicate that the legislature 

intended to alter these substantive provisions of former section 18, article 4442~. 

‘Section 106.005 pm&s facilities to c&r such a job appticaat tempemry emp@m.eat pending a 

criminal wnviclion check. 

p. 1231 
Mr. BurtonF. Raiford - Page 4 (DH-238) 

Section 18(g) of former article 4442~. V.T.C.S., provided as follows: 

H)f the results of a miminat conviction check reveal that an 

applicant for employment at a nursing home or custodial care home 

has been convicted of an offense listed in Subsection (d) of this 

section, the institution may not hire the person. . . mf the results of 

a criminal conviction check reveal that an employr or u person 

hired on u temportny busis under Subsection (c) of this section has 

been convicted of an offense listed in Subsection (d) of this section, 

the institution shall immediately terminate the person’s employment. 

Acts 1987, 70th Leg., ch. 1048. 8 1. at 3516 (emphasis added). Clearly, under section 

18(g) of former article 4442c, the department’s discovery of a history of certain criminal 

convictions prohibited a facility from hiring a person and required a faciity to terminate 

both persons hired on a temporary basis pending a criminal conviction check and 

employees “licensed under other law” for whom criminal conviction checks were available 

but not required. Because nothing in the text or legislative history of the cutrent provision 

indicates that the legislature intended to change this very significant aspect of the law 

when it repeated section 18 of former article 4442c, V.T.C.S., and enacted chapter 106 of 

the Human Resources Code, we conclude that section 106.008(a) requires a facility that 

vohmtarily obtains a criminal conviction check of an employee “licensed under other law” 

to terminate the employee in the event the check reveals a conviction of an offense listed 

under section 106.003(b).5 

SUMMARY 

Pursuant to section 106.008(a) of the Human Resources Code, a 

facility that voluntarily obtains a uiminal conviction check of an 

employee “licensed under other law” is required to terminate the 

employee in the event the check reveals a conviction of an offmse 

listed under section 106.003(b). 

DAN MORALES 

Attorney General of Texas 

%f course, under section 106.008, a facility may continue IO employ a person convicted of a 

wntrolled substance offense or a person wnvictcd under section 31.03 of UK Penal &de under ccdn 

wnditionr. See Hum. Res. Code 5 lO&WS(b). (c). 

p. 1232 
Mr. Burton F. Raiford - Page 5 (DM-238) 

WILL PRYOR 

Fii Assistant Attorney General 

MARYKELLER 

Deputy Attorney General for Litigation 

RENEA HICKS 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Mary R. Grouter 

Assistant Attorney General 

p. 1233