### DAN MORALES

.ATTORSLI CENERA!. 

## QBffice

of tip Bttotnep Qhneral Sbtateof 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 ifthe 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 statedistrict judge has ndcd Ihatprovisionsof chapter106 of the Human ResourcesCodeviolatethe TexasConstitution on the basii thattheyfail to give ternhated employees ..A,6 3;ihcreasons

fortheirtmninationoranopportunity tobeheard.G&tie v. Tcxar Lkp’r ojffumrm Srrvs... No. 913668 (Din. Cl.ofTravisCounty, 345tbJudicial

Din. ofTexa%

Jan.24.1992). @‘d, No, 3- 92-3393 flex. Am.-Austin, March 17. 1993, n.w.b) (affmning the districtanut on prombat gmmds andc\prcssingnoopinionontheconstitutionality ofthestatutes

atissue). Toourknowledge, the le@slaNrc

hasnotamended

thischapter

sinceitwasdeclared

unconstitutional,

despitethedistrict

court’s urging. See id. You askaboutthe application of chapter106to a particular classof employees;

your requestdoes not require this olke to considerits constitutionality.In this opinion,WC muckyanswu yourqwstions regarding staNtory conslnulion ofcbpler 106. Wedonotcons&r itsWn5liNtidity.

?kction 106.001defines‘kility~ forpmposcsofchapter106. tkction 106.002delineates the applicability

oftheclmpler

tovarious

facilityCmpl-.

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

administrator or a nurse, without foUow+ngthe 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 ifthe 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 106.008previdcthat a facility may anploy or wntinuc N employa personconvicIedofa controlled subslanceoffenseora pus4n wnvicted underSC&on 31.03 of thePenalcode undercatah weditions.

p. 1230Mr. 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 31.03 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 106.005pm&s facilitiestoc&r suchajobappticaattempemry emp@m.eat

pendinga criminalwnviclioncheck.

p. 1231Mr. 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,undersection 106.008,a facilitymaycontinueIO employa personconvictedof a wntrolled substanceoffenseora personwnvictcd undersection31.03 of UKPenal &de underccdn wnditionr. See **Hum.**

Res.Code5 lO&WS(b).

(c).

p. 1232Mr. 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