JIM MAlTOX Attorney General

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AnEqualOpportunityI Affirmative Action Employer 

# TheAttorney General ofTexas
April 23, 1986

Mr.BobE. BradleT Executive Director Texas State Board of Public Accountancy 1033LaPosada, Su,Lte340 Austin, Texas 10 ’152 Opidion No.m-482

Ret Reconsideration **of** Attorney General Opinion 34-290 (1984). which construed article 6252-13c, V.T.C.S., to require a licensiog agency to revoke the license of any individual convicted of afeloty
DearMr. Bradley: You have asked for advice about implementing Attorney General Opinion JM-290 (1984). which interpreted article 6252-13c, V.T.C.S., to require a licensing board to revoke au individual's license upon his conviction o:i a felony while licensed. Your opinion request has caused us to reconsider the conclusion resched in Attorney General Opinion JM-290 (1984). Article 625:!-13c, V.T.C.S.. was enacted as section 1 of Senate Blll No. 247by theSixty-seventh Legislature. Acts 1981, 67th Leg., ch. 267 at 694. Senate Bill No. 247 also included as section 2the provisions codified as article 6252-13d, V.T.C.S. The legislation enacted as Senate Bill No. 247reads in part:

Artlclo 6252-13~

. . *,

. Set, 4. (a) Alicea stng authority maysuspend or revske au existing valid license, disqualify aperson from receiving a license, or deny to a person 1

:he opportunity to be examined for alicense becauw of a persou's conviction of a felony or u&de&&or if the crime directly relates to the dutieslaud responsibilities of the licensed occupation. (b) In determining whether a criminal conviction directly relates to au occupation. the licenstag authority shall consider:

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(1) the natur,e andseriousness of the crime; (2) the relationship of the crime to the purposes for requl.rlng a license to engage la the occupatioo; (3) the **extent** to which a license might offer an opportunity t,o engage in further criminal activity of the same type as that in which the person previously hadbeen Involved; and (4) the relat:ionship of the crime to the ability, capacit:r,, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. (c) In addition to the factors **chat** may be considered under Subsection (b) of this section. the,liccnsing authority, in determining the present fitness of a pewon whohas been convIcted of a crime, shall conlr%derthe folloving evidence: (1) the extmt andnature of the person’s past criminal actlvit:r:; (2) the age of the person at the time of the cormcission of the crime; (3) the amountof time that has elapsed since the person’s last criminal activity; (4) the conduct andworkactivity of the person prior to andfollovlng the criminal activity; (5) evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or following releare; (6) other c:vidence of the person’s present fitness, 1nclud:ing letters of rectmeendation from: prosecution, liw enforcement, and correctional officers whoprosecuted, arrested, or hadcustodial responsibility for the perscn; the sheriff and chief **of** police in the communitywhere the person restdes; andanyother persons In contact with the convicted person;; and (7) it sha’L:Lbe the responsibility of the applicant to the extent possible to secure and

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.l

provide to the llceasing authority **tht** recomendations of the pI,ostcution, law 

### l nforcextnt, and correctional authorities as required under this Act.

. . . (d) Proceedingis held before a statt licensing authority to establish factors contained **ID** this section are governed by the Administrative Proctdure and Texas Register Act, a6 amended (Article 6252-13a, Vernon’s Texas Civil Statutes). (e) Qon’a lictnste’s felony conviction, felony probation revocation, revocation of parole, or revocation of &datory shall berevoked.- supervision. his license

Art. 6252-13d. Section 1. [Adds art. 6252-13~1

stc. 2. If t. licensing authority suspends or revokes 6 valid- license or denies a ptrson a license or the Opportunity to be examined for a licenst because t? the person’6 prior conviction of a crime and the?relationship of the crime to the license. the licensing authority shall notify the person inwriting;: (1) of the reasons for the suspension, revocation, denial., or disqualification;
(2) of the rwiew procedure provided bySection 3of this Act; and (3) of the earliest date that the person may appeal. Sec. 3. [rev,Levprocedure] Sec. 4. (a) Each llctnsing authority. shall issue vithin six month6after the effective date of this Act guidelines relating to the actual practice of the authority in carrying out Section 1of this Act.

. . ,
sec. 5. This Act shall not apply to those persons licensed by the TtX66 State Board of Medical Examiners,, State Board of Pharmacy, State Board of Dents]. Examiners, or The Veterinary

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.

Licensing Act

. . . andvhohavebeen convicted of a felony under the Texas Controlled Substances Act

. . . or the Texas Dangerous Drug Act.

. . . (Emphasis added; citations omitted from section 5 of article 6252-l?'d, V.T.C.S.). (Emphasieadded). Section 4(a) of article 6252-13~ appeare on its face to be inconsistent vith other provisions of Eouse Bill Ro. 247; in fact, sect&m 4(e) appears to be radically inconsistmt In tone with the entire rest **of** the bill. Section 4(a) of article 6252-13c, V.T.C.S.. States that a l~censlng au:hority muasuspend or revoke an existing license because of a felonI, conviction If the crime directly relates to the duties and respouslbllitles of the licensed occupation. Section 4(e) of that statute, however, states that upou a licensee's felony conviction, his license shall be revoked. This latter provision suggests **that** the,licansi~thority has a mandatory duty to revoke a license vhen its holder Is finally convicted of a felony, andthat the board has no dJ;scretion to act otherwise in such cases. Attorney General Opinion J'B-290 (1984) addressed the conflict between section 4(a) andsection 4(e) and determined that section 4(e) did in fact Impose a mandatory duty on licensing agencies to revoka the license of a convicted feltm. It read section 4(a) as applicable to felony convictions occurr1.n.g before the individual applied for a license, and section 4(c) as applicable to felony convictions occurr%ngwhile licensed. This opinion did not address other conflicting provisions in Rouse Bill No. 247. Sect%,>115 of article 6252-13d. V.T.C.S., states that the act does not apply to certain licensees Inhealth professions who have been convicted of a felouy under the Texas Controlled Substances Act, article 4476-15, V.T.C.S.. or the Texas Dangerous Drug Act, article 4476-14, V.T.C.S. Thelicenses of the enumerated medical practitioners are subject to mandatory revocation for a felony conviction under either ari:Lcle 4476-14 or article 4476-15. V.T.C.S. arts. 4495b. 14.01 (physic:Lans); 4542a, 112A (pharmacists); 4549-l (dentists); 7465a. 114 (v~,terlnarians); matted by Acts 1981, 67th Leg., ch. 52 **at** 101. **If** Bouse Bill Bo. 247 In fact mandates license revocatlou upon a felony couvlction in all cases, the exception In section S of article 6:!52-13d is meaningless surplusage. The inclusion of this axception suggests that the legislature did not Intend to require revocation of all occupational and professional licenses uponthe felony c,mviction of the licensee. The courts have looked to exceptions in statutes to determine the class of persons covered by the statute. Sm. e.g., State v. Richards. 301 S.W.2d 597 ~TZw~90~)[j4St%$%~'vrit refri n.r.e.). Dowlearn 489 S.W.2d 140 (Tex. Civ. App.

Moreover, section 2 of article 6252-13d, V.T.C.S., requires written notification of aperson "[iIf allcens%ng authority suspends

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**or** revokes a valid license

. . . because of the perscn’s prior conviction of a crime and **the** relationship of the crime to **the** license.

. . .” Thus, section 2of article 6252-13d, V.T.C.S., appears to be inconsistent vith suction b(e) of article 6252-13~. V.T.C.S., yet another ambiguity **in** EauseBill go. 247. Attorney General Opln:.on JM-290did not investigate the leglslarive histcry of BouseBill ho. 247, **vhich** wenowbelieve Is essential to an understanding of this enactment. Tn construing an ambiguous statute, vhich Bouse Bill **No.** 247 undoubtedly is, ve may look to circumstances of its passage that relate to legislative intention. Texas 6N.O.R. Co.v. Railroad Commission, 200S.W.2d 626 (Tax. 1947). If **the** meanine of a stat& la ic doubt, reference mavbe madeto legislative joirnals andrwordb , debates, andcommittee reports. F.ed River National **Bank v.**  Faq~, 206 S.W. 923 (Tax. 1918); kiCiOiiiii Carloading **Corp. V.**  Phoenix El PasoExpresg, 178S.W.2d 133 (Tex. Civ. APP. - El Paso), aff ’d, 1% S.W.2d 564 (Tex. 1943)) cert. denied 322 E.S. 747 (1044); Pane. Bassett, 235 S.W. 917 (Tex. Civ. AT.-- El Paso 1921, novr*-. Weturn to an examination of the legislative history of Sousa Bill **No.** 2,47, as a guide to construing the language of section 4(e)

. Eouse Bill No. 247, ss Introduced, was very similar to bills enacted in the twoprior r,essions, only to bevetoed by **the governor.**  **S.B. No.**  1182, 65th Leg. (1977); R.B. **No.** 590, 66th Leg. (1979). See also S.J. of Tex., 65th Leg., R.S., at 2634 (1977); H.J. ofTex., 66th Leg., R.S., at 5292 (197!1); Vetoed Bills 8 Resolutions, **Acts** 1977. 65th Leg., R.S. at 3375; Vetoed Bills hResolutions, Acts 1979, 66th Leg., R.S.. at 3250. Thebill as introduced, and **the** bills from **the** twoprior sessions, ware clj.rected at making liceneed occupations open to rahabilitatsd exoffer,ders. Kouse Committee on Security and Sanctions, Eill Analysis to R.B. No. 247. 67th Leg. (1981). As introduced, RouseBill No,.247 did not Include **the** language found in section 4(e) of article 6:!52-13~; the prototype of this provision wae added by the BouseCommitl:eeon Security andSanctions. P.J. of Tex. 67th Leg., R.S. at 783 1:1981). The bill prohibited e licensing authority from suspending or revokfng an existing valid license because of prior conviction of a crime unless the crime directly related to theduties andresponsibilities of **the** licensed occupation. Eoreover, It also provided that a license could not be suspended or revoked for conviction XEa crime that directly related to the occupation as long as the person showed present fitness and rehabilitaticn following MS release from acorrectional facility. The 1979version of house Bill No. 247 wasvetoed bythe governor because of its provision for licensing an exoffender whose crime directly related to the licensed occupation. Theveto message stated that the standards for reln~bilitation wera too low

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Criteria like satisfactory completion of parole, one **year** lapse s,ince release from prison, or letters of reference are certainly not sufficient to establish real rehabilitation.
Veto Message of Governor Clamants. Tex. E.B. No. 590, 66th Leg. (1979). HouseBill No. 247as it passed the Eouse included provisions for rehabilitation Identical to those which caused the governor’s veto of **the** prior bill. It also included the predecessor of section b(e) of article 6252-13~. V.T.C.S.:

(f) On a 1l:ansee’s final **conviction** of a felony after thl? issuance of his license, the license shall be revoked. **A**person whose license is revoked under **this** subsection maynot receive orbe examined for anylicense. This language was added an a committee amendment,without objection, and adooted as a floor amendment. again without objection. R.J. of **Tex., 67th**  Leg., R.S.. 7f3, 1227 (i981); Bearing on B.B. NO. 247, Before theEouse Commitreezn Security andSanctions, 67th Leg. (March 11, 1981). Discussion in the Senate was directed at correcting the problem vhich led to the governoz’s veto. Discussion In the Senate State Affairs Committee characterized Eouse Bill No. 247 as permitting license reinstatement for persons vith occupational licenses **who are**  discharged from the Deps&ent of Corrections. Bearing on B.B. No. 247 Befora the Senate Stake Affairs Committee, 67th Leg. (April 27, 1981). The Senate commiwee adopted a committee substitute vhich deleted provisions allowing anyonewdischarged fromsentence to get his license back automatically,. Id. Instead, it required the licensing board to review the case anddetermine **that** the offense vas not related to the profession or occupation and **that** the Individual had achieved rehabilitation. Unless both conditions were met. the individual’s license would not be reinstated. Senate floor debate on the committee substitute also emphasized that it allowed the licensing boards to reinstate lic~~nses of exoffendere under the statutory criteria. Debate on E.B. **No.** 247 on the Floor of the Senate, 67th Leg. (May15, 1981). Thu,r,,aperson whohad anoccupational license before sentence could apply for reinstatement of his licensing after incarceration, vhile persons wholearned atrade in prison would **have** to apply for alicense like anyoneelse. Id. - The Senate approved an amendmentconforming the caption to the body of the bill andv0i.e.d to pass Rouse Bill No. 247 as amended. .

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S.J. of Tex. 67th Leg., R.S. at 1287-1290. TheEousaconcurred in the Senate amendment. B.J. of ‘Alex.. 67ch Leg., R.S. at 2982-2986. Throughout Senate confideration of the committee substitute to Eouse Bill No. 247 It contained the troublesome language codified as section 4(e) of article 62X!-13~. V.T.C.S.:

(e) Uponaliccusee’s felony conviction, felony probation revocadon, revocation of parole, or revocation of mandatory supervision, **his** license shall be revoked, (Emphasis added). The “licensee’s felony confliction” In section b(e) should be limited to a felony conviction which results in the licensee’s actual incarceration in the Department of Corrections or another penitentiary. Anaxamination of s,xction 4(e) as avhole showsthat the other events requiring license **“ revocation** **”** under section b(e) apply to s-one whois already a c:anvicted felon andwhose conduct requires himto be incarcerated or raincarcerated in the penitentiary. Section b(e) implies that a convicts-d felon on probation or parole or under mandatory supervision mayhold alicense that will berevoked whenhis probation, parole, or mandatory supervision is revoked. Webelieve section 4(e) requires license suspension only while the felon is physically incarcerated: Section b(e) **of** article 6252-13~. V.T.C.S., thus does not apply **to** s licensee placed onprobation after a felony **conviction;** the licensing board’s authority to discipline the licensee in such cases is governed by the permissive provisions of section 4(a) through 4(d) **of** article 6252-13~. V.T.C.S. Section **4(e)** of **artLcle** 6252-13~. V.T.C.S., does require a license tobe revoked when**the** licensee’s felony conviction results in his incarceration, or vhen his felony probation, parole, or mandatory supervision is revoked. Licenses revoked under section b(e) are, hovever, subject to possible reinstatement following the procedures found **in** section 4(a) th::ough 4(d). The legislature consistently characterizes HouseBill No. 247as providing for rainstatement of an exoffender’s license. If an individual’s license Is revoked under section 4(e). he maynot **1~:**required to reapply andqualify for the licensee as a first-time annlicant %norder to resume his former status as a licensee. Set!cxas hN.O.R.G. v. Railroad Commission, supra (whenthe 1eglsLat-I;; purpose is ascertainad, the significance of words maybe restricted or enlarged to give **meaning** the legislature intended). Whether an exoffender’s license will be reinstated is to be determined in accordancr: with sections 4(a) through 4(d) of article 6252-13~. V.T.C.S. In summary,the mande,tory license revocation provisipn found in section 4(e) applies in a narrower class of felony convictions than suggested la Attorney General Opinion JM-290. Moreover, anindividual

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whose license is revokad purcuant to section b(e) of article 6252-13~. V.T.C.S.. mayseek relnstattalent under the procedures of that statute. Attorney General Opinion N-290 is overruled to the extent it IS Inconsistent with this opidon. Weturn to your specffia questions. Youesk bowthe State Board of Public Accountancy should apply Attorney Ganeral Opinion JM-290in carrying out its duties under article bla-1. V.T.C.S., the Public Accountancy Act of 1979. WI:will address your questions in accordance with the interpretation of article 6252-13~. V.T.C.S.. given in this opinion. Your first twoquestlow **are**as follows:

1. DoesAttorney General Opinion 311-290extend to all licensees of the Texas State Board of - Public Accountancy, or 2. Does Attorney General Opinion JM-290apply only to individuals receiving certificates and original licenses after the effective date of article 6252-13c, V.T.C.S.? Article 6252-13c, V.T.C.S., applies to all licensees of

..the Texas State Board of Public Accountancy. Tte board is a "licensing authority" subject to the set. See V.T.C.S. art. 6252-13~. II; see also V.T.C.S. art. 6252-,13a, s?Ti), (4) (defining "agency" and "licensing" for purposes of article 6252-13~. V.T.C.S.). The exceptions to article 62S2-13c, V.T.C.S.. vhich cover **the** SupremeCourt, persons licensed under its authority, andany person vho Is or seeks tobecome apeace officer, d,onot apply to licensees ofyour board. Article 6252-13~. V.T.,C.S., applies to all licenses issued by the Texas State Board of Public: Accountancy, andnot onLyto licenses held by individuals whowere first licensed after the effective date of the statute. Article 4(e), the provision requiring revocation of licenses, .applies to the following events occurring after tLweffective date of article 6252-13~. V.T.C.S.: the licensee's felony convictions resulting in incarceraticn, and the revocation of his probation, parole, or mandatory supc~vision. See Government Personnel Mutual Life Insurance Co. v. Weal;,,251 S.W.2d525 (Tax. 1952) (statutes are presumedto operate prospc:nively). Yourquestions number,threeandseven are as follows:

3. Assuming the answer to question No. 1 is affirmative and the board is requtred **to** amend Substantive Rule 525, whatvould be the effective

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date for implementation of the revocation policy (e.g., "Pan adoption of article 6252-13~. V.T.C.S., uponacllendwntof board rules to Include revocation of s license for conviction of a felony, etc.)?
7. If the e~!fective date for implementation were upon adoption of article 6252-13~. V.T.C.S., would a 'grandfat,her clause' excluding individuals licensed between the effective date for implemencation andthe drte of amendmentof board mles be acceptable? Since your stateroent &out amendingSubstantive Rule 525is based onthe interpretation of article 6252-13~. V.T.C.S., given in Attorney General Opinion J'M-290,webelieve you should consider the question of amendment**in** light of this opinion. Article 6252-13c, V.I.C.S.. became effective September 1, 1981. Inolementation of a statuta begins with its effective date, and the board maynot postpone the affective date bypromulgating amle. See State v. Jackson, 376S.W.:!d 341 (Tex. 1964); Attorney General CpinG W-204 (1980). Yourfourth andfifth questions are as follows:

4. If the h;uswer to question No. 1 is affirnative. 1~u:31:all renewal applications for licenses with tlhe board be submitted to the Zlcpartaent of Public Safety for a check of conviction records?
5. What check of conviction records must **the** board n&e on !.l.censees living outside of Texas andwhat check of records musr rhr board uake on federal convictions? Section 3of article 6252-13~. V.T.C.S.. provides as follows:

Sec. 3. All agencies of this state and its political subdfi,isions with the duty andresponsibility of licensing and regulating members of particular tradl?s, occupations, businesses. vocations, or profe:3siors shall have the authority to obtain from the Texas Department of Public Safety or from a local lawenforcercent agency the record of any convictj,on of any perscr. applying for or holding alicenru: fromthe requesting agency.

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This provision authorizes. blatdoes not require, alicensing agency to obtain conviction records fr:owthe Texas Department of Public Safety or * local lawenforcement agency. Prior **to** the enactment of article 6252-13~. V.T.C.S., the Public Accountancy Act authorized the revocation of licenses upon"final conviction of a felony under the laws of any state or the United States." (Emphasis added). V.T.C.S. art. 41a-1, 521(S). SeeActs 1FK 57th Leg., ch. 289. at 608, 617. Presumably the box obtain& information about felony convictions to use in exercising this power under its enabling statute, and it nay continue to use the sane sources of infomation to implement section 4(e) of article 6252-13~. Moreover, **the** mandatory duty to revoke a license for a felony conviction applies only when the conviction results in incarceration. Thus( records of admissions to state prisons could be another source of information for theboard.
Your sixth question is contingent ondifferent answers frox those wegave. Accordingly, wenc.ednot answer it. Your eighth question 11;as follows:

8. Wouldthe revocation procedure require the board hearing process as specified in the Public Accountancy Act cf 1979. as amended, sections 21 and22? Only sectton 22 of articlle 41a-1, V.T.C.S., sets out a hearing procedure. Section 21 stiltes conduct for which a license may be suspended **OK** revoked, anddirects that section 22shall be followed. Wewill limit our answer to the portions of these statutes governing procedures. Section 4(d) **of** article 6252-13~. V.T.C.S., states that

(d) Proceedings held before a state licensing authority to est,~blish factors contained in this section are governed by the Administrative Procedure andTexas Register Act, as amended(Article 6252-13a, Vernon's Texas Civil Statutes). The Administrative Procedure Act sets out the procedural rules for establishing factors included in section 4 of article 6252-13~. V.T.C.S. Theboard mayf,>:Llowprocedures set out in section 22 of article 41a-1, V.T.C.S., tc,the extent these are not inconsistent with the Administrative Procedum Act. SUMMARY Section 4(a) of article 6252-13c, V.T.C.S., requires a licensing agency to suspend a license upona licensee's felony conviction which results in incarceration, or upon revocation of his felony

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probation. parol.e,. or mandatory supervision. Attorney General Opinion JM-290 (1984) is overruled to the extmt it is inconsistent with this opinion.

JIM MATTOX Attorney General of Texas Veryltruly yours.

t&c

JACKBIGBTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorney General ROBERT

GRAY Special Assistant Attorney General RICXGILPIN Chairman, Opiniou Comittec: Prepared by SusanL. Garrlrmn Assistant Attorney General

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