DAN MORALES 

.~TTImx;EI WSER.4L 

@ffice of tip 2lttornep Qhneral 

&ate of lEexa5 

December l&l991 

Ms. Brenda H. Collier 

Chair 

Opinion No. DM-68 

Texas Board of Private Investigators 

and Private Security Agencies 

P.O. Box 13509, Capitol Station 

Austin, Texas 78711 

Re: Whether article 4413(29bb), 

V.T.C.S., authorizes the Texas Board of 

Private Investigators and Private Security 

Agencies to bring disciplinary proceedings against a licensee, registrant, or commissioned security officer indicted for or 

charged with but not .convicted of the 

commission of a felony (RQ-96) 

Dear Ms. Collier: 

The Texas Board of Private Investigators and Private Security Agencies (the 

“board”) is authorized by The Private Investigators and Private Security Agencies 

Act (the “act”) to regulate certain private investigative activities and various aspects 

of the private security industry. See V.T.C.S. art. 4413(29bb).l You ask whether the 

board is authorized under section 11B of the act to bring a disciplinary proceeding 

against a licensee, registrant, or commissioned security officer who has not been 

convicted of committing a felony, but who has been either indicted for commission 

of a felony involving a non-violent crime or charged with commission of a felony 

involving a violent crime. 

We conclude that the board may not, on the basis of an indictment or the 

filing of felony charges alone, take such action. The board may only take 

9%~ act authorizes the board to issue keases, registrations, and security officer commissions. 

See, e.&, V.T.C.S. art. 44l3(29bb), 9% I3 - 15.19 - 20.32 - 33. A “license” authorizes an individual or 

entity to perform services as an investigation company or security services contractor. Id 9 2(U), (17). 

A “registration” is a permit issued to an individual authorizing the performance of various investigative’ 

and security services. Id 5 2(21), (22). A “security oft&r commission’ authorizes a security ofticer to 

carry a fuearm during the performance of his duties as a security officer. Id 5 2(U). Security ofticers 

who arc. registered but not commissioned may not carry firearms during the performance of their 

duties. 

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Ms. Brenda H. Collier - Page 2 (DM-68) 

disciplinary action pursuant to a hearing in which proof is offered that a particular 

individual’s conduct violates standards the board establishes by rule. 

Subsection (a) of section 11B of the act authorizes the board to discipline 

licensees, registrants, and commissioned security officers. Subsection (a) provides in 

part: 

(a) The board shall revoke or suspend any registration, 

license, or security officer commission, reprimand any registrant, 

licensee, or commissioned security officer, or deny an 

application for a registration, license, or security officer 

commission, or renewal, thereof, or may place on probation a 

person whose registration, license, or security officer 

commission has been suspended, on prooE 

(1) that the applicant, licensee, commissioned security 

officer, or registrant has violated any provisions of this Act or of 

the rules and regulations promulgated under this Act; 

(2) that the applicant, licensee, commissioned security 

officer, or registrant has committed any act resulting in 

conviction of a felony; 

(3) that the applicant, licensee, commissioned security 

officer, or registrant has committed an act after the date of 

application for a registration, license, or security officer 

commission that results in a conviction of a misdemeanor 

involving moral turpitude. 

V.T.C.S. art. 4413(29bb), 5 llB(a); see, also id. 0 llB(e)~ (in instances board 

authorized to suspend a license, it may impose civil penalty in lieu of suspension). 

The board is thus required to bring disciplinary proceedings against an applicant, 

licensee, registrant, or commissioned security officer who violates any provision of 

the act or of the board’s rules.2 V.T.C.S. art. 4413(29bb), 9 llB(a)(l). 

*Section 11B was added to the act in 1975. Acts 1975, 64th Leg., ch. 494, 8 1, at l318. 

Subsection (a) of that section initially permitted but did not require the board to bring disciplinary 

proceedings. See also Attorney General Opinion M-884 (1971) (construing predecessor section, 

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Ms. Brenda H. Collier - Page 3 (DM-68) 

If the board initiates a disciplinary proceeding against a person pursuant to 

subsection (a) of section llB, that person is entitled to a hearing before the board 

governed by the Administrative Procedure and Texas Register Act. Id. $ llB(b), 

(c). In accordance with that act, no license may be suspended, revoked, or annulled 

unless its holder has been provided notice and a hearing prior to suspension, 

revocation, or annulment. V.T.C.S. art. 6252.13a, 5 18(c); see uLso Texu~ Dep’t of 

Health v. Gulf Nuclear, Inc., 664 S.W.2d 847 (Tex. Civ. App.--Austin 1984, no writ) 

(APTRA mandates provision of hearing before license suspension). 

We turn now to the ,rules at issue here. The board has adopted by rule a 

“Code of Professional Responsibility and Conduct.” 22 T.A.C. $5 423.1 - 423.3. 

Section 423.1 establishes certain standards of conduct for “licensees” that apply to a 

registrant or a commissioned security officer as well as to a licensee. See id. 5 423.12 

(defining “[llicense” for purposes of rules). Section 423.1 provides in part: 

(f) No licensee, owner, officer, partner, shareholder, or 

employee shall be involved in the following: 

. . . . 

(2) indictment on a felony involving a non-violent crime; 

(3) filing of criminal charges on a felony involving a violent 

crime. 

Under Texas administrative law, agency rules are valid only if expressly or 

impliedly authorized by statute. State v. Jackson, 376 S.W.2d 341 (Tex. 1964); Bexar 

County Bail Bond Bo! v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.--San Antonio 

1980, no writ); Attorney General Opinion JM-1017 (1989). Thus, a valid rule must 

not impose “additional burdens, conditions, or restrictions beyond or inconsistent 

with the statutory provisions.” Hollywood Calling v. Public Utile Comm’n of Texas, 

805 S.W.Zd 618, 620 (Tex. App.--Austin 1991, no writ) (additional restriction invalid 

since not part of statute’s specific restrictions on user); see &o Bloom v. Texus State 

section 18 of act, and holding board had discretionary authority to issue license to convicted felon). 

The legislatare made subsection (a) mandatory in 1981. Acts 1981,67th Leg., cb. 773,s 9, at 2900. 

p. 341 
Ms. Brenda H. Collier - Page 4 (DM-68) 

Bd. of Examiners of Psychologists, 492 S.W.2d 460 (Tex. 1973) (board certification 

requirement in addition to those in statute void). 

No provision of the act expressly grants the board the power to adopt 

subsections (f’)(2) and (f)(3) of section 423.1. Nor does any provision provide the 

board the implied power to adopt those subsections. Section 11(a) of the act 

currently provides that the board shall have the power and duty: 

(1) to determine the qualifications of licensees, registrants, 

and commissioned security officers as provided in this Act; 

(2) to investigate alleged violations of the provisions of this 

Act and of any rules and regulations adopted by the board; 

(3) to promulgate all rules and regulations necessary in 

carrying out the provisions of this Act; and 

(4) to establish and enforce standards governing the safety 

and conduct of persons licensed, registered, and commissioned 

under the provisions of this Act. 

The rules at issue here are inconsistent with these provisions. In accordance 

with subsections (a)(3) and (a)(4) of section 11, the board may adopt rules 

identifying and prohibiting specific conduct. Upon proof of an individual’s violation 

of such rules after notice and hearing, the board would be authorized pursuant to 

section 11B to discipline that individual by revoking or suspending his license, 

registration, or commission. An administrative hearing on a violation of such rules 

would necessarily involve proof of commission of the prohibited conduct. In 

contrast, subsections (f)(2) and (f)(3) by their express terms authorize the board to 

discipline an individual merely on the filing of an indictment or criminal charges, 

and thus, without proof of commission of the conduct underlying the indictment or 

charges. Since the board may not impose restrictions that are inconsistent with its 

statutory powers, subsections (f)(2) and (f)(3) are invalid. 

In summary, the board possesses neither the express nor the implied power 

to adopt subsections (f)(2) and (f)(3) of section 423.1 of title 22 of the Texas 

Administrative Code. Consequently, the board may not pursuant to V.T.C.S. article 

4413(29bb), section 11B reprimand a licensee, registrant, or commissioned security 

officer, or revoke or suspend a license, registration, or security officer commission of 

P. 342 
Ms. Brenda H. Collier - Page 5 (DM-68) 

a person who has been indicted for or charged with but not convicted of a felony. 

Although we conclude the rules at issue here are invalid, the legislature in section 

11(a)(4) has expressly given the board the authority to establish and enforce 

standards governing the conduct of a licensee, registrant, or commissioned security 

officer, and in accordance with that authority the board may adopt rules prohibiting 

a licensee, registrant, or commissioned security officer from engaging in specific 

conduct, including specific criminal conduct. If the board adopts such a rule, the 

board could then discipline any person violating the rule by suspending or revoking 

his license, registration, or commission as provided by section 11B of the act. 

SUMMARY 

Under article 4413(29bb), V.T.C.S., the Texas Board of 

Private Investigators and Private Security Agencies possesses 

neither the express nor the implied power to adopt title 22, 

section 423.1(f)(2) and (f)(3), of the Texas Administrative Code. 

Thus, the board may not pursuant to V.T.C.S. article 

4413(29bb), section 11B reprimand a licensee, registrant, or 

commissioned security officer, or revoke or suspend a license, 

registration, or security officer commission of a person who has 

been indicted for or charged with but not convicted of a felony. 

The board, however, is authorized by section 11(a)(3) and 

11(a)(4) of the act to adopt rules prohibiting specific criminal 

conduct, and on proof of a person’s violation of such rules after 

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Ms. Brenda H. Collier - Page 6 (~~-68) 

notice and hearing, revoke or suspend that person’s license, 

registration, or commission as provided by section 11B of the 

act. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLJE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Celeste Baker 

Assistant Attorney General 

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