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## @fficeoftip 2lttornep Qhneral &ate oflEexa5 December l&l991 Ms.Brenda H. Collier Chair Opinion No. DM-68 Texas Board ofPrivate 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 ofafelony (RQ-96) Dear Ms.Collier: The Texas Board ofPrivate 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 ofthe private security industry. SeeV.T.C.S. art. 4413(29bb).l You ask whether the board is authorized under section 11Bof the act to bring a disciplinary proceeding against a licensee, registrant, or commissioned security officer who has not been convicted ofcommitting 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 aviolent 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 asaninvestigation company or security services contractor. Id 9 2(U), (17). A “registration” isapermit issued to an individual authorizing the performance ofvarious investigative’ and security services. Id 52(21), (22). A “security oft&r commission’ authorizes asecurity ofticer to carry afuearm during the performance ofhisduties asasecurity officer. Id 52(U). Security ofticers who arc. registered but not commissioned may not carry firearms during the performance of their duties.

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disciplinary action pursuant to a hearing in which proof isoffered that aparticular individual’s conduct violates standards the board establishes byrule. 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, onprooE (1) that the applicant, licensee, commissioned security officer, or registrant has violated any provisions ofthis 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 ofafelony; (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 ofthe board’s rules.2 V.T.C.S. art. 4413(29bb), 9llB(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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Ifthe 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 uLsoTexu~Dep’t of Health v. Gulf Nuclear, Inc., 664 S.W.2d 847 (Tex. Civ. App.--Austin 1984,no writ) (APTRA mandates provision ofhearing 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 ofconduct for “licensees” that apply to a registrant or acommissioned security officer aswell asto alicensee. Seeid. 5423.12 (defining “[llicense” for purposes ofrules). Section 423.1provides inpart:

(f) No licensee, owner, officer, partner, shareholder, or employee shall be involved in the following:

. . . . (2) indictment on afelony involving anon-violent crime; (3) filing ofcriminal 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, avalid rule must not impose “additional burdens, conditions, or restrictions beyond or inconsistent with the statutory provisions.” Hollywood Calling v.Public UtileComm’n ofTexas, 805S.W.Zd618, 620(Tex. App.--Austin 1991,no writ) (additional restriction invalid since not part ofstatute’s specific restrictions on user); see&o Bloom v. Texus State

section 18of 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,at2900.

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Bd. ofExaminers ofPsychologists, 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 asprovided inthis Act; (2) to investigate alleged violations ofthe provisions ofthis Act and ofany rules and regulations adopted bythe board; (3) to promulgate all rules and regulations necessary in carrying out the provisions ofthis Act; and (4) to establish and enforce standards governing the safety and conduct of persons licensed, registered, and commissioned under the provisions ofthis 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 ofan 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 aviolation 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 ofcommission 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 11Breprimand a licensee, registrant, or commissioned security officer, or revoke or suspend alicense, registration, or security officer commission of

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aperson 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 asprovided bysection 11Bofthe 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), ofthe 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 aperson 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 aperson’s violation of such rules after

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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 ofTexas 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 byCeleste Baker Assistant Attorney General

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