II’1MAlTOX 4 xney General

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AnEqualOpportunityI firmath ActionEmploysr 

# TheAttorney General ofTexas

Decetdler 31, 1984

WoodrowW.Iliac, P.E. Executive Director Opinion No.JM-290
Texas State Board of Registration for Professional Kngineers P. 0. Drawer 18329 Austin, Texas 78760
Dear Mr.Mize: Re: Whether the license of aregistered engineer must be revoked upon his conviction of afelony

Youask whether the provisions of article 6252-13~. V.T.C.S., an act relating to occupational and professional licensing **of** certain persons with crimlw:l backgrounds, conflict with provisions of the Texas Engineering Pmctice Act, article 3271a, V.T.C.S.. regsrding the revocation of licenses issued bythe Texas State Board **of** Registration for Professional Engineers. Specifically, you ask whether revocation of the license of a mgistered professional engineer is mandatory upon his conviction of a f$elony.

In 1981 the le$,islature enacted article 6252-13~. V.T.C.S. That statute, after excluding from its application judges, lawyers, and peace officers (or !,c:rsons ticeking to become such; see also V.T.C.S. 6252-13d, 55). provides in section 4(a):

Aliceming authority 9 suspend or revoke an existing slid license, disqualify a person from receiving s license. or deny to a person the opportunity to be examined for a license because of **a person** **’ s**  conviction of a felouy or misdemeanor if the crime directly relates to the duties al;! responsibilities of the licensed occupatiot~ (Emphasis added).
Seetlon 4(e), howevtrr. provides:

Upon a Hcensee’s felony conviction, probation -revocation, felony revocation of parole, or revocation of mandatory supervision. his licecse shall be ::twoked. (Emphasis added).
It has been suggested that sections 4(a) and 4(e) of article 6252-13~ are in irrmrconcilable conflict because section 4(a) indicates that an existing valid license may be revoked for conviction of aMr.WoodrowW.Wire. P.E. - PdlSe2 (311-290)

felony If the felony di,rectly relates **to** the duties and responsibilities of the 1i~:ensed occupation, while **eection** 4(a) requires the mandatory revocation of a license if the licensee is convicted of 3 felony. Altematively~ it hae been suggested that both sections may stand if rection 4(e) la read to require the revocation of alicense for **a** ,felony & if **a** determioatlon has first been madepursuant to section 4(a) that the felony directly relates **to** the duties and responsibilit~.es of the licensed occupation. Wethink both provisions maystand, but for adifferent reaaon.
In **our** opinion, section 4(a) of the statute controls the discretion given licensing boards concerning the **effect** of major criminal law transgressions lyr a person before he receives a license and the effect of his minor transgressions, whenever they occur. Section t(e), on the other bend, controls the weight to be given by such boards to a felony conviction that occurs while the actor is a licensed representative of **the** profession or occupation. It takes away the board’s discretion and makes revocation of the license mandatory, In our opinion.
This difference In the operation **of** the two article 6252-13~ sections does not put themin conflict, although section 4(a) might be read by itself to “allow ” a permfssive revocation or suspension of an existing license for a felony conviction upon the “directly relates ” conditions. Rules of statutory construction followed in Texas eliminate any “conflict” wit’h the mandatory provision. **for** where a permissive provision of a statute is confronted by a mandatory provision, the permissive provision yfelds. avolding conflict. See Langdeau v. Burke InvestmentJ&, 351 S.W.Zd287 (Tex. Civ. App. - = Antonio 1961), aff ’d. 358S.N.2d 553 (Tex. 1962); Kerrvflle BusCo. v. Continental Bus-em. 208 S.W.Zd586 (Tex. Civ. App. - Austin 1947. writ ref

’d n.r.e.); Attorney General Opinion MU-457(1982).
It is argued, however, citing Schware v. Board of Bar Examiners. 353U.S. 232 (1957). thet sr1t.han interpretation of the statute would render it unconstitutional BUS a depriv&oo of due process or equal protection under the federal. Conatltution - an arbitrary deprivation of the “freedom to develop one’s talents.” See I Antieau. Modern Constitutional Law, 13:16 at 227 (1969). ?&ware involved an applicant for a state bar examination who was excluded therefrom primarily for past political activities. Realso had arecord of past criminal arrests, but noconvictions. TheUnited States Supreme Court held his exclusion onthat I~sis to be improper. In our opinion, the revocation of the license af a current licensee for conviction of a felony offense while currently licensed is easily distinguishable. SeeBarsky v. Board of Regerls. 347U.S. 442 (1953). - Afelony is a crime fc’r which a permissible punishment is death or confinement in the penitentiary. See Penal Code 51.07(a)(14); P.x parte Blume, 618 S.W.Zd373 ‘(Tex. Cri.App. 1981). Every felony G

n. 1289Mr.WoodrowW.hire, P:E. - PalSa3 (JM-290)

an “infsmous

” offense, the conviction of which. under common law principles, is an indication of bad character. Bennett v. State, 5 S.W. 527 (Tex. App. 1887); g$on v. McMullen, 527 P. Supp. 711 (N.D. Tex. 1981). The public has a right to expect. and the state haa a legitimate interest in requkcing, that persona licensed by the state (and thus given lta approval es warranting public confidence in their llcenaed transactions) will be, and will ramain. persons of good character.
It Is reasonable to require thet remote convictlons, even for serious offenses. not aui:omatically disqualify applicants for licenses, because applicants have not yet been looaed upon the public as licensed practitioners of their chosen calling, and evidence of their possible reformation or’current good character canbe considered for the purpose of refuting inferences from past felony convictions without risk to the public. But licensed persons of bad character pose a threat to members of the public dealing with them, and a current felony conviction of a licensee connotes **an** immediate character flaw, **not** some ronote transgression **from** which reliable inferences **of** present character maybe difficult to draw. v. Board of Regents, B. See Barskx **Cf.** Emoryv. Texas State Board of Medical Examiners, No. 84-1353 (5th C?r Dec. 17. 1984).
In our opinion, article 6252-13~. meets the “rational relation:3hio” as we interpret it. easily constitutional test and is at least facially constitutional. Sue -NewOrleans v. Dukes. 427 U.S. 297 (1976); United States v. Gibed, 640F.2d 621 (5th Cir. 1981); Dixon v. McMullen, eupra. Wetherefore turn to the relationship of article 6252-13~. V.T.C.S., and art1c:l.e 3271a. V.T.C.S., the Texas Engineering Practice Act.
The pertinent provisioa,s of the Texas Engineering Practice Act are found in sections 8and X2. Section 8(a) confers on the Board of Registered Professional Engineers the authority and power **to** “makeand enforce all rules and regulations necessary
. . . to establish standards of conduct and l t’h:lcs **of** engineers.

. . .” Section 22 in part provides:
Sec. 22. The Eoard shall revoke. suspend, or

refuse **to** renev a registration, shall reprimand a registrant. or may probate any suspension of any registrant whois jiound guilty of: (a) The pral:tice of any fraud or deceit lo obtaining aceri::lficate of registration; (b) Any gross negligence. incompetency, or misconduct in the practice of professional engineering asi a registered professional engineer; orMt. Woodrou **W.**Mize. P.E. - Pafle4 (JM-290)

**(c)** A violatj.cln **of this**  Act or a Board rule.
Conviction of A felony is not -- aeide **from** any board rule that might **touch** the subject - an expraes basis for licenaa 

### revocation under the Texae Rngineerlng Practice AI:!:. Certainly, that statute does not expreaaly mandate the ravocatlon of an englnacr’a registration upon his conviction of m felony.
These sections of the Texas Engineering Practice Act and article 

### 6252-13~sV.T.C.S., are 

### ~p;uci materiar and must be read together (and the law applied) AAthou@ rhep were parts of the same act. See 53 Tex. Jur. 2d Statutes $186. at 281. vhen so read, the same rnthat resolved the “conflict” between the two provisions of article 6252-13~ also resolves any apr’srent conflict here.
To the extent that article 6252-13~ mandates the revocation of a 

### licenseor registration for causes which article 3271a does not address or for vhlch article 3271s permits revocation (but does not require it), article 6252-13~ controls. Tothe extent that the Texas Engineering Practice Act maidlatea the revocation of an engineer’s registration for causes not a~ldressad by article 6252-13~ or cauaea for vhich article 6252-13~ permits revocation, but does not require it, article 3271s controls. Set Langdeau v. Burke Investment Co., supra; Kerrville Bus Co. v. _(:ontlnental Bus System, supra; Attorney General Opinion MW457(1982).
In our opinion, therefore!, it is mandatory that the Taxas State Board of Registration for Professional Engineers revoke the registration of aregistered professional engineer uponhis conviction of a felony vhile so licensed.

It is mandatory ,that the Texas **State** Board of Registration for Professional Engineers **revoke** the registration of azeglstered professional engineer upon his convictiom. of s felony while so licensed.
Very 

### trulyyo 

# J-b

.

- JIM HATTOX Attorney General of Texas
TOM GREFN First Assistant Attorney Genl,ral

p. 1291Mr.WoodrowW.Mire. P.E. - Page 5 (m-290)

DAVIDR. RICBARDS Executive Assistant Attorney General
RICRGILPIN Cbaiaman, Opinion Comittee Prepared by Bmce Youngblood Assistant Attorney Ganeral
APPROVED: OPINION

COEMITTEE
Rick Gilpin. Chairman Colln Carl Susan Garrison Tony Guillory Jennifer Riggs Bmce Youngblood