II’ 1 MAlTOX 

4 xney General 

3 mm. Cowl BuildIn 

3.0. Box 12545 

4ur1in. TX. 7S711.2S49 

5’ ‘4752501 

TI ,x 9lWS74.1367 

TemCODler 5121475O288 

7 Jackson. Suile 700 

D61Iad. TX. 7WO2JSO9 

2w7*2-S944 

4824 Alberta he.. Suite 150 

El Paso. TX. 799052792 

9ll53534s4 

1001 1exalJ. suite 700 

I uston. TX. 77002.3111 

7 u222-5SS9 

t I Broadway. Suite 312 

1 Dbock. TX. 79401-3479 

9081747.5229 

d 39 N. Tenth. Suite S 

McAllen. TX. 7SY31-1885 

512lSS2-4S47 

200 Mlkl Plua. suite 400 

Sm Antonlo. TX. 782062797 

: Y2254191 

An Equal OpportunityI 

firmath Action Employsr 

The Attorney General of Texas 

Decetdler 31, 1984 

Woodrow W. 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 

a registered engineer must be 

revoked upon his conviction 

of a felony 

You ask 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 by the 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): 

A liceming 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 a 
Mr. Woodrow W. Wire. P.E. - PdlSe 2 (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 a license for a ,felony & if a determioatlon has first 

been made pursuant to section 4(a) that the felony directly relates to 

the duties and responsibilit~.es of the licensed occupation. We think 

both provisions may stand, but for a different 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 them in 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.Zd 287 (Tex. Civ. App. - = 

Antonio 1961), aff’d. 358 S.N.2d 553 (Tex. 1962); Kerrvflle Bus Co. v. 

Continental Bus-em. 208 S.W.Zd 586 (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. 

353 U.S. 232 (1957). thet sr1t.h an 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. Re also had a record of past 

criminal arrests, but no convictions. The United States Supreme Court 

held his exclusion on that 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. 

See Barsky v. Board of Regerls. 347 U.S. 442 (1953). 

- 

A felony 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.Zd 373 ‘(Tex. Cri.App. 1981). Every felony G 

n. 1289 
Mr. Woodrow W. hire, P:E. - PalSa 3 (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 can be 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 may be difficult to draw. 

v. Board of Regents, B. 

See Barskx 

Cf. Emory v. 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 -New Orleans v. Dukes. 427 U.S. 297 

(1976); United States v. Gibed, 640 F.2d 621 (5th Cir. 1981); Dixon v. 

McMullen, eupra. We therefore 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 8 and X2. Section 8(a) confers on the Board of 

Registered Professional Engineers the authority and power to “make and 

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 who is jiound guilty of: 

(a) The pral:tice of any fraud or deceit lo 

obtaining a ceri::lficate of registration; 

(b) Any gross negligence. incompetency, or 

misconduct in the practice of professional 

engineering asi a registered professional 

engineer; or 
Mt. Woodrou W. Mize. P.E. - Pafle 4 (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~s V.T.C.S., are ~p;uci materiar and must be read together 

(and the law applied) AA thou@ 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 

license or 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. To the 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 a registered professional engineer upon his conviction 

of a felony vhile so licensed. 

It is mandatory ,that the Texas State Board of 

Registration for Professional Engineers revoke the 

registration of a zeglstered professional engineer 

upon his convictiom. of s felony while so licensed. 

Very truly yo J-b . 

- 

JIM HATTOX 

Attorney General of Texas 

TOM GREFN 

First Assistant Attorney Genl,ral 

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

DAVID R. RICBARDS 

Executive Assistant Attorney General 

RICR GILPIN 

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