The Honorable John M. Lawrence, III 

President, State Bar of Texas 

P. 0. Box 12487, Capitol Station 

Austin, Texas 78711 

The Honorable Wilson Speir, Director 

Texas Department of Public Safety 

P. 0. Box 4087 

Austin, Texas 78173 

Opinion No. H- 683 

Re: Whether Department of 

Public Safety may provide 

criminal history information to State Bar and 

Department of Public 

Welfare for licensing 

purposes. 

Dear Mr. Lawrence and Colonel Speir: 

Each of you has requested our opinion as to whether the Department of 

Public Safety has authority to provide criminal history record information 

to certain state agencies for licensing purposes. The State Bar of Texas 

seeks criminal history record information concerning applicants for admission to the Bar; the Department of Public Welfare seeks only information 

concerning felony and selected misdemeanor convictions of child care 

administrator applicants and licensees. 

The question here is not whether this information may be relied upon 

as the basis for a licensing decision. Procedural due process requires 

notice and hearing and confrontation of one’s accusers. See Willner v. 

Committee on Character and Fitness of New York, 373 UT 96, LO5 (1963); 

Greene v. McElroy, 360 U.S. 474 (1959). The only question is whether 

the Department of Public Safety may provide such information to the State 

Bar and the Department of Public Welfare to assist them in their investi? 

gative responsibilities, 

The Department of Public Welfare has a duty to license and regulate 

administrators of child-caring institutions. Eligibility for a license requires 

among other qualifications evidence of “good moral character, ethical commitment, and sound physical and emotional health and maturity. II V. T. C. S. 

art. 695a-1, $3. Section 7 of this licensing act provider: 

p. 2971 
The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 2 

The department may revoke a child care 

administrator’s license if it finds that the licensee: 

(1) has been convicted of a felony; 

(2) has been convicted of a misdemeanor 

involving fraud or deceit. , . . 

Obviously, grounds for revocation of a license constitute grounds 

for denial of an initial license. We believe that this express authority 

to take action on the basis of certain convictions necessarily includes 

authority to investigate and obtain information concerning such convictions. It is a cardinal rule of statutory construction that the’ statutory grant 

of an express power carries with it by necessary implication every other 

power necessary and proper to the execution of the power expressly 

granted. Anderson v. Brandon. 47 S. W. 2d 261, 262 (Tex. Sup. 1932); 

Imperial Irr. Co. v. Jayne, 138 S. W. 575 (Tex. Sup. 1911); Terre11 v. 

Sparks, 135 S. W. 519 (Tex.Sup. 1911); Brown v. Clark, 116 S. W. 360 

(Tea Sup. 1909). 

Thus, it is our opinion that the Department of Public Welfare has 

authority to obtain information as to whether applicants for a child care 

administrator license, or license holders have been convicted of a 

felony or certain misdemeanors. 

The Supreme Court licenses persons to practice law in Texas. V. T. C. S. 

art. 306. The Board of Law Examiners is responsible for determining the 

eligibility of candidates for admission to the Bar and recommending qualified 

persons to the Supreme Court. V. T. C. S. art. 305. The Supreme Court 

has by rule imposed a duty on the Board, the State Bar and District Committees on Admissions to investigate the qualifications of applicants for 

admission to the Bar. Rules Governing Admission to the Bar, Rules III 

E. H. J, R, L, M; VIIr; IX; XI1 (c),(g) (1974). 

Good moral character is an essential qualification for admission to the 

Bar. V. T. C. S. arts. 305. 306. 307A. 307B. 308. Rules Governing 

Admission to the Bar, Rules II, III, VIII, XII. 

p. 2972, 
The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 3 

Criminal conduct of an applicant for admission to the Bar is relevant 

to an investigation of the person’s qualifications. Article 311, V. T. C. S., 

absolutely bars from admission any person who has been convicted of a 

felony. Upon conviction for a “felony involving moral turpitude or of 

any misdemeanor involving the theft, embezzlement, or fraudulent appropriation of money or other property,” an attorney shall be suspended during 

pendency of any appeal, and shall be disbarred upon final conviction. 

V. T. C. S. art. 320a-1, 5 6. Obviously, grounds for disbarment are 

grounds for denial of initial admission. See Hallinan v. Committee of Bar 

Examiners of the State Bar, 421 P. Zd 76, 81 (Cal. 1966). 

The State Bar’s legitimate interest in criminal history information is 

not limited to convictions. “Conduct not descending to the level of guilt 

of the violation of a criminal statute may well present an insuperable 

obstacle to admission to the Bar if such conduct evinces a lack of that 

‘character and general fitness requisite for an attorney and counsellorat-law. “’ Application of Cassidy, 51 N. Y. S. td 202, 206 (N. Y. App. Div. 

1944), aff’d, 73 N. E. 2d 41 (N. Y. 1947). See 7 C. J.S. Attorney & Client 

97, p. 713. 

It is within the discretion of the Supeme Court to deny admission 

to the Bar on the grounds that an applicant made materially faalse statements 

in his application for admission. See Rules Governing State Bar of Texas, 

art. 12 5 5 DR l-101, DR l-102. Certainly the State Bar’s investigatory 

authority includes obtaining information which will verify statements 

made by an applicant concerning charges of criminal conduct made 

against him and their disposition. 

An administrative agency with investigative duties may take steps to 

inform itself on matters within its jurisdiction, such as whether there is 

probable violation of the law, or just to assure itself there is none. United 

States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950). We believe the 

State Bar may obtain information such as that contained in crininal history 

records held by another state agency in the course of its investigation. Such 

information may suggest areas of further investigation. See Application 

- 

of Levine, 397 P. 2d 205, 208 (Aria. 1964). 

p. 2973 
The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 4 

The Department of Public Safety has a duty to collect and file for 

record information concerning convicted felons, well-known and habitual 

criminals, the number and nature of offenses known to have been committed 

in the State, of the legal steps taken in connection therewith, “and such 

other information as may be useful in the study of crime and the administration of justice. ” V. T. C. S. art. 4413(14). 

We believe that the general public policy of this State is that state 

agencies should cooperate in the interest of efficiency and economy in the 

administration of their statutory duties. See V. T. C. S. arts. 441?(23), 

4413(32); 695c, $4(S). 

We need not reach the question of whether some of the information 

requested is excepted from general public disclosure under the Open Records 

Act, article 6252-17a, V. T. C. S. In Attorney General Opinion H-242 (1974). 

we said: 

. . . Our office has previously recognized the need 

to maintain an unrestricted flow of information 

between state agencies. See Attorney General 

Opinion M-713 (1970). The Open Records~ Act does 

not undercut that policy. Information which is not 

required to be disclosed to the public under the Act 

can still be transferred between state agencies without violating its confidentiality or destroying its 

confidential character. 

In addition we note that the Supreme Court Rules Governing Admission 

to the bar expressly make information received in investigation of moral 

character and fitness confidential. Rule II D. 

p. 2974 
The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 5 

We are aware of the growing concern about the misuse of incomplete, 

inaccurate, or irrelevant criminal history record information. The 

potential for harm to the individual concerned increases as modern technology makes such information more accessible through nationwide 

criminal history record information systems. See generally, Tarlton 

v. Saxbe, 507 F. 2d 1116 (D. C. Cir. 1974); Menard v. Saxbe, 498 F. 2d 

1017 (D. C. Cir. 1974); Menard v. Mitchell, 430 F. 2d 486 (D. C. Cir. 

1970); Gregory v. Litton Systems, Inc., 316 F.Supp. 401 (C. D. Cal. 

1970), modified, 472 F. 2d 631 (9th Cir. 1972); Davidson v. Dill, 503 

P. 2d 157 (Colo. 1972); Henry v. Looney. 317 N. Y. S. 2d 848 (Sup. Ct. 1971); 

Monroe v. Tielsch, 525 P. 2d 250 (Wash. 1974); Eddy v. Moore, 487 P. 2d 

211 (Wash. App. 1971); Comment, Branded: Arrest Records of the Unconvicted, 44 Miss. L. J. 928 (1973); Comment, Retention and Dissemination 

of Arrest Records: Judicial Response, 38 U. Chi. L. Rev. 850 (1971); 

Hess & LePoole, Abuse of the Record of Arrest Not Leading to Conviction, 13 Crime & Delinquency 494 (1967). 

However, the Department of Public Welfare seeks only information 

concerning convictions. At least as to convictions in Texas, this information is public when held by the court clerk or other person responsible 

for filing it. See Code Crim.Proc. arts. 1.24, 2.21, 42.01, 42.02, 45.13, 

.45.49; V.T. Cx arts. 1200, 1899, 1945, 2383, 3930. It is not necessary 

here to decide whether the public nature of this information is transformed 

by virtue of the compilation of it in a centralized and vastly more accessible 

form. The Department of Public Welfare is authorized to make decisions 

on the basis of convictions, and we believe it is clear that it can obtain 

information concerning convictions from another state agency which compiles 

it. 

The request of the State Bar is broader, arrl asks for all criminal 

history record information which the Department of Public Safety holds 

or to which it has access. This information may include notations of 

convictions, indictments, informations, or other formal charges of 

criminal conduct, dispositions arising from such charges such as acquittal 

by reason of insanity, incompetency to stand trial, pardons, probation before 

convictions, no bill, nolle prosequi, charge dismissed, and a Mriety of other 

possible conclusions to criminal proceedings. It may also include information 

as to arrest without any indication of further action or disposition. 

p. 2975 
. . 

The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 6 

The United States Supreme Court, in Schware v. Board of Bar 

Examiners, 353 U.S. 232, 241 (1957) has said: 

The mere fact that a man has been arrested has 

very little, if any, probative value in showing that 

he has engaged in any misconduct. An arrest shows 

nothing more than that someone probably suspected 

the person apprehended of an offense. When formal 

charges are not filed against the arrested person and 

he is released without trial, whatever probative force 

the arrest may have had is normally dissipated. 

This language is pertinent to the Bar’s evaluation of information, but 

we do not believe it can be read so as to preclude inquiry and investigation 

into potentially relevant areas, reflected in official records of alleged or 

proven misconduct. 

While the State Bar and Department of Public Welfare have authority 

to obtain this information they seek and no state law restricts the Department of Public Safety from providing it, applicable federal statutes and 

regulations do limit dissemination of criminal history information in some 

instances. 

As a participant in the Federal Bureau of Investigation’s National Crime 

Information Center and as a recipient of Law Enforcement Assistance 

Administration funds, the Department of Public Safety has certain contractual obligations and is subject to recent regulations issued by the Attorney 

General of the United States pursuant to various federal statutes concerning 

the dissemination of criminal history record information. 28 C. F. R. § 20.1 

et seq., 40 Fed. Reg. 22114 (1975) (effective June 19, 1975). 

Under these regulations, the Department of Public Safety is under a 

duty to limit dissemination of criminal history record information to: 

(1) Criminal justice agencies, for purposes of 

the administration of criminal justice and criminal 

justice agency employment: 

p. 2976 
The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 7 

(2) Such other individuals and agencies which 

require criminal history record information to 

implement a statute or executive order that 

expressly refers to criminal conduct and contains 

requirements and/or exclusions expressly based 

upon such conduct; 

. . . . 

(6) Individuals and agencies where authorized by 

court order or court rule. 

28 C. F. R. 5 20.21(b). 

The regulations also provide in section 20. 33 as follows: 

(a) Criminal history record information contained 

in any Department of Justice criminal history 

record information system will be made available: 

. . . . 

(3) Pursuant to Public Law 92-544 (86 Stat. 115) 

for use in connection with licensing or local/state 

employment or for other uses only if such dissemination is authorized by Federal or state statutes 

and approved by the Attorney General of the United 

States. . . . 

The Director of the Federal Bureau of Investigation has been given 

authority to approve exchanges of identification records with State and local 

governments for purposes of empl.oyment and licensing. 28 C. F. R. 5 0.85(j) 

(1974). 

It is our view that the Department of Public Welfare’s child care 

administrator licensing statute brings it precisely within the terms of 

28 C. F. R. $2-.21(b)(Z), in that the statute “expressly refers to criminal 

conduct and contains express requirements and/or exclusions expressly 

based upon such conduct. ‘I V. T. C.S. art. 695a-1, § 7. 

It is apparent that the State Bar of Texas is within several categories of 

those agencies to whom criminal history record information may be disseminated. 

p. 2977 
. . . 

The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 8 

In our opinion, the Department of Public Safety has authority to 

cooperate with the Department of Public Welfare and the State Bar of 

Texas by providing those agencies with the information they have 

requested and which the Department of Public Safety holds. 

To the extent that the federal regulations discussed are applicable to 

all or part of the information you hold or to which you have access through 

contractual arrangements, it is our view that the Department of Public 

Welfare and the State Bar are within the categories of agencies described 

in the federal regulations as those to whom dissemination is permissible. 

In order to avoid questions as to applicability or possible breach of contractual provisions, the Department of Public Safety should request the 

Attorney General of the United States, through the Director of the Federal 

Bureau of Investigation, to approve the dissemination of that criminal 

history record information to which the regulations are applicable to 

these agencies pursuant to 28 C. F. R. $20. 33; E 28 C. F. R. 5 0.85(j). 

Upon receipt of this approval, which we believe should be forthcoming, 

the Department of Public Safety may provide the requested information 

to the State Bar and then Department of Public Welfare under such terms 

and conditions as are reasonable and necessary to accomplish such interagency cooperation. See V. T.C.S. art. 4413(32). - 

Colonel Speir also asks in reference to the Department of Public 

Welfare’s request, what misdemeanors involve fraud and deceit within 

the meaning of section 7 of article 695a-1, V. T. C. S. In our opinion, 

this refers to offenses which include fraud or deceit as an element of the 

offense. 

Without attempting to be exhaustive, and by way of example only, 

depending upon the circumstances of the particular offense, misdemeanor 

offenses such as those defined in Penal Code chapters 31 (theft), 32 (fraud), 

37 (perjury and other falsification) may involve fraud and deceit. 

p. 2978 
-. . . 

. . ’ 

. . 

The Honorable John M. Lawrence, III (H-683) 

The Honorable Wilson Speir 

Page 9 

SUMMARY 

The Department of Public Safety may provide 

criminal history information to the State Bar of Texas 

and the Department of Public Welfare to assist them 

in their licensing responsibilities. The approval of 

the Attorney General of the United States should be 

sought to disseminate criminal history record 

information from the National Crime Information 

Center System to these agencies. 

Very truly yours, 

/\ 

// JOHN L. HILL 

u Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2979