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 ofPublic 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 ofyou has requested our opinion as towhether 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 notwhether this information may be relied upon as the basis for a licensing decision. Procedural due process requires notice andhearing and confrontation of one’s accusers. See Willner v. Committee onCharacter and Fitness ofNew York, 373UT 96, LO5(1963); Greene v. McElroy, 360 U.S. 474 (1959). The only question is whether the Department ofPublic 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 ofPublic 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 soundphysical and emotional health andmaturity. II V. T. C.S. art. 695a-1, $3. Section 7ofthis licensing act

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The department may revoke a child care

administrator’s license ifit finds that the licensee: (1) has been convicted of a felony; (2) has been convicted ofamisdemeanor involving fraud or deceit. , . . Obviously, grounds for revocation ofa license constitute grounds for denial ofan initial license. We believe that this express authority to take action on the basis ofcertain convictions necessarily includes authority to investigate and obtain information concerning such convictions. It is a cardinal rule of statutory construction that the’statutory grant ofanexpress power carries with it by 

### necessary implication every other power necessary andproper 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, 138S.W. 575 (Tex. Sup. 1911);Terre11 v. Sparks, 135S.W. 519(Tex.Sup. 1911);Brown v. Clark, 116S.W. 360 (Tea Sup. 1909). Thus, it is our opinion that the Department ofPublic Welfare has authority to obtain information as towhether applicants for a child care administrator license, or license holders have been convicted ofa felony or certain misdemeanors.
The Supreme Court licenses persons topractice law in Texas. V. T. C.S. art. 306. The Board ofLaw Examiners is responsible for determining the eligibility ofcandidates for admission to the Bar and recommending qualified persons tothe Supreme Court. V. T. C.S. art. 305. The Supreme Court has by rule imposed a duty onthe Board, the State Bar and District Committees onAdmissions toinvestigate the qualifications ofapplicants 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.

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Criminal conduct ofan applicant for admission to the Bar is relevant to an investigation ofthe person’s qualifications. Article 311,V. T. C.S., absolutely bars from admission any person who has been convicted ofa felony. Upon conviction for a “felony involving moral turpitude or of any misdemeanor involving the theft, embezzlement, or fraudulent appropriation ofmoney or other property,” anattorney shall be suspended during pendency ofany appeal, and shall be disbarred upon final conviction. V.T. C.S. art. 320a-1, 56. Obviously, grounds for disbarment are grounds for denial ofinitial admission. See Hallinan v. Committee of Bar Examiners of the State Bar, 421P. 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 ofguilt ofthe violation ofa criminal statute may well present an insuperable obstacle to admission tothe Bar if such conduct evinces a lack ofthat

‘character and general fitness requisite for an attorney and counsellorat-law. “’ Application ofCassidy, 51N.Y. S. td 202, 206 (N. Y. App. Div. 1944), aff

’d, 73N.E. 2d41(N.Y. 1947). See 7 C.J.S. Attorney & Client 97, p. 713.

It is within the discretion ofthe Supeme Court to deny admission to the Bar onthe grounds that anapplicant made materially faalse statements in his application for admission. See Rules Governing State Bar of Texas, art. 1255 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 onmatters within its jurisdiction, such as whether there is probable violation ofthe law, orjust 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 byanother state agency in the course ofits investigation. Such information may suggest areas offurther investigation. See Application - of Levine, 397 P. 2d 205, 208 (Aria. 1964).

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The Department ofPublic 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 tohave been committed in the State, ofthe legal steps taken in connection therewith, “and such other information as may be useful in the study of crime and the administration ofjustice. ” V.T. C.S. art. 4413(14).

We believe that the general public policy ofthis State is that state agencies should cooperate in the interest ofefficiency and economy in the administration oftheir statutory duties. See V. T. C.S. arts. 441?(23), 4413(32); 695c, $4(S).

We need not reach the question ofwhether some ofthe information requested is excepted from general public disclosure under the Open Records Act, article 6252-17a, V. T. C.S. InAttorney General Opinion H-242 (1974). we said:

. . . Our office has previously recognized the need

to maintain an unrestricted flow ofinformation between state agencies. See Attorney General Opinion M-713 (1970). The Open Records~ Act does notundercut that policy. Information which is not required to be disclosed to the public under the Act can still be transferred between state agencies withoutviolating its confidentiality or destroying its confidential character.
Inaddition we note that the Supreme Court Rules Governing Admission to the bar expressly make information received in investigation of moral character andfitness confidential. Rule II D.

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We are aware ofthe growing concern about the misuse ofincomplete, 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, 507F. 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., 316F.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. 317N.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, 44Miss. L.J. 928 (1973); Comment, Retention and Dissemination ofArrest Records: Judicial Response, 38U.Chi. L. Rev. 850(1971); Hess &LePoole, Abuse of the Record of Arrest Not Leading to Conviction, 13Crime &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 ofthis information is transformed by virtue ofthe compilation of it in a centralized and vastly more accessible form. The Department of Public Welfare is authorized to make decisions onthe basis of convictions, andwe believe it is clear that it can obtain information concerning convictions from another state agency which compiles it. The request ofthe State Bar is broader, arrl asks for all criminal history record information which the Department of Public Safety holds or towhich 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 ofinsanity, incompetency to stand trial, pardons, probation before convictions, nobill, 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 offurther action or disposition.

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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, ifany, probative value in showing that hehas engaged in anymisconduct. An arrest shows nothing more thanthat 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 ofinformation, but we do notbelieve it can be read so as to preclude inquiry and investigation into potentially relevant areas, reflected in official records ofalleged **or** proven misconduct.
While the State Bar and Department ofPublic Welfare have authority to obtain this information they seek and nostate law restricts the Department ofPublic Safety from providing it, applicable federal statutes and regulations dolimit dissemination of criminal history information in some instances.
As aparticipant in the Federal Bureau ofInvestigation’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 ofthe United States pursuant to various federal statutes concerning the dissemination ofcriminal 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 ofPublic Safety is under a duty to limit dissemination of criminal history record information to:

(1) Criminal justice agencies, for purposes of the administration ofcriminal justice and criminal justice agency employment:

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(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. 28C.F. R. 520.21(b).
The regulations also provide in section 20.33as follows: (a) Criminal history record information contained in any Department ofJustice 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 theAttorney General of the United States.

. . . The Director ofthe Federal Bureau ofInvestigation has been given authority to approve exchanges ofidentification records with State and local governments for purposes ofempl.oyment and licensing. 28 C. F. R. 50.85(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 theState Bar of Texas is within several categories of those agencies towhom criminal history record information may be disseminated.

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In our opinion, the Department of Public Safety has authority to cooperate with the Department of Public Welfare and the State Bar of Texas byproviding those agencies with the information they have requested andwhich the Department ofPublic Safety holds.
To the extent that the federal regulations discussed are applicable to all or part ofthe information you hold or towhich you have access through contractual arrangements, it is our view that the Department of Public Welfare and the State Bar are within the categories ofagencies described in the federal regulations as those towhom 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 ofthe United States, through the Director of the Federal Bureau ofInvestigation, to approve the dissemination ofthat criminal history record information towhich the regulations are applicable to these agencies pursuant to 28 C.F. R. $20. 33;E 28C.F. R. 50.85(j). Upon receipt ofthis approval, which we believe should be forthcoming, the Department ofPublic Safety may provide the requested information to theState Bar and thenDepartment 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 themeaning of section 7ofarticle 695a-1, V. T. C. S. In our opinion, this refers to offenses which include fraud or deceit as an element ofthe offense.
Without attempting to be exhaustive, and byway ofexample only, depending upon the circumstances ofthe 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.

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SUMMARY

The Department ofPublic Safety may provide criminal history information to the State Bar ofTexas and theDepartment of Public Welfare toassist them in their licensing responsibilities. The approval of theAttorney 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

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