n




                                       October     22,   1990




    Mr. Ron Lindsey                           Opinion      No.   JM-1237
    Commissioner
    Texas Department   of                     Re:   Scope of criminal     history
      Human Services                          investigations     of employees   in
    P. 0. Box 149030                          certain   facilities   licensed   by
    Austin, Texas    78714-9030               the Texas Department      of Health
                                              or   under   contract     with   the
                                              Texas Department     of Human Ser-
                                              vices    (RQ-2137)

    Dear   Mr.     Lindsey:

          You have          requested   our  opinion regarding     legislation
    enacted by the           71st Legislature   which    relates to   criminal
    history checks          of   employees  in   certain  facilities    serving
    the elderly or          disabled.

          Section         106.003(a)    of       the     Human     Resources   Code
    provides:

                      The Texas Department    of Human Services,      on
                  behalf of the Texas Department        of Health,     is
                  entitled    to    obtain    criminal       conviction
                  records   maintained     by   the   Department      of
                  Public   Safety    or   the   Federal    Bureau     of
                  Investigation     Identification       Division     to
                  investigate    an employee or a person       applying
                  for employment    at a facility.

    See    Hum.    Res.    Code   9 106.001   (defining      81facility1V)..

          This   provision     applies   to    employees    of     various
    facilities,    licensed by the Department    of Health,     including
    nursing    homes,    home  health    agencies,    adult    day     care.
    facilities,    and facilities   for the mentally   retarded.     L

          A  facility  is prohibited   from  offering    permanent
    employment  to any person, except those licensed under    other
    law, unless it first furnishes personal  identifying  informa-
    tion to the Department off Human Services.  Id. 0 106.00:(a),
    (b) .  When the    info?mation has     been  furnished,   the




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Department   of   Human Services      iS    required to    request     the
Department   of Public Safety to conduct a criminal           conviction
check    on  the   individual.      Id.     § 106.004(c).      Temporary
employment   is permitted,    so  long   as  the facility initiates       a
criminal    conviction    check    within       72  hours   after      the
individual   accepts the     temporary    employment.     With    certain
exceptions,1    a facility is prohibited        from hiring any person
if the records show that he or she has been convicted              of   an
offense listed in section 106.003(b).            See id. § 106.008(a).
Criminal conviction     checks are     somewhat limited by        section
106.002, which provides:

                (a) If   a   facility    is part   of   a    large
            complex of     buildings,  the   requirement     of   a
            criminal conviction     check under this      chapter
            applies    only    to  a person    who    will    work
            primarily   in the immediate boundaries       of    the
            facility.

                (b) This chapter applies to an employee or
            a person applying     for employment   at a home
            health agency only if the employee or       person
            is or will be     employed    in a position     the
            duties of which involve direct contact with a
            consumer of home health services.

However,   in addition to being recuired to run checks on most
aoolicants   for employment,     a facility is emnowered,     although
not required,   to run a check on "any person employed"         there,
including one licensed under other law and one exempt             under
section 106.002(b).      Seeid.      5 106.004(d).    A facility      is
also   required    under    section 106.008(a)     to    "immediately
terminate"   a person's      employment     if the  results    of   the
criminal conviction     check    reveal that the    person has     been
convicted   of an offense listed under section 106.003(b).

      Section      106.003(b)   limits   the types    of offense    which
automatically       bar   permanent    employment  and   which   require
termination.        The   applicable   offenses   are. limited   to   the
following:

               (1) ,a misdemeanor or felony classified  as
            an offense against the person or the family:




       1.    Id.   5 106.008(b),   (c).
                                                *




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Mr.   Ron   Lindsey        - Page    3     (JM-1237)




                (2) a misdemeanor               or felony     classified       as
            public indecency;

                (3) a     felony  violation    of  a    statute
            intended to control the possession       or distri-
            bution of a substance      included in the    Texas
            Controlled   Substances    Act (Article    4476-15,
            Vernon's   Texas Civil Statutes):

                (4) a felony             violation    of Section          31.03,
            Penal Code;

                (5) robbery   or                aggravated  robbery,           as
            described by Chapter                29, Penal Code; or

                  (6)     burglary,        as     described      by    section        .
            30.02,       Penal   Code.

      You indicate that some                of the listed offenses  are Class
C misdemeanors,   specifically               the following provisions  of the
Penal Code:

               5 21.06.                    Homosexual       Conduct.

               0 22.01(a)(2).              Threatening  another         with
                                           bodily harm.

               5 22.01(a)(3).              Causing physical   contact
                                           with another that may be
                                           reasonably  regarded   as
                                           offensive  or provocative.

               § 22.08.                    Aiding    Suicide.

               5 22.10.                    Leaving a child         in a
                                           vehicle.

                  § 43.22.                 Displaying   or distributing
                                           obscene material.

You express concern that the required dismissal     of permanent
employees  and the bar of permanent  employment  to   applicants
convicted  of a Class' C misdemeanor may conflict with section
12.03(c) of the Penal Code, which provides:

            Conviction of a Class C misdemeanor   does   not
            impose any legal disability  or disadvantage.

        Section         12.03(c)     is a long-standing             feature         of  the
penal    laws.           According    to the Practice            Commentary,         it  is




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Mr.   Ron   Lindsey   - Page   4   (JM-12,37)




designed to ensure     that @'conviction of    a Class C      (justice
court) misdemeanor     does not   deprive the     defendant    of    his
rights to    vote, hold   public office,     serve on    a jury,      or
other rights of citizenship."      Searcy & Patterson,       Practice
Commentaq     Tex.  Penal   Code Ann.     8 12.04    (Vernon    1974).
Even if w&     were to   construe    a bar of     employment      at   a
facility for the elderly or disabled as a "legal          disability
or disadvantage,** however,    it  is clear that the       employment
restrictions   of  chapter 106    of   the Human    Resources      Code
would control over section 12.04.

      In the first place, they     are the more specific    enact-
ments, since they deal only with restrictions     on   employment
at a certain    kind of   "facility."   Section  311.026 of    the
Government   Code provides:

                (a) If   a general provision  conflicts    with
            a special    or local provision,  the   provisions
            shall be     construed,   if possible,    so   that
            effect is    given to both.

                (b) If   the conflict    between the     general
            provision   and the special or local      provision
                 irreconcilable,    the   special    or     local
            t:ovision   prevails   as   an exception     to   the
            general provision,    unless the general      provi-
            sion is the later enactment      and the    manifest
            intent is that the general provision        prevail.

The employment  restrictions of the Human Resources  Code were
enacted in 1989.   Section 311.025(a) of the Government   Code
provides:

            Except as provided by Section 311.031(d),        if
            statutes enacted   at   the same   or   different
            sessions of the   legislature  are    irreconcil-
            able, the statute latest in date of enactment
            prevails.

Thus, it    is clear,    both from    the rule   that the   specific
prevails over the     general, and the     rule that "the     statute
latest in date of enactment      prevails, * that section 12.03(c)
of   the   Penal   Code   cannot   control   over    the  employment
restrictions    of chapter 106 of the Human Resources      Code.

      You also  express concern   about a potential     conflict
between the employment   bar of chapter 106 and section 23     of
article 42.12   of   the  Code of   Criminal Procedure.      That
statute provides:




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Mr.   Ron   Lindsey    - Page   5    (JM-1237)




                At    any    time,     after    the   defendant       has
            satisfactorily         completed     one-third      of    the
            original probationary          period or two years         of
            probation,       whichever      is the      lesser,       the
            period of probation         may be reduced or        termi-
            nated by      the court.        Upon the     satisfactory
            fulfillment      of the     conditions    of   probation,
            and the expiration          of the    period of      proba-
            tion, the court, by order duly entered,                shall
            amend    or      modify     the     original      sentence
            imposed, if       necessary,      to    conform    to     the
            probation      period      and   shall    discharge       the
            defendant.       In    case the     defendant    has    been
            convicted     or has entered a plea of guilty              or
            a plea of nolo contendere           to an offense other
            than    an    offense       under    Subdivision        (2) I
            Subsection      (a), Section 19.05, Penal Code, or
            an offense       under    Article     67011-1,     Revised
            Statutes,     and    the court      has discharged        the
            defendant     hereunder,     such court may set aside
            the    verdict      or   permit     the   defendant        to
            withdraw his        plea,    and    shall    dismiss      the
            accusation,         complaint,         information         or
            indictment     against such defendant,         who     shala
            thereafter     be released      from all venalties        and
            dis
            *r     '
            CLr' e      w *                         convicted          to
            Phich he has oleaded guiltv, except that:

                (1) proof of his   said conviction   or   plea
            of guilty shall    be made known   to the    court
            should the   defendant  again   be convicted     of
            any criminal  offense; and

                (2) if the defendantis      an applicant   for a
            license or is      a licensee   under Chapter    42,
            Human Resources     Code, the Texas Department    of
            Human Services may consider the fact that the
            defendant    previously    has received   probation
            under    this    section   'in issuing,   renewing,
            denying,   or    revoking   a license   under   that
            chapter.       (Emphasis added).

      The   "all  penalties    and   disabilities@'   provision     of
section 23 is apparently     equivalent   to the "legal disability
or disadvantage"     language of    section    12.03 of   the   Penal
Code.   More than 20 years ago,      when section 23 was part       of
section 7 of     article    42.12, this    office   considered    the
extent of a release      from "all penalties    and  disabilities."




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Mr. Ron   Lindsey      - Page   6      (JM-1237)




Attorney   General   Opinion     M-640              (1970)     said     that   an
individual  who qualified   under this              provision:

          may serve on   a jury or   vote at an   election
          provided  that   he    is otherwise   qualified.
          These are  civil    rights  which   the   statute
          seeks to restore to such defendant.

The   opinion   emphasized,         however,   that   since

          no   provision   is made   for  expunging     the
          "judgment   of conviction" from the record, the
          statute makes it clear that the     "conviction"
          itself has not been entirely erased.

The   opinion   then    addressed      the specific     question      asked:

          The right of such a defendant         to state to his
          prospective    employer that      he has never     been
          convicted   is not dealt      with in the     statute.
          Employers   are   entitled     to   know   the   truth
          about their prospective        employees,    and   this
          the statute has not taken away.          Such is    not
          a   O'penalty"    or   "disability"       which     was
          released by the      statute.     It is,   therefore,
          concluded   that such person cannot state in an
          application    of employment      that he had    never
          been "convicted     of a felony."

      In   our    opinion,     the       denial    of   employment      in     a
1'facility8q under chapter 106 of the Human Resources                 Code    is
not the    kind     of   penalty     or    disability      contemplated      by
section    23    of    article    42.12      of  the    Code    of    Criminal
Procedure.     In addition,       the same      considerations      that    are
applicable    to    your first      question are       also present      here.
The   employment       restrictions       of    chapter     106    are     more
specific,   and they were enacted later, than the                 restoration
of civil    rights      provision       of section     23.     We   conclude,
therefore,     that     section       23   cannot      prevail     over     the
employment     restrictions       of     chapter      106   of    the    Human
Resources   Code.

                                SUMMARY

              Neither section 12.03(c) of the Penal Code
          nor section     23   of article    42.12,    Code    of
          Criminal   Procedure,    acts   as a limitation      on
          chapter   106   of   the   Human   Resources     Code,
          which bars the employment,       in certain facili-
          ties serving     the   elderly    or  disabled,      of




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Mr.   Ron   Lindsey   - Page     7     (JM-1237)




            persons who  have been    convicted            of   certain
            felonies and misdemeanors     listed           in   chapter
            106.




                                                 JIM      MATTOX
                                                 Attorney  General   of Texas

MARYXELLER
First Assistant       Attorney       General

Lou MCCREARY
Executive  Assistant      Attorney       General

JUDGE ZOLLIE STHARIBY
Special Assistant  Attorney            General

RENEA HICXS
Special Assistant       Attorney       General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Rick Gilpin
Assistant Attorney General




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