                                          March 21,200O



Mr. William H. Kuntz, Jr.                             Opinion No. JC-0201
Executive Director
Texas Department of Licensing and Regulation          Re: Whether the Department of Licensing and
920 Colorado                                          Regulation may require applicants for a boxing
Austin, Texas 78701                                   license to submit to HIV testing as a condition
                                                      of licensure (RQ-0137-JC)

Dear Mr. Kuntz:

       You have requested our opinion as to whether the Department of Licensing and Regulation
may require applicants for a boxing license to submit to testing for the Human Immunodeficiency
Virus (HIV) as a condition of licensure. For the reasons indicated below, we conclude that it may
not.

         The Commissioner of the Department of Licensing and Regulation is authorized to “adopt
rules       establishing reasonable qualifications for an applicant seeking a license from the
department.” TEX. OCC. CODE ANN. 4 2052.052(b)(2) (Vernon 2000). A person may not act as a
professional boxer unless he or she holds a license under chapter 2052 of the Occupations Code. See
id. 5 2052.107(a). The Commissioner “may deny an application for a license if.          the applicant
does not meet the qualifications for the license.” Id. 5 2052.111. The Commissioner is considering
the adoption of a rule that would require contestants in a boxing event to submit to HIV testing prior
to licensure and that would disqualify the participant if he or she tests positive for HIV or HIV
antibodies.   See Letter from William H. Kuntz, Jr., Executive Director, Texas Department of
Licensing and Regulation, to Honorable John Comyn, Texas Attorney General (Nov. 1, 1999) (on
tile with Opinion Committee) [hereinafter “Request Letter”].

        Section 81.102 of the Health and Safety Code provides, in relevant part:

                    (a) Apersonmaynot     requireanotherperson  to undergoamedical
                procedure or test designed to determine or help determine if a person
                has AIDS or HIV infection, antibodies to HIV, or infection with any
                other probable causative agent of AIDS unless:

                        (1) the medical procedure or test is required under Subsection
                (d), under Section 81.050, or under Article 21.31, Code of Criminal
                Procedure;
Mr. William H. Kuntz, Jr. - Page 2                (JC-0201)




                      (2) the medical procedure or test is required under Section
              81.090,and no objection has been made under Section 81.090(1);

                      (3) the medical procedure or test is authorized under Article
              21.21-4, Insurance Code;

                      (4) a medical procedure is to be performed on the person that
              could expose health care personnel to AIDS or HIV infection,
              according to board guidelines defining the conditions that constitute
              possible exposure to AIDS or HIV infection, and there is suflicient
              time to receive the test result before the procedure is conducted; or

                     (5) the medicalprocedure       or test is necessary:

                           (A) as a bonafide occupational qualification and there
              is not a less discriminatory means of satisfying the occupational
              qualzjkation;

                           (B) to screen blood, blood products, body fluids, organs,
              or tissues to determine suitability for donation;

                            (C) in relation to a particular person under this chapter;

                          (D) to manage accidental exposure to blood or other body
              fluids, but only if the test is conducted under written infectious
              disease control protocols adopted by the health care agency or
              facility;

                         (E) to test residents and clients ofresidential facilities of
              the Texas Department of Mental Health and Mental Retardation, but
              only if:

                                (i) the test result would change the medical or social
              management      of the person tested or others who associated with that
              person; and

                             (ii) the test is conducted in accordance with guidelines
              adopted by the residential facility or the Texas Department of Mental
              Health and Mental Retardation and approved by the department; or

                         (F) to test residents and clients of residential facilities of
              the Texas Youth Commission, but only if:

                                (i) the test result would change the medical or social
              management      of the person tested or others who associate with that
              person; and
Mr. William H. Kuntz, Jr. - Page 3                 (JC-0201)




                               (ii) the test is conducted in accordance with guidelines
                adopted by the Texas Youth Commission.

                     (b) An employer who alleges that a test is necessary as a bona
               fide occupational qualification has the burden of proving that
                allegation.

TEX. HEALTH & SAFETY CODE ANN. 5 81.102(a), (b) (Vernon Supp. 2000) (emphasis added).

         The Department ofLicensing and Regulation (the “Department”) is a “person” for purposes
ofsection 81.102. In Texas Dep’t ofHealth v. Doe, 994 S.W.2d 890 (Tex. App.-Austin 1999, pet.
withdrawn ), the court held that the use of “person” in the Health and Safety Code embraces the
definition of “person” in the Code Construction Act, which includes, inter alia, any “government or
governmental subdivision or agency.” Id. at 893 (quoting section 3 11.005(2) of the Government
Code). Likewise, the use of the word “require” in section 81.102 does not depend upon whether an
applicant has a constitutionally protected interest in participating in a boxing contest. Rather,
“require” here means “to demand of (one) to do something.” XIII OXFORDENGLISHDICTIONARY
681 (2d ed. 1989). If the Department compels an applicant to submit to HIV testing as a condition
of licensure, it is perforce “requiring” that he or she do so.

         You specifically ask whether the requirement for HIV testing may bejustified as a “bona fide
occupational qualification.” You acknowledge that the Department is not an “employer” of boxers.
Request Letter, supra, at 3-4. In our opinion, since the Department is not an employer of boxers,
it may not avail itself ofthis exception. Section 8 1.102(b) indicates that “[a]n employer [who wishes
to invoke the exception] has the burden of proving that allegation.” TEX. HEALTH& SAFETYCODE
ANN. 5 8 1.102(b) (Vernon Supp. 2000) (emphasis added). We believe @is indicates the legislature’s
intent that an “employer” is the only party authorized to raise a “bona tide occupational
qualification” exception to the general prohibition of section 81.102. See id.

         Furthermore, it is our view that, had the legislature intended to permit the Department to
impose the requirement of HIV testing, it would have done so explicitly. Another provision of
section 8 1.102, for example, permits the Department of Mental Health and Mental Retardation and
the Texas Youth Commission “to test residents and clients” of their respective facilities, but only in
accordance with strict statutory guidelines. Id. 5 81,102(a)(5)(E), (F). Still other exceptions to the
prohibition of HIV testing apply to persons indicted for certain criminal offenses as authorized by
article 2 1.3 1 of the Code of Criminal Procedure, see id. § 8 l.l02(a)( 1); as part of seriologic testing
during pregnancy, as authorized by section 81.090 of the Health and Safety Code, see id. 5
81.102(a)(2); and to certain individuals seeking health insurance, as authorized by article 21.21-4
of the Insurance Code, see id. 8 81.102(a)(3). In addition, HIV test results are made confidential by
section 81.103 of the Health and Safety Code, and their release is permitted only to specifically
named persons. Disclosure of test results in violation of this section is a Class A misdemeanor. See
id. § 81.103(j) (Vernon 1992). Finally, one who discloses that information is liable to the victim for
civil damages and is subject to a civil penalty of up to $10,000. See id. 5 81.104 (Vernon Supp.
2000). We believe it is clear, from the express language of section 8 1.102, from the confidentiality
 accorded to HIV test results by section 8 1.103, and from the civil and criminal penalties attached to
 unauthorized release of HIV test results by sections 81.103 and 81.104, that the legislature has
manifested expressly its intent that compelled HIV testing be permitted in limited circumstances and
Mr. William H. Kuntz, Jr. - Page 4                (JC-0201)




subject to numerous safeguards designed to protect both the public and the individual person, The
legislature has not authorized by express provision the Department to require HIV testing of
applicants for boxing licenses. In such a cautionary atmosphere as that created by chapter 8 1 of the
Health and Safety Code, we do not believe it proper to infer its authority to do so. In our opinion,
absent clear legislative authorization, an agency may not be permitted, by rule, to compel an
individual to submit to testing for HIV or HIV antibodies.

         You also ask whether, in the event a boxer’s license is suspended in another state solely on
the basis of a positive HIV test, the Department may uphold that suspension. Section 6306 of the
Federal Professional Boxing Safety Act of 1996, requires “[elach boxing commission,” defined as
“an entity authorized under State law to regulate professional boxing matches,” 15 U.S.C. 5
6301(2)(A) (Supp. II 1996), to establish procedures, including “[plrocedures to ensure that, except
as provided in subsection (b) of this section, no boxer is permitted to box while under suspension
from any boxing commission due to, ” inter alia, “an injury, requirement for a medical procedure,
or physician denial of certification.” Id. 3 6306(a)(2)(B).      It is well established that, under the
Supremacy Clause of the United States Constitution,         “[sltates and their officers are bound by
obligations imposed by the Constitution and federal statutes that comport with the constitutional
design.” Alden v. Maine, 119 S. Ct. 2240,2266 (1999). If a positive HIV test results in denial of
physician certification, and that denial in turn forms the basis for a suspension in another state, the
Department is required to uphold that suspension.
Mr. William H. Kuntz, Jr. - Page 5               (JC-0201)




                                       SUMMARY

                       The Department of Licensing and Regulation may not by rule
               require that applicants for a professional boxing license submit to
               HIV testing as a condition of licensure. If, however, a boxer’s license
               is suspended in another state solely on the basis of a denial of
               physician certification resulting from a positive HIV test, the
               Department is required by federal law to uphold that suspension.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
