         THE       ATTORXET         GENERAL
                      OF   TEXAS




Mr. Vernon M. Arrell               Opinion No.JM-831
Commissioner
Texas Rehabilitation
   Commission                      Re: Whether section 111.058
118 E. Riverside Drive             of the Human Resources  Code
Austin, Texas 78704-9983           authorizes the Texas Rehab-
                                   ilitation   Commission    to
                                   require    applicants    for
                                   employment to provide copies
                                   of their records on criminal
                                   history,  traffic  offenses,
                                   military service and other
                                   matters relevant to screen-
                                   ing applicant (RQ-1272)

Dear Mr. Arrell:

     You have requested an opinion from this office.       Your
request letter states:

          Recently an applicant for employment with
       the Commission truthfully  reported, at the
       time she completed her written application
       for employment,   that she had not      been
       convicted of a felony offense. After her
       written application was filed, and before
       her employment with the Commission,      she
       entered a plea of guilty to two felony
       offenses.

          It is the view of the Commission       that
       this example demonstrates    the need for a
       strengthened application for employment    and
       hiring process.     Section  111.058 of the
       Human Resources   Code, V.T.C.A.,   authorizes
       the Commission to secure only         criminal
       history information on applicants or clients
       receiving    services    provided    by    the
       Commission.    No   other law     appears   to
       specifically   authorize the Commission     to




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Mr. Vernon M. Arrell - Page 2    6%831)




       secure such information on applicants        .for
       employment with the Commission.

       Therefore, your opinion is requested on:

          1. Whether Section 111.058 of the Human
       Resources Code, V.T.C.A.,   or any other law
       or regulation prohibits the Commission   from
       requiring an applicant   for employment  with
       the Commission [to produce] for inspection
       by the CommissionJs personnel office a copy
       of available records on the applicant   which
       might include a criminal history      record,
       traffic record, military   record, and other
       necessary records, as part of the applica-
       tion for employment screening process: and

          2. Whether,    after completion   of  the
       written application for employment in which
       no felony conviction is recorded, but the
       applicant has, in the interim, entered     a
       plea of guilty to a felony, the Commission
       may terminate the new hire even though all
       answers on the written application      were
       technically.truthful   when made.   In other
       words, does an applicant have a continuing
       duty to update his/her      application with
       correct information?

     Section 111.058 of the Human Resources Code provides:

          The commission      may     obtain   criminal
       history record information from the Board of
       Pardons and Paroles, Texas Department          of
       Corrections, and the Texas Department          of
       Public Safety if the records relate to an
       applicant for rehabilitation services or to
       a client of the agency.           The Board of
       Pardons and Paroles, Texas Department          of
       Corrections, and the Texas Department          of
       Public Safety upon request shall supply the
       commission     criminal       history      record
       information   applying     to   applicants    for
       rehabilitation services or clients of the
       commission.   The commission shall treat all
       criminal history     record information        as
       privileged and confidential and for commis-
       sion use only.




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Mr. Vernon M. Arrell - Page 3   (JM-831)




     In answer to your first question, statutes     limiting
the powers of governmental officers and agencies are to be
narrowly construed.  See. e.a    Anderson v. Houchins,    99
S.W.2d 1029 (Tex. Civ. App. -'Galveston 1936, no writ); 47
Tex . Jur. 2d Public Officers     5110.    Accordingly,   if
section 111.058 dealt with applicants for employment    with
the commission,  it might be construed     as the kind of
prohibition  you mentioned,    since it authorizes       the
commission  to obtain only certain      information.    This
section, however, applies not to applicants for employ-
ment, but to "applicant[s] for rehabilitation services or
to [clients] of the agency." It therefore has no bearing
on the issues raised in your request.

     We have found no statute that expressly         either
authorizes  or forbids the commission      to require job
applicants to submit the records    listed in your first
question or to impose upon applicants      the "continuing
duty" to which your second question     refers. Laws that
confer powers on public officers and agencies,     however,
implicitly permit that which is reasonably necessary     to
implement those powers. Se ,    9   Ft. Worth Cavalrv Club
v. Sheovard, 83 S.W.2d 660 TTez: ;435) ; Terre11 v. Soarks,
135 S.W. 519 (Tex. 1911). Section 111.018(a) of the Human
Resources Code states:

          In carrying out his or her duties under
       this chapter, the commissioner shall, with
       the approval of the board,, make regulations
       governing     personnel    standards,     the
       protection   of   records and    confidential
       information, the manner and form of filing
       applications,   eligibility,   investigation,
       and determination    for rehabilitation   and
       other services, procedures for hearings, and
       other regulations subject to this section as
       necessary to carry out the purposes of this
       chapter.

Section 111.020 provides:

          (a) The commissioner   shall, with    the
       approval of the board, establish appropriate
       subordinate administrative units;

          (b) The   commissioner     shall,    under
       personnel policies adopted by the board,
       appoint the personnel     necessary  for the
       efficient performance  of the functions of
       the agency.



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Mr. Vernon M. Arrell - Page 4   (JM-831)




Section 111.023 provides:

          The commissioner shall take other action
       as necessary or appropriate to carry out the
       purposes of this chapter.

     In terms of the public welfare, the commission   works
in a highly sensitive area.    In view of this, we believe
that the    authority to     "make regulations    governing
personnel standards," section 111.018(a), to "appoint the
personnel necessary for the efficient performance of the
functions of the agency," section 111.020, and to "take
other action as necessary or appropriate to carry out the
purposes of this chapter,"    section 111.023, necessarily
implies the authority to promulgate policies     reasonably
calculated to insure the commission's    ability to employ
only well-qualified personnel who pose no safety risk. We
further believe that this authority is sufficiently   broad
to enable the commission    to impose the continuing    duty
mentioned in your second question and to require the
submission of the records listed in the first question.
Requiring applicants  to submit this kind of background
information and to update their applications to reflect
felony guilty pleas is a measure    reasonably designed   to
secure suitable commission personnel.

     This measure, moreover,    would violate    no privacy
right of a job applicant.       Courts   have  recognized   a
constitutional right not to have to disclose        personal
information, a,    Whalen v. Roe, 429 U.S. 589, 599 (1977),
but this right is limited.     In Plante v. Gonzales,     575
F.2d 1119, 1128-36 (5th Cir. 1978), cert. denied, 439 U.S.
1129 (1979), for example, the court held that a state has
the power to compel the disclosure     of otherwise   private
information when     its interest    in that     information
outweighs the individual's interest in nondisclosure.      In
this instance,     we believe    that the     Rehabilitation
Commission   has a    clear interest     in requiring     job
applicants to submit the information mentioned       in your
questions, particularly in view of the sensitive nature of
the commission's work, regardless of whether that informa-
tion would otherwise be .private. This situation is akin
to that involved in Shoemaker v. Handel    619 F. Supp. 1089
(D.N.J. 1985), aff'd, 795 F:2d 1136 i3rd Cir.), cert.
denied, 107 S.Ct. 577 (1986), where the New Jersey Racing
Commission   required horse    racing jockeys to       submit
certification forms indicating all prescription and non-
prescription medications used. Noting that the commission
maintained the confidentiality of this information       with
respect to the public, the court held that the commission




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Mr. Vernon   M.   Arrell - Page 5    (.x4-831)




had a legitimate interest in obtaining this information in
view of its interest in strictly regulating the racing
industry   "to presence    and promote   its safety    and
integrity."   619 F.Supp. at 1106. Because this interest
outweighed any privacy interest of the jockeys      in not
having to disclose the information to the commission,  the
commission's rule requiring such disclosure violated    no
privacy right.

     In summary, we believe that the       Rehabilitation
Commission is authorized to require job applicants      to
submit the records  listed in your first question and to
impose on applicants the continuing duty to which your
second question refers. Requiring the disclosure of this
information to the commission would violate   no privacy
right of the applicants.

                           SUMMARY

          The Texas Rehabilitation Commission   may
       require job applicants to submit available
       records,   including     criminal   history,
       traffic, military, and similar records,   as
       part of the application process, and it may
       impose on applicants a duty to update their
       qt;cat;;is   to reflect guilty pleas entered
                     application    was  submitted.
       Requiring the disclosure of this information
       to the commission would violate no privacy
       right of the applicants.




                                       JIM     MATTOX
                                       Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General




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