The Honorable John M. Lawrence,        III         Opinion No. H-    683
President, State Bar of Texas
P. 0. Box 12487, Capitol Station                   Re:   Whether Department of
Austin, Texas 78711                                      Public Safety may provide
                                                         criminal history informa-
The Honorable Wilson Speir, Director                     tion to State Bar and
Texas Department of Public Safety                        Department of Public
P. 0. Box 4087                                           Welfare for licensing
Austin, Texas 78173                                      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 admis-
sion 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 commit-
ment, and sound physical and emotional health and maturity. II V. T. C. S.
art. 695a-1, $3. Section 7 of this licensing act provider:




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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 convic-
tions. 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 Com-
mittees 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.




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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 appro-
priation 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 counsellor-
at-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).




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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 administra-
tion 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 with-
                out 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.




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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 tech-
nology 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  Uncon-
 victed, 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 Convic-
tion, 13 Crime & Delinquency 494 (1967).

      However,   the Department    of Public Welfare seeks only information
 concerning convictions.     At least as to convictions in Texas, this informa-
 tion 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.




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    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 Depart-
    ment 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 contrac-
    tual 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:




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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 dis-
       semination 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 dis-
seminated.




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.   .     .




    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 con-
    tractual 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 thenDepartment of Public Welfare under such terms
        and conditions as are reasonable and necessary to accomplish     such inter-
        agency 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.




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     -.   .   .
              .   .   ’



..




                  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




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