                       The Attorney               General of Texas
                                        April    19,   1978
JOHN L. HILL
Attorney General


                   Honorable Joe S. Gonzales, Chairman             Opinion No. H- 1156
                   State Board of Polygraph Examiners
                   Suite 502, Lamar Crest Office Tower             Re: Whether violation of the
                   7701 North Lamar                                Board of Polygraph Examiners’
                   Austin, Texas 78752                             regulations  is a penal offense
                                                                   under article 4413(29cc), section
                                                                   26, V.T.C.S.

                   Dear Mr. Gonzales:

                          You have requested our opinion as to whether the violation of
                   regulations promulgated by the Board of Polygraph Examiners is a penal
                   offense under section 26 of article 4413(29cc), V.T.C.S. That provision states:

                               [al ny person who violates any provision of this Act . . .
                               shall be guilty of a misdemeanor. . . .

                   Section 6(a) of article 4413(29cc) authorizes   the Board to

                               issue regulations consistent   with the provisions of this
                               Act for the administration     and enforcement     of this
                               Act. . . .

                   You ask whether a person who violates a Board regulation forbidding conduct
                   which is not prohibited by the statute itself may be prosecuted for violating a
                   provision of the Act.

                          In the present instance, there is little evidence that the Legislature
                   intended to confer upon the Board the power to define substantive crimes. If
                   it had attempted to do so, the attempt would have been invalid. It is well
                   established that article 1, section 28 of the Texas Constitution prohibits the
                   Legislature from delegating its authority to create a penal offense. Dockery
                   v. State, 247 S.W. 508, 509 (Tex. Crim. App. 1923); Ex parte Leslie, 223 S.W.
                   227, 229 (Tex. Crim. App. 1920).




                                                  p.   4686
    Honorable Joe S. Gonzales    -   Page2          (H-1156)



           In Attorney General Opinion O-972 (1939), this Office held that the mere
    violation of a rule of the State Parks Board could not serve as the predicate for an
    arrest, unless the act in question was also made a penal offense by statute.     See
    also Attorney General Opinions H-119(1973); 05047 (1943). In our opinion, this view
    isequally    applicable to regulations   of the Board of Polygraph Examiners.
    Accordingly, we believe that the violation of Board regulations which forbid
    conduct not prohibited by any statute is not a penal offense under section 26 of
    article 4413(29cc).

                                      SUMMARY

               The violation of regulations promulgated by the Board of
               Polygraph Examiners, which regulations prohibit conduct not
               proscribed by any statute, is not a penal offense under
               section 26 of article 4413(29cc), V.T.C.S.

                                                      v truza

                                                /
                                                    JOHN L. HILL
                                                    Attorney General of Texas
                                       P
    APPROVED:


Y32LJLLa
    DAVID M. KENDALL, First Assistant




    Opinion Committee

    jst




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