                                         GREG       A B B O T T




                                              April 7,2008



Mr. Robert Scott                                    Opinion No. GA-06 14
Commissioner of Education
Texas Education Agency                              Re: Whether a proposed rule of the State Board for
1701 North Congress Avenue                          Educator Certification that relates to certification
Austin, Texas 7870 1- 1494                          eligibility of persons with criminal convictions is
                                                    "preempted" by section 21.060 of the Education
                                                    Code (RQ-0634-GA)

Dear Commissioner Scott:

        You explain that the rule promulgated by the State Board for Educator Certification (the
"SBEC") at title19, section 249.16 of the Texas Administrative Code, pertains to the "eligibility of
persons with criminal convictions" for educator certification.' You further explain that certain
stakeholders assert that proposed amendments to the rule are precluded by a new statutory
provision-section 21.060, Education Code--enacted by the Eightieth Legislature. Request Letter,
supra note 1, at 1. Accordingly, you ask several questions regarding the proper construction of
section 21.060. Id. at 2.

I.      Statutory and Regulatory Background

       We begin with an examination of the statutory and regulatory context in which your
questions are posed.

        A.    State Board for Educator Certification

        Chapter 21 of the Education Code creates the SBEC, which is responsible for regulating and
overseeing "all aspects of the certification, continuing education, and standards of conduct of public
school educators." TEX.EDUC.CODEANN. 5 21.03 1(a) (Vernon 2006). The SBEC implements its
responsibilities, in part, through its rulemaking authority. Id. §§ 2 1.031(b), .041. State law provides
that the SBEC shall propose rules that, among other things, regulate educators; specify requirements



         'See Letter from Robert Scott, Commissioner of Education, Texas Education Agency, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Oct. 8, 2007) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us)[hereinafter Request Letter].
Mr. Robert Scott - Page 2                           (GA-0614)



for the issuance and renewal of educator certificates; and provide for disciplinary proceedings,
                                                                 Id. $ 2 1.041(b)(l), (4), (7).
including the suspension or revocation of an educator ~ertificate.~

        B.    Chapter 53, Occupations Code

       As a licensing authority, the SBEC is subject to chapter 53 of the Occupations Code, which
governs occupational licensing3in general. Section 53.021 provides:

                 (a) A licensing authority may suspend or revoke a license, disqualify
                 a person from receiving a license, or deny to a person the opportunity
                 to take a licensing examination on the grounds that the person has
                 been convicted of a felony or misdemeanor that directly relates to the
                 duties and responsibilities of the licensed occupation.

                 (b) A license holder's license shall be revoked on the license
                 holder's imprisonment following a felony conviction, felony
                 community supervision revocation, revocation of parole, or
                 revocation of mandatory supervision.

TEX. OCC.CODEANN. 5 53.021 (Vernon 2004); see also id. $5 53.022-.023 (listing factors a
licensing authority must consider in determining whether a criminal conviction directly relates to a
particular occupation). For purposes of chapter 53, a license "includes the whole or a part of a state
agency permit, certificate, approval, registration, or similar form of permission required by law."
TEX.GOV'TCODEANN. $ 2001.003(2) (Vernon 2000 & Supp. 2007); see also TEX.OCC.CODE
ANN.$ 53.001 (Vernon 2004) (incorporating definitions from Government Code chapter 2001).

        Pursuant to provisions now found in chapter 53 of the Occupations Code, as well as certain
provisions of the Education Code, the SBEC promulgated the rule at title 19, section 249.16 of the
Texas Administrative Code. See 19 TEX.A D m . CODE5 249.16 (2007) (State Board for Educator
Certification, Eligibility of Persons with Criminal Convictions for a Certificate under Articles 6252-
13c and 6252-13d, Revised Civil Statutes). The following excerpt sets out relevant portions of the
current rule with SBEC's proposed amendments indicated:

                                                         . Chapter 53 [Artides
                 (a) Pursuant to the Texas Occupations .Code,
                     G252-:3~      G252-:3J, -J      C I V ~Sbk&es
                                                             :     1, and the Texas
                     Education Code (TEC), Chapter 22, Subchapter C, [€h@e&&
                    1-                 the State Board for Educator Certification


        2SBEC's proposed rules must be approved by the State Board of Education. TEX.EDUC.CODEANN.4 21.042
(Vernon 2006).

         '"The definitions provided by chapter 2001 ofthe Government Code apply to" chapter 53, Occupations Code.
TEX.OCC.CODEANN. 4 53.00 1 (Vernon 2004). Section 200 1.003 ofthe Government Code defines the term "licensing"
to include "a state agency process relating to the granting, denial, renewal, revocation, suspension, annulment,
withdrawal, or amendment of a license." TEX.GOV'TCODEANN. 4 2001.003(3) (Vernon 2000 & Supp. 2007).
Mr. Robert Scott - Page 3                     (GA-06 14)



                 [ M I may suspend or revoke an existing valid certificate, deny
                 an applicant a certificate, or bar a person from being assessed or
                 examined for a certificate because of a person's conviction of a
                 felony or misdemeanor if the crime directly relates to the duties
                 and responsibilities of the education profession.

             (b) Subsection (a) of this section applies to a crime thatfj indicates
                 a threat to the health, safety, or welfare of a student or minor,
                 parent of a student, fellow employee, or professional colleague;
                 interferes with the orderly, efficient, or safe operation of a school
                 district, campus, or activity; or indicates impaired ability or
                 misrepresentation of qualifications to perform the functions of
                 an educator. Crimes considered to relate directly to the duties
                 and responsibilities of the education profession include, but are
                 not limited to:

                  (1) crimes involving
                                   I - [
                                                 .   .          moral turpitude;
                                                .    .
                                    I - [
                  (2) crimes involving                        any form of sexual or
                      physical abuse or neplect of a student or minor [     m ]
                      or other illegal conduct with a student or minor [ M I ;

                  (3) crimes involving;any    [v
                                                      ] possession, transfer, sale,
                       distribution, or conspiracy to possess, transfer, sell, or
                       distribute any controlled substance defined in the Texas
                       Health and Safety Code, Chapter 481      [w
                      1-      ;

                                   I -
                  (4) crimes involving    [                      school property or
                      funds;

                  (5) crimes involvingI - [                        any attempt by
                      fraudulent or unauthorized means to obtain or alter any
                      certificate or permit that would entitle any person to hold or
                      obtain a position as an educator;

                                    I-[
                  (6) crimes occurring                     wholly or in part on
                      school property or at a school-sponsored activity; or

                  (7) felonies involving: driving; while intoxicated (DWI) or
                      driving under the influence (DUI) of drugs or alcohol.
Mr. Robert Scott - Page 4                     (GA-06 14)




Request Letter, supra note 1, Appendix B.

       C.   Section 21.060, Education Code

       In addition to chapter 53 of the Occupations Code, the SBEC is subject to section 21.060,
Education Code, newly enacted by the Eightieth Legislature. Act of May 27,2007, 80th Leg., R.S.,
ch. 1372, 5 5, 2007 Tex. Gen. Laws 4673, 4674 (codified at TEX.EDUC.CODEANN. 5 21.060).
Section 2 1.060 provides:

              The [SBEC] may suspend or revoke the certificate or permit held by
              a person under this subchapter, impose other sanctions against the
              person, or refuse to issue a certificate or permit to a person under this
              subchapter if the person has been convicted of a felony or
              misdemeanor offense relating to the duties and responsibilities of the
              education profession, including:

                   (I) an offense involving moral turpitude;

                  (2) an offense involving a form of sexual or physical abuse of
              a minor or student or other illegal conduct in which the victim is a
              minor or student;

                   (3) a felony offense involving the possession, transfer, sale, or
              distribution of or conspiracy to possess, transfer, sell, or distribute a
              controlled substance, as defined by Chapter 48 1, Health and Safety
              Code, or by 2 1 U.S.C. Section 80 1 et seq.;

                   (4) an offense involving the illegal transfer, appropriation, or
              use of school district funds or other district property; or

                   (5) an offense involving an attempt by fraudulent or
              unauthorized means to obtain or alter a professional certificate or
              license issued under this subchapter.

TEX.EDUC.CODEANN.5 21.060 (Vernon Supp. 2007) (footnote omitted).

11.    Analysis

        With this background we consider your questions. You generally seek to understand
"whether the proposed rule is a legitimate exercise of agency rule making authority" by asking
specific questions regarding the proper construction of section 21.060:
Mr. Robert Scott - Page 5                              (GA-0614)



                 whether TEC 5 21.060 expressly preempts SBEC from applying or
                 amending Rule tj 249.16 to define the offenses it deems to be directly
                 related to the education profession pursuant to Occupations Code
                 5 53.025, in such a way that adds other offenses to those enumerated
                 in 5 21.060. In that connection, we request your opinion whether, in
                 referring to SBEC's authority under this statute, the use of the word
                 "may" rather than "shall" makes the application of this statute by
                 SBEC discretionary, and whether the use of the word "including7'
                 creates any presumption that offenses not listed must not be deemed
                 by SBEC rule to be offenses relating to the duties and responsibilities
                 of the education profession.

Request Letter, supra note 1, at 2.4

        An agency such as SBEC may adopt rules that are authorized by and consistent with its
statutory authority. R.R. Comm 'n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992).
Accordingly, a licensing agency "cannot enforce standards [on licensees] that are more burdensome
than those of the controlling statute, even though they may be reasonable and be administered
reasonably." Tex. Att'y Gen. Op. No. GA-0409 (2006) at 3 (citing Bloom v. Tex. State Bd. of
Exam 'rs ofPsychologists, 492 S.W.2d 460,462 (Tex. 1973)). In order to understand the bounds of
SBEC's authority as to the proposed rule, you ask that we construe one of the controlling statutes.

        The primary objective in construing a statute is to determine and give effect to the legislative
intent. Mclntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). We look first to the plain and
common meaning of the statute's words and if the statutory language is unambiguous, we interpret
the statute according to its plain meaning. Id.

        Section 2 1.060 of the Education Code sets out a list of criminal offenses, the conviction for
which may result in the suspension or revocation of an educator's permit or certification, the
imposition of other sanctions, or the refusal to issue a certificate or permit to a person. TEX.EDUC.
CODEANN.5 2 1.060 (Vernon Supp. 2007). The list of offenses is preceded by the word "including."
Id. The Legislature has expressly provided us with its intent regarding use of the word "including."
Leach v. State, 170 S.W.3d 669, 672-73 (Tex. App.-Fort Worth 2005, pet. ref d). The Code
Construction Act instructs that the term "including" is one "of enlargement and not of limitation
 . . . and use of the term[] does not create a presumption that components not expressed are
excluded," unless the statute or context in which the term is used requires a different definition.
TEX.GOV'TCODEANN.tj 3 11.005(13) (Vernon 2005). Nothing in section 2 1.060, Education Code,
indicates that a different definition than that in the Code Construction Act is intended. To conclude


          41n your request, you describe section "21.060 as establishing an independent basis for sanctions against a
certified educator." Request Letter, supra note 1, at 1 (emphasis added). In the proposed rule, the grounds for revoking
or suspending a certificate under chapter 53 are described as being "cumulative" of the grounds and remedies provided
by section 2 1.060. Request Letter, supra note 1, Appendix B. We do not understand you to ask about, and this opinion
is not intended to address, those characterizations of the statutes.
Mr. Robert Scott - Page 6                            (GA-0614)



otherwise would improperly limit and confine section 21.060 in a way that is not supported by the
words of the statute. Thus, section 21.060's list of criminal offenses that relate to the duties and
responsibilities of the education profession is not exclusive.

        You ask that we consider whether the legislative history of section 21.060, Education Code,
affects our construction of section 21.060. Request Letter, supra note 1, at 2. You explain that two
classes of offenses included in the proposed rule--one relating to offenses occurring on school
property or at school-sponsored activities and one relating to DWI and DUI offenses-were
originally included but subsequently removed from section 21.060 during consideration by the
Senate Education Committee. Id. Briefing received in our office contends that with respect to those
classes of offenses "the legislative history [of section 21.0601 establishes the Legislature's
affirmative decision to remove and preempt SBEC's authority to include" those two classes of
offenses "in any rule promulgated restricting licensure." Letter from Rachael M. Maresh, Staff
Attorney, Association of Texas Professional Educators, to Honorable Greg Abbott, Attorney General
of Texas, at 4 (Nov. 15,2007) (on file with the Opinion Committee).'

        The Code Construction Act provides that "[iln construing a statute, whether or not the statute
is considered ambiguous on its face, a court may consider among other matters" the legislative
history. TEX.GOV'TCODEANN. § 3 11.023(3) (Vernon 2005). The Texas Supreme Court has
directed, however, that "if a statute is unambiguous, rules of construction or other extrinsic aids
cannot be used to create ambiguity." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864,865-66 (Tex. 1999). Thus, a court will not give effect to legislative history where it contradicts
the unambiguous language of a statute. See, e.g., Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge)
L.L. C., 171 S.W.3d 905, 915 (Tex. App.-Houston [14th Dist.] 2005, no pet.); Moore v. Trevifio,
94 S.W.3d 723,726 (Tex. App.-San Antonio 2002, pet. denied); Robinson v. Budget Rent-A-Car
Sys., Inc., 51 S.W.3d 425, 430 (Tex. App.-Houston [lst Dist.] 2001, pet. denied). Here the
unambiguous language of section 21.060 indicates the list of offenses in that section is nonexclusive.
Applying the standard set out by Texas courts as to the proper use of legislative history, we do not
believe a court would disregard the unambiguous language of section 21.060 in light of the
legislative history. Our construction of section 21.060-that the list of offenses is nonexclusive in
nature-is, therefore, not altered by the legislative history.

        In briefing received by our office it is suggested that section 21.060, Education Code, and
section 53.021, Occupations Code, are in pari materia and that under this rule of construction "the
more specific TEC 8 21.060 must contr01."~ This aspect of the rule of in pari materia applies,



          'Similar arguments were made by other briefers. See Letter from Julie D. Leahy, Staff Attorney, Texas
Classroom Teachers Association, to Honorable Greg Abbott, Attorney General of Texas, at 4 (Nov. 15,2007) (on file
with the Opinion Committee) [hereinafter Leahy Brief]; Letter from Joey Moore, Manager ofLegal Services, Texas State
Teachers Association/National Education Association, to Honorable Greg Abbott, Attorney General of Texas, at 1-2
(Dec. 3,2007) (on file with the Opinion Committee); Letter from Greg Johnson, Deats, Durst, Owen and Levy, P.L.L.C.,
on behalf of Texas Federation of Teachers, to Honorable Greg Abbott, Attorney General of Texas, at 1-2 (Dec. 4,2007)
(on file with the Opinion Committee).

        6Leahy Brief, supra note 5, at 5.
Mr. Robert Scott - Page 7                       (GA-0614)



however, only when the statutes at issue are in conflict. See Lexington Ins. Co. v. Strayhorn, 209
S.W.3d 83, 86-87 (Tex. 2006). Because we construe the list of offenses in section 21.060 as
nonexclusive, we believe the statutes can be reconciled such that the SBEC's proposed rule may,
pursuant to chapter 53, include offenses beyond those in section 21.060. Under the inpari materia
rule, effect is to be given to all the provisions of each statute if they can stand together and have
concurrent efficacy. Burke v. State, 28 S.W.3d 545, 546 (Tex. Crim. App. 2000); Tex. Att'y Gen.
Op. No. GA-0369 (2005) at 4. We believe that is achieved with our construction of the statute.

         We conclude then that use of the word "including" in section 21.060 indicates that the list
of offenses is nonexclusive. As a result, we do not construe section 21.060 to preclude the SBEC
from applying or amending its rule at section 249.16 to include offenses it deems to be directly
related to the education profession pursuant to Occupations Code section 53.025 and that add to the
list of offenses enumerated in section 21.060.

        We next consider your question about the meaning of the word "may" as used in section
21.060. Request Letter, supra note 1, at 2. Again, the Legislature has expressly provided us with
its intent regarding use of the word "may." The Code Construction Act provides that unless the
context in which the word "may" appears "necessarily requires a different construction or unless a
different construction is expressly provided by statute" it is construed to "create[] discretionary
authority or grant[] permission or a power." TEX.GOV'TCODEANN.$ 3 11.016(1) (Vernon 2005).
We construe the word "may" under section 21.060 to create discretionary authority to suspend or
revoke a certificate or permit, impose other sanctions against a person, or refuse to issue a certificate
or permit because nothing in the statute indicates otherwise. Had the Legislature intended to impose
a duty on the SBEC to take action against a person upon conviction of the offenses listed in section
21.060, we believe it would have used the word "shall" as it did in other provisions of chapter 21.
See, e.g., TEX. EDUC.CODEANN. $ 21.058(b) (Vernon 2006) (providing that notwithstanding
SBEC's general authority to propose rules for the suspension and revocation of educator
certifications, the SBEC "shall" revoke the certificate of persons convicted of certain listed felony
offenses,); see also TEX.GOV'TCODEANN.$ 3 11.016(2) (Vernon 2005) (providing that unless the
context dictates otherwise, the word "shall" imposes a duty). In reliance on the Legislature's
expressed intent regarding the meaning of the word "may," we conclude that SBEC's authority to
take action against a person for an offense listed in section 21.060 is discretionary.
Mr. Robert Scott - Page 8                   (GA-06 14)



                                     S U M M A R Y

                      The list of criminal offenses that relate to the duties and
              responsibilities of the education profession in section 21.060,
              Education Code, is nonexclusive. As a result, we do not construe
              section 21.060 to preclude the State Board for Educator Certification
              (SBEC) from applying or amending its rules to include offenses it
              deems to be directly related to the education profession pursuant to
              section 53.025, Occupations Code, and that adds to the list of
              offenses enumerated in section 21.060. SBEC's authority to take
              action against a person for an offense listed in section 21.060 is
              discretionary.

                                            Very truly yours,




                                            Attorney &a1        of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
