                               The Attorney                  General of Texas

II’ 1 MAlTOX                                          Decetdler     31, 1984
4 xney General


3 mm. Cowl BuildIn            Woodrow W. Iliac,       P.E.                          Opinion    No.JM-290
3.0. Box 12545                Executive    Director
4ur1in. TX. 7S711.2S49        Texas State Board of Registration                     Re:      Whether the license     of
5’ ‘4752501                      for Professional     Kngineers                     a registered   engineer must be
TI ,x 9lWS74.1367
TemCODler 5121475O288
                              P. 0. Drawer 18329                                    revoked    upon his   conviction
                              Austin, Texas       78760                             of a felony

7 Jackson. Suile 700          Dear Mr. Mize:
D61Iad. TX. 7WO2JSO9
2w7*2-S944
                                    You ask whether the provisions          of article     6252-13~. V.T.C.S.,         an
                              act relating     to occupational       and professional         licensing      of certain
4824 Alberta he.. Suite 150   persons    with crimlw:l      backgrounds,     conflict     with    provisions     of the
El Paso. TX. 799052792        Texas Engineering      Pmctice    Act, article      3271a, V.T.C.S..       regsrding   the
9ll53534s4                    revocation    of licenses    issued by the Texas State Board of Registration
                              for Professional      Engineers.     Specifically,      you ask whether revocation
1001 1exalJ. suite 700        of the license     of a mgistered      professional      engineer     is mandatory upon
I uston. TX. 77002.3111       his conviction     of a f$elony.
7 u222-5SS9
                                     In 1981 the le$,islature    enacted article      6252-13~. V.T.C.S.   That
                              statute,   after   excluding    from its    application     judges, lawyers,  and
t I Broadway. Suite 312
1 Dbock. TX. 79401-3479
                              peace officers    (or !,c:rsons ticeking to become such; see also V.T.C.S.
9081747.5229                  6252-13d,   55). provides    in section   4(a):

                                                A liceming        authority      9    suspend or revoke an
d 39 N. Tenth. Suite S
                                            existing    slid       license,     disqualify     a person from
McAllen. TX. 7SY31-1885
512lSS2-4S47                                receiving       s license.       or deny to a person            the
                                            opportunity      to be examined for a license              because
                                            of    a person’s        conviction      of a felouy       or mis-
 200 Mlkl Plua. suite 400                   demeanor if        the     crime directly        relates    to the
 Sm Antonlo. TX. 782062797
                                            duties     al;!     responsibilities          of    the  licensed
 : Y2254191
                                            occupatiot~       (Emphasis added).

 An Equal OpportunityI         Seetlon    4 (e) , howevtrr.       provides:
   firmath Action Employsr
                                            Upon a     Hcensee’s      felony     conviction,      felony
                                            probation -revocation,      revocation     of parole,      or
                                            revocation   of mandatory supervision.          his licecse
                                            shall be ::twoked.     (Emphasis added).

                                     It has been suggested      that sections    4(a) and 4(e) of article
                               6252-13~ are in irrmrconcilable    conflict  because section  4(a) indicates
                               that an existing   valid   license   may be revoked for conviction       of a
Mr. Woodrow W. Wire. P.E.          - PdlSe 2      (311-290)




felony      If     the    felony     di,rectly      relates     to    the    duties     and
responsibilities         of the     1i~:ensed     occupation,      while   eection     4(a)
requires      the mandatory revocation           of a license       if the licensee       is
convicted      of 3      felony.     Altematively~        it hae been suggested        that
both    sections      may stand     if   rection     4(e)    la read to require         the
revocation      of a license     for a ,felony &         if a determioatlon      has first
been made pursuant to section            4(a) that the felony directly         relates    to
the duties       and responsibilit~.es      of the licensed      occupation.      We think
both provisions        may stand, but for a different          reaaon.

       In our opinion,            section     4(a)    of the    statute     controls    the
discretion       given    licensing       boards    concerning   the effect       of major
criminal     law transgressions         lyr a person before he receives          a license
and the effect         of his minor transgressions,              whenever     they occur.
Section    t(e),     on the other bend, controls            the weight to be given by
such boards       to a felony conviction           that occurs while the actor is a
licensed      representative        of the profession        or occupation.       It takes
away the board’s            discretion      and makes revocation        of the license
mandatory,      In our opinion.

        This difference       In the operation          of the     two article         6252-13~
 sections    does not put them in conflict,            although section       4(a) might be
 read by itself       to “allow” a permfssive         revocation      or suspension        of an
 existing    license     for a felony     conviction      upon the “directly           relates”
 conditions.        Rules    of   statutory      construction         followed      in Texas
 eliminate     any “conflict”      wit’h the mandatory provision.               for where       a
 permissive      provision     of a statute         is     confronted      by a mandatory
 provision,      the permissive      provision     yfelds.      avolding     conflict.        See
 Langdeau v. Burke InvestmentJ&,              351 S.W.Zd 287 (Tex. Civ. App. - =
 Antonio 1961), aff’d.        358 S.N.2d 553 (Tex. 1962); Kerrvflle                Bus Co. v.
 Continental      Bus-em.        208 S.W.Zd 586 (Tex. Civ. App. - Austin 1947.
 writ ref’d n.r.e.);        Attorney General Opinion MU-457 (1982).

        It is argued, however, citing            Schware v. Board of Bar Examiners.
 353 U.S. 232 (1957). thet sr1t.h an interpretation                  of the statute      would
 render it unconstitutional          BUSa depriv&oo             of due process       or equal
 protection      under the federal. Conatltution            - an arbitrary        deprivation
 of the “freedom to develop             one’s     talents.”       See I Antieau.        Modern
 Constitutional        Law, 13:16       at    227     (1969).     ?&ware        involved      an
 applicant      for a state     bar examination            who was excluded         therefrom
 primarily     for past political     activities.          Re also had a record of past
 criminal     arrests,   but no convictions.          The United States Supreme Court
 held his exclusion        on that I~sis      to be improper.          In our opinion,       the
 revocation      of the license    af a current          licensee     for conviction       of a
 felony     offense    while currently        licensed       is easily    distinguishable.
 See
 -     Barsky    v.  Board  of Regerls.    347    U.S.   442   (1953).

       A felony is a crime fc’r which a permissible    punishment  is death
 or confinement   in the penitentiary.  See Penal Code 51.07(a)(14);      P.x
 parte Blume, 618 S.W.Zd 373 ‘(Tex. Cri.App.       1981).   Every felony G




                                         n.   1289
Mr. Woodrow W. hire,        P:E.   - PalSa 3     (JM-290)




an “infsmous”       offense,   the conviction     of which.    under common law
principles,     is an indication     of bad character.      Bennett v. State,      5
S.W. 527 (Tex. App. 1887); g$on          v. McMullen, 527 P. Supp. 711 (N.D.
Tex. 1981).       The public   has a right     to expect.   and the state    haa a
legitimate    interest    in requkcing,    that persona licensed     by the state
(and thus given lta approval        es warranting    public confidence    in their
llcenaed    transactions)     will   be, and will     ramain.   persons    of good
character.

       It Is reasonable         to require      thet remote convictlons,            even for
serious     offenses.       not     aui:omatically       disqualify       applicants        for
licenses,    because applicants         have not yet been looaed upon the public
as licensed      practitioners       of their      chosen calling,       and evidence         of
their possible      reformation      or’current     good character      can be considered
for the purpose of refuting              inferences     from past felony        convictions
without    risk to the public.              But licensed     persons    of bad character
pose a threat        to members of the public              dealing     with them, and a
current     felony     conviction        of    a licensee      connotes      an    immediate
character     flaw,    not   some ronote        transgression       from which       reliable
inferences     of present      character     may be difficult       to draw.     See Barskx
v. Board of Regents, B.                 Cf. Emory v. Texas State Board of Medical
Examiners, No. 84-1353 (5th C?r Dec. 17. 1984).

       In our opinion,        article     6252-13~.     as we interpret  it.  easily
meets the “rational        relation:3hio”     constitutional   test and is at least
facially   constitutional.           Sue -New Orleans v. Dukes. 427 U.S.          297
(1976); United States v. Gibed, 640 F.2d 621 (5th Cir. 1981); Dixon v.
McMullen, eupra.       We therefore         turn to the relationship     of article
6252-13~. V.T.C.S.,      and art1c:l.e 3271a. V.T.C.S.,       the Texas Engineering
Practice  Act.

      The pertinent      provisioa,s    of the Texas Engineering     Practice     Act
are found in sections       8 and X2. Section 8(a) confers        on the Board of
Registered    Professional     Engineers   the authority   and power to “make and
enforce    all    rules    and regulations       necessary   . . . to    establish
standards    of conduct and lt’h:lcs of engineers.         . . .” Section     22 in
part provides:

                  Sec. 22. The Eoard shall      revoke.   suspend,  or
              refuse to renev a registration,       shall reprimand a
              registrant.  or may probate     any suspension    of any
              registrant  who is jiound guilty   of:

                      (a) The pral:tice     of any fraud or deceit             lo
                  obtaining a ceri::lficate    of registration;

                      (b) Any gross negligence.            incompetency,     or
                  misconduct     in     the   practice     of professional
                  engineering       asi     a   registered      professional
                  engineer;   or
Mt. Woodrou W. Mize.         P.E. - Pafle 4 (JM-290)




                     (c)     A violatj.cln       of       this   Act       or   a   Board
                 rule.

Conviction    of A felony is not -- aeide from any board rule that            might
touch the subject     - an expraes basis     for licenaa    revocationunder the
Texae Rngineerlng      Practice   AI:!:.  Certainly,    that  statute     does not
expreaaly    mandate the ravocatlon      of an englnacr’a     registration     upon
his conviction    of m    felony.

      These    sectionsof the Texas Engineering        Practice Act and article
6252-13~s V.T.C.S.,     are ~p;uci materiar         and must be read together
(and the law applied)     AA thou@ rhep were parts of the same act.           See
53 Tex. Jur. 2d Statutes      $186. at 281.       vhen so read, the same rn-
that resolved  the “conflict”       between the two provisions       of article
6252-13~ also resolves     any apr’srent conflict     here.

      To the       extent that article      6252-13~ mandates the revocation          of a
license or         registration       for causes   which      article     3271a does not
address      or for vhlch article         3271s permits      revocation     (but does not
require     it),     article    6252-13~ controls.     To the extent that the Texas
Engineering         Practice     Act maidlatea the revocation           of an engineer’s
registration         for causes not a~ldressad by article             6252-13~ or cauaea
for vhich        article     6252-13~ permits    revocation,       but does not require
it,    article      3271s controls.       Set Langdeau v. Burke Investment            Co.,
supra;     Kerrville        Bus Co. v. _(:ontlnental    Bus System, supra;       Attorney
General Opinion MW457 (1982).

       In our opinion,     therefore!,   it is mandatory that the Taxas State
Board      of Registration       for    Professional       Engineers  revoke    the
registration   of a registered       professional    engineer upon his conviction
of a felony vhile     so licensed.



                  It is mandatory ,that   the Texas State Board of
              Registration  for Professional   Engineers   revoke the
              registration  of a zeglstered   professional   engineer
              upon his convictiom. of s felony while so licensed.




                                                      J-b
                                                            Very truly yo
                                                                       .

                                                      -
                                                            JIM      HATTOX
                                                            Attorney General of Texas

 TOMGREFN
 First Assistant         Attorney   Genl,ral




                                               p. 1291
Mr. Woodrow W. Mire.      P.E.   - Page 5     (m-290)




DAVID R. RICBARDS
Executive Assistant Attorney        General

RICR GILPIN
Cbaiaman, Opinion    Comittee

Prepared    by Bmce Youngblood
Assistant    Attorney Ganeral

APPROVED:
OPINIONCOEMITTEE

Rick Gilpin.   Chairman
Colln Carl
Susan Garrison
Tony Guillory
Jennifer  Riggs
Bmce Youngblood
