Untitled Texas Attorney General Opinion ( 1993 )

QBfficeof tip Bttotnep Qhneral
Sbtate of Qexae
DAN MORALES
.ATTORSLI
CENERA!. July 21. 1993
Mr. Burton F. Raiiord Opinion No. DM-238
Interim Commissioner
Texas Department of Human Services Re: Whether chapter 106 of the Human
P. 0. Box 149030 Resources Code requires a fixihty that
Austin, Texas 78714-9030 submits the name of an employee for a
ctiminal conviction check to terminate the
employee if the check reveals convictions
of certain offbnses (RQ-211)
Chapter 106 of the Human Resources Code requires the Department of Human
Services (the “department”) to obtain miminal comiction checks of applicants for
employment and existing employees for facilities serving the elderly or disabled licensed by
the department and the Department of Health. You have asked whether a ficility that
vohmtarily submits the name of an employee, who is licensed pursuant to other law, to the
department for a criminal conviction check is required to terminate the employee if
convictions for certain offenses are diivered.
Your request requires us to examine the statutory framework for crimi~
conviction checks set forth in chapter 106 of the Human Resources Code.1 Subsection (a)
of section 106.004 of chapter 106 provides that a ficilii may not make an offer of
permanent employment to a person covered by the chapter2 unless the facility provides the
department with information for a criminal conviction check. Hum. Res. Code
§ 106.004(a). Subsection (b) of that section provides that a facility “may make an offer of
permanent employment to a person licensed under other law, including a nursing home
‘we nON that a state districtjudge has ndcd Ihat provisions of chapter 106 of the Human
ResourcesCode violate the Texas Constitutionon the basii that they fail to give ternhated employees
..A,6 3; ihc reasonsfor theirtmnination or an opportunityto be heard. G&tie v. TcxarLkp’r ojffumrm
Srrvs...No. 913668 (Din. Cl. ofTravis County,345tb JudicialDin. ofTexa%Jan. 24.1992). @‘d, No, 3-
92-3393 flex. Am.-Austin, March 17. 1993, n.w.b) (affmning the district anut on prombat
gmmds and c\prcssing no opinion on the constitutionalityof the statutesat issue). To our knowledge,the
le@slaNrchas not amendedthis chaptersince it was declaredunconstitutional,despitethe districtcourt’s
urging. See id. You ask about the applicationof chapter106 to a particularclass of employees;your
requestdoes not requirethis olke to considerits constitutionality. In this opinion, WCmucky answu
your qwstions regardingstaNtoryconslnulion ofcbpler 106. We do not cons&r its Wn5liNtidity.
?kction 106.001 defines ‘kility~ for pmposcs of chapter106. tkction 106.002 delineatesthe
applicabilityof the clmplerto variousfacilityCmpl-.
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Mr. Burton F. Raiford - Page 2 0X4-238)
administrator or a nurse, without foUow+ng the procedures under this chapter for a
crimd conviction check.” Id 4 106.004(b). Although subsection (b) exempts facilities
from submitting the names of prospective employees “licensed under other law” to the
department, subsection (d) requires the department to obtain a criminal conviction check
for such persons employed at a thcihty upon the fhcilitys request. See id 5 106.004(d).
In addition, section 106.008(a) provides that a facility may not hire a person or
shall immediately terminate a person’s employment if the results of the check reveal that
the person has been convicted of an offense listed under section 106.003(b). The offenses
listed under section 106.003(b) include a misdemeanor or felony classified as an offense
against the person or family, a misdemeanor or felony classified as public indecency, a
wntrolled substance felony, a felony in violation of section 31.03 of the Penal Code,
robbery or aggravated robbery under chapter 29 of the Penal Code, or burglary under
section 30.02 of the Penal Code. Id 0 106.003(b), see afso Attorney General Opinion
JM-1237 (1990) (addressing the scope of criminal conviction checks under chapter 106 of
the Human Resources Code).S
You inform us that a ficilii voluntarily requested the department to obtain a
crhinal conviction check of an existing employee, a licensed vocational nurse, pursuant to
section 106.004(d). The check revealed a history of convictions of offenses listed under
section 106.003(b). After the facility was notified of the results of the check, it asked the
department if it is requimd to discharge the employee given that it was exempted from
seeking the criminal wnviction check in the first place pursuant to section 106.004(b).
You fin&r inform us that there has been no revocation proceeding against the vocational
nurse by the licensing agency. In light of this situation, you ask whether a facility that
voluntsrily submits the name of an employee- who is “licensed under other law,” as it is
permitted to do pursuant to section 106.004(d), is required to terminate the employee if
the criminal conviction check reveals a wnviction of an offense listed under section
106.003(b).
Chapter 106 appears to require a facility that voluntarily submits the name of an
employee “licensed under other law” for a criminal conviction check pursuant to section
106.004(d) to terminate the employee if the check reveals a conviction of an offense listed
under section 106.003(b). Section 106.008(a) provides in pertinent part:
[A] facility may not hire a person covered by this chapter or shall
immediately terminate a person’s employment if the results of the
criminal conviction check reveal that the person has been convicted
of an offense listed under Section 106.003(b) of this code.
‘SubswtiollS @) and (C)of section 106.008 previdc that a facility may anploy or wntinuc N
employ a personconvicIedof a controlledsubslanceoffense or a pus4n wnvicted underSC&on31.03 of
the Penal code undercatah weditions.
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Mr. Burton F. Raiford - Page 3 (DM-238)
Clearly, the prohibition against hiring “a person covered by this chapter” t&s to job
applicants for whom facilities are required to obtain criminal conviction checks pursuant to
section 106.004(a) before offering pwnanent employment. We also believe that this
phrase refers to applicants who may have been offered temporary employment pending the
outwme of a criminal conviction check under section 106.0054 The requirement that a
facility “immediately terminate a person’s employment,” on the other hand, appears to
refer to persons “licensed under other law” employed by facilities for whom facilities may
obtain criminal background checks pursuant to section 106.004(d). We note, however,
that this requirement could also be read to refer solely to persons who may have been
temporarily employed pending the outcome of a criminal conviction check under section
106.005. Because the requirement that a facility “immediately terminate a person’s
employment” is ambiguous, we turn to the legislative history for guidance.
The legislative history supports the conclusion that section 106.008(a) of the
Human Resources Code requires a facility that voluntarily obtains a criminal conviction
check of an employee ‘licensed under other law” to terminate the employee in the event
the check reveals a conviction of a listed offense. The legislation enacting chapter 106 of
the Human Resourws Code also repealed former article 4442c, section 18, V.T.C.S., an
ahnost identical statutory provision. See Acts 1989, 71st Leg., ch. 1181, $5 1, 2 (etT
Sept. 1, 1989); Acts 1989. fist Leg., ch. 1225, @ 1.4 (eff Sept. 1, 1989). Chapter 106
of the Human Resources Code changed the requirements of section 18 of former article
4442c only in very limited respects.
Specifically, chapter 106 added a more detailed definition of the facilities covered
by the chapter, Hum. Res. Code 9 106.001. and clarified that the criminal conviction
check requirements apply to persons applying for employment with a home health agency
only if the person will be employed in a position which involves direct contact with a
wnsumer of home health services, id 4 106.002(b). It also added robbety, aggravated
robbery, and burglary to the list of offenses a conviction for which would require a facility
to refuse to hire or to discharge a person, id 3 106.003(b)(S), (6) and provided that a
facility may employ or continue to employ a person convicted under section 3 1.03 of the
Penal Code under certain conditions, id 8 106.008(c). Finally, it addressed the
applicability of the criminal conviction check provisions to a federally-required nurse aide
registry program. Id. 5 106.012. None of the changes affected the provisions mandating
that facilities obtain criminal conviction checks for certain prospective, unlicensed
;;.&ets, permitting facilities to obtain criminal conviction checks for employees
“licensed under other law,” or mandating that facilities not hire prospective employees or
terminate existing employees if the criminal conviction check reveals a conviction of a
listed offense. Nor does anything in the legislative history indicate that the legislature
intended to alter these substantive provisions of former section 18, article 4442~.
‘Section 106.005 pm&s facilitiesto c&r such a job appticaattempemryemp@m.eatpendinga
criminal wnviclion check.
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Mr. BurtonF. Raiford - Page 4 (DH-238)
Section 18(g) of former article 4442~. V.T.C.S., provided as follows:
H)f the results of a miminat conviction check reveal that an
applicant for employment at a nursing home or custodial care home
has been convicted of an offense listed in Subsection (d) of this
section, the institution may not hire the person. . . mf the results of
a criminal conviction check reveal that an employr or u person
hired on u temportny busis under Subsection (c) of this section has
been convicted of an offense listed in Subsection (d) of this section,
the institution shall immediately terminate the person’s employment.
Acts 1987, 70th Leg., ch. 1048. 8 1. at 3516 (emphasis added). Clearly, under section
18(g) of former article 4442c, the department’s discovery of a history of certain criminal
convictions prohibited a facility from hiring a person and required a faciity to terminate
both persons hired on a temporary basis pending a criminal conviction check and
employees “licensed under other law” for whom criminal conviction checks were available
but not required. Because nothing in the text or legislative history of the cutrent provision
indicates that the legislature intended to change this very significant aspect of the law
when it repeated section 18 of former article 4442c, V.T.C.S., and enacted chapter 106 of
the Human Resources Code, we conclude that section 106.008(a) requires a facility that
vohmtarily obtains a criminal conviction check of an employee “licensed under other law”
to terminate the employee in the event the check reveals a conviction of an offense listed
under section 106.003(b).5
SUMMARY
Pursuant to section 106.008(a) of the Human Resources Code, a
facility that voluntarily obtains a uiminal conviction check of an
employee “licensed under other law” is required to terminate the
employee in the event the check reveals a conviction of an offmse
listed under section 106.003(b).
DAN MORALES
Attorney General of Texas
%f course, under section 106.008, a facility may continue IOemploy a person convicted of a
wntrolled substanceoffense or a person wnvictcd under section 31.03 of UK Penal &de under ccdn
wnditionr. See Hum.Res. Code 5 lO&WS(b).(c).
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Mr. Burton F. Raiford - Page 5 (DM-238)
WILL PRYOR
Fii Assistant Attorney General
MARYKELLER
Deputy Attorney General for Litigation
RENEA HICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepared by Mary R. Grouter
Assistant Attorney General
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