Untitled Texas Attorney General Opinion ( 1978 )

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
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APPROVED:
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DAVID M. KENDALL, First Assistant
Opinion Committee
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p. 4687