Untitled Texas Attorney General Opinion ( 1991 )

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&ate of lEexa5
DAN MORALES December l&l991
.~TTImx;EI
WSER.4L
Ms. Brenda H. Collier Opinion No. DM-68
Chair
Texas Board of Private Investigators Re: Whether article 4413(29bb),
and Private Security Agencies V.T.C.S., authorizes the Texas Board of
P.O. Box 13509, Capitol Station Private Investigators and Private Security
Austin, Texas 78711 Agencies to bring disciplinary proceed-
ings against a licensee, registrant, or com-
missioned security officer indicted for or
charged with but not .convicted of the
commission of a felony (RQ-96)
Dear Ms. Collier:
The Texas Board of Private Investigators and Private Security Agencies (the
“board”) is authorized by The Private Investigators and Private Security Agencies
Act (the “act”) to regulate certain private investigative activities and various aspects
of the private security industry. See V.T.C.S. art. 4413(29bb).l You ask whether the
board is authorized under section 11B of the act to bring a disciplinary proceeding
against a licensee, registrant, or commissioned security officer who has not been
convicted of committing a felony, but who has been either indicted for commission
of a felony involving a non-violent crime or charged with commission of a felony
involving a violent crime.
We conclude that the board may not, on the basis of an indictment or the
filing of felony charges alone, take such action. The board may only take
9%~ act authorizes the board to issue keases, registrations, and security officer commissions.
See, e.&, V.T.C.S. art. 44l3(29bb), 9% I3 - 15.19 - 20.32 - 33. A “license” authorizes an individual or
entity to perform services as an investigation company or security services contractor. Id 9 2(U), (17).
A “registration” is a permit issued to an individual authorizing the performance of various investigative’
and security services. Id 5 2(21), (22). A “security oft&r commission’ authorizes a security ofticer to
carry a fuearm during the performance of his duties as a security officer. Id 5 2(U). Securityofticers
who arc. registered but not commissioned may not carry firearms during the performance of their
duties.
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Ms. Brenda H. Collier - Page 2 (DM-68)
disciplinary action pursuant to a hearing in which proof is offered that a particular
individual’s conduct violates standards the board establishes by rule.
Subsection (a) of section 11B of the act authorizes the board to discipline
licensees, registrants, and commissioned security officers. Subsection (a) provides in
part:
(a) The board shall revoke or suspend any registration,
license, or security officer commission, reprimand any registrant,
licensee, or commissioned security officer, or deny an
application for a registration, license, or security officer
commission, or renewal, thereof, or may place on probation a
person whose registration, license, or security officer
commission has been suspended, on prooE
(1) that the applicant, licensee, commissioned security
officer, or registrant has violated any provisions of this Act or of
the rules and regulations promulgated under this Act;
(2) that the applicant, licensee, commissioned security
officer, or registrant has committed any act resulting in
conviction of a felony;
(3) that the applicant, licensee, commissioned security
officer, or registrant has committed an act after the date of
application for a registration, license, or security officer
commission that results in a conviction of a misdemeanor
involving moral turpitude.
V.T.C.S. art. 4413(29bb), 5 llB(a); see, also id. 0 llB(e)~ (in instances board
authorized to suspend a license, it may impose civil penalty in lieu of suspension).
The board is thus required to bring disciplinary proceedings against an applicant,
licensee, registrant, or commissioned security officer who violates any provision of
the act or of the board’s rules.2 V.T.C.S. art. 4413(29bb), 9 llB(a)(l).
*Section 11B was added to the act in 1975. Acts 1975, 64th Leg., ch. 494, 8 1, at l318.
Subsection (a) of that section initially permitted but did not require the board to bring disciplinary
proceedings. See also Attorney General Opinion M-884 (1971) (construing predecessor section,
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Ms. Brenda H. Collier - Page 3 (DM-68)
If the board initiates a disciplinary proceeding against a person pursuant to
subsection (a) of section llB, that person is entitled to a hearing before the board
governed by the Administrative Procedure and Texas Register Act. Id. $ llB(b),
(c). In accordance with that act, no license may be suspended, revoked, or annulled
unless its holder has been provided notice and a hearing prior to suspension,
revocation, or annulment. V.T.C.S. art. 6252.13a, 5 18(c); see uLso Texu~ Dep’t of
Health v. Gulf Nuclear, Inc., 664 S.W.2d 847 (Tex. Civ. App.--Austin 1984, no writ)
(APTRA mandates provision of hearing before license suspension).
We turn now to the ,rules at issue here. The board has adopted by rule a
“Code of Professional Responsibility and Conduct.” 22 T.A.C. $5 423.1 - 423.3.
Section 423.1 establishes certain standards of conduct for “licensees” that apply to a
registrant or a commissioned security officer as well as to a licensee. See id. 5 423.12
(defining “[llicense” for purposes of rules). Section 423.1 provides in part:
(f) No licensee, owner, officer, partner, shareholder, or
employee shall be involved in the following:
. . . .
(2) indictment on a felony involving a non-violent crime;
(3) filing of criminal charges on a felony involving a violent
crime.
Under Texas administrative law, agency rules are valid only if expressly or
impliedly authorized by statute. State v. Jackson, 376 S.W.2d 341 (Tex. 1964); Bexar
County Bail Bond Bo! v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.--San Antonio
1980, no writ); Attorney General Opinion JM-1017 (1989). Thus, a valid rule must
not impose “additional burdens, conditions, or restrictions beyond or inconsistent
with the statutory provisions.” Hollywood Calling v. Public Utile Comm’n of Texas,
805 S.W.Zd 618, 620 (Tex. App.--Austin 1991, no writ) (additional restriction invalid
since not part of statute’s specific restrictions on user); see &o Bloom v. Texus State
section 18 of act, and holding board had discretionary authority to issue license to convicted felon).
The legislatare made subsection (a) mandatory in 1981. Acts 1981,67th Leg., cb. 773,s 9, at 2900.
p. 341
Ms. Brenda H. Collier - Page 4 (DM-68)
Bd. of Examiners of Psychologists, 492 S.W.2d 460 (Tex. 1973) (board certification
requirement in addition to those in statute void).
No provision of the act expressly grants the board the power to adopt
subsections (f’)(2) and (f)(3) of section 423.1. Nor does any provision provide the
board the implied power to adopt those subsections. Section 11(a) of the act
currently provides that the board shall have the power and duty:
(1) to determine the qualifications of licensees, registrants,
and commissioned security officers as provided in this Act;
(2) to investigate alleged violations of the provisions of this
Act and of any rules and regulations adopted by the board;
(3) to promulgate all rules and regulations necessary in
carrying out the provisions of this Act; and
(4) to establish and enforce standards governing the safety
and conduct of persons licensed, registered, and commissioned
under the provisions of this Act.
The rules at issue here are inconsistent with these provisions. In accordance
with subsections (a)(3) and (a)(4) of section 11, the board may adopt rules
identifying and prohibiting specific conduct. Upon proof of an individual’s violation
of such rules after notice and hearing, the board would be authorized pursuant to
section 11B to discipline that individual by revoking or suspending his license,
registration, or commission. An administrative hearing on a violation of such rules
would necessarily involve proof of commission of the prohibited conduct. In
contrast, subsections (f)(2) and (f)(3) by their express terms authorize the board to
discipline an individual merely on the filing of an indictment or criminal charges,
and thus, without proof of commission of the conduct underlying the indictment or
charges. Since the board may not impose restrictions that are inconsistent with its
statutory powers, subsections (f)(2) and (f)(3) are invalid.
In summary, the board possesses neither the express nor the implied power
to adopt subsections (f)(2) and (f)(3) of section 423.1 of title 22 of the Texas
Administrative Code. Consequently, the board may not pursuant to V.T.C.S. article
4413(29bb), section 11B reprimand a licensee, registrant, or commissioned security
officer, or revoke or suspend a license, registration, or security officer commission of
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Ms. Brenda H. Collier - Page 5 (DM-68)
a person who has been indicted for or charged with but not convicted of a felony.
Although we conclude the rules at issue here are invalid, the legislature in section
11(a)(4) has expressly given the board the authority to establish and enforce
standards governing the conduct of a licensee, registrant, or commissioned security
officer, and in accordance with that authority the board may adopt rules prohibiting
a licensee, registrant, or commissioned security officer from engaging in specific
conduct, including specific criminal conduct. If the board adopts such a rule, the
board could then discipline any person violating the rule by suspending or revoking
his license, registration, or commission as provided by section 11B of the act.
SUMMARY
Under article 4413(29bb), V.T.C.S., the Texas Board of
Private Investigators and Private Security Agencies possesses
neither the express nor the implied power to adopt title 22,
section 423.1(f)(2) and (f)(3), of the Texas Administrative Code.
Thus, the board may not pursuant to V.T.C.S. article
4413(29bb), section 11B reprimand a licensee, registrant, or
commissioned security officer, or revoke or suspend a license,
registration, or security officer commission of a person who has
been indicted for or charged with but not convicted of a felony.
The board, however, is authorized by section 11(a)(3) and
11(a)(4) of the act to adopt rules prohibiting specific criminal
conduct, and on proof of a person’s violation of such rules after
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Ms. Brenda H. Collier - Page 6 (~~-68)
notice and hearing, revoke or suspend that person’s license,
registration, or commission as provided by section 11B of the
act.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLJE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Celeste Baker
Assistant Attorney General
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