Opinion No. ( 1978 )

Honorable Joe S. Gonzales Chairman State Board of Polygraph Examiners Suite 502 Lamar Crest Office Tower 7701 North Lamar Austin, Texas 78752

Re: Whether violation of the Board of Polygraph Examiners' 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:

[a]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).

In Attorney General Opinion O-872 (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); O-5047 (1943). In our opinion, this view is equally 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.

Very truly yours,

John L. Hill Attorney General of Texas

APPROVED:

David M. Kendall First Assistant

C. Robert Heath Chairman Opinion Committee