If a care facility voluntarily runs a background check on a licensed nurse and finds a disqualifying conviction, does it have to fire them?

Plain-English summary

Texas facilities that care for elderly or disabled people have to run criminal-background checks on the people they hire. There is an exception: workers who already hold a professional license under some other law, like a nurse, do not have to be checked before they are hired. But the facility can still ask the state to run a check on one of those licensed workers if it wants to. The Department of Human Services asked what happens when a facility does that voluntarily and the check comes back showing a serious conviction. Does the facility have to fire the worker, even though the check was optional?

The Attorney General said yes. The statute says a facility "shall immediately terminate" an employee if a conviction check turns up one of the listed crimes. The tricky part was that the firing language was not perfectly clear about whether it covered these voluntarily-checked licensed employees or only temporary hires. To resolve the ambiguity, the Attorney General looked at the law's history. Chapter 106 had replaced an older, nearly identical statute that plainly required firing both temporary hires and licensed employees who had the listed convictions. Nothing suggested the Legislature meant to drop that requirement when it rewrote the law, so the same rule carried forward.

The bottom line: once a facility runs the check and learns of a disqualifying conviction, it has to let the worker go, with narrow exceptions the statute spells out for certain drug and theft convictions. The opinion noted in passing that a trial court had found chapter 106 unconstitutional on due-process grounds, but the question put to the Attorney General was only about what the statute means, not whether it is valid.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Criminal-history and employment-eligibility rules for facilities serving the elderly and disabled have been substantially revised and recodified since 1993, and the opinion itself noted a court had questioned the statute's constitutionality; confirm current law before relying on anything described here.

Background and statutory framework

Chapter 106 of the Human Resources Code required the Department of Human Services to obtain criminal-conviction checks of applicants and employees at facilities serving the elderly or disabled. Section 106.004(a) bars a facility from offering permanent employment to a covered person without providing the department information for a check. Section 106.004(b) lets a facility offer permanent employment to a person "licensed under other law" (such as a nursing home administrator or nurse) without following the chapter's check procedures, but section 106.004(d) requires the department to obtain a check for such a person, employed at a facility, on the facility's request.

Section 106.008(a) provides that a facility "may not hire a person covered by this chapter or shall immediately terminate a person's employment" if the results of the check reveal a conviction of an offense listed in section 106.003(b). Those offenses include a misdemeanor or felony against the person or family, public indecency, a controlled-substance felony, felony theft under Penal Code section 31.03, robbery or aggravated robbery, or burglary under Penal Code section 30.02. Subsections (b) and (c) of section 106.008 allow a facility to employ or continue to employ a person convicted of a controlled-substance offense or a section 31.03 offense under certain conditions.

The facility here voluntarily requested a check on a licensed vocational nurse under section 106.004(d); the check revealed listed convictions, and no revocation proceeding had been brought by the licensing agency. The Attorney General found the "shall immediately terminate" clause ambiguous as to whether it covered voluntarily-checked licensed employees or only temporary hires pending a check under section 106.005, and turned to legislative history. The legislation enacting chapter 106 repealed former article 4442c, section 18, V.T.C.S., an almost identical provision whose subsection 18(g) plainly required terminating both temporary hires and licensed employees with listed convictions. Chapter 106 changed that scheme only in limited respects (a more detailed facility definition, a direct-contact limit for home-health workers, added robbery and burglary offenses, the section 106.008(c) exception, and a nurse-aide-registry provision in section 106.012), none of which altered the termination requirement. Because nothing in the text or history showed an intent to change that result, the AG concluded section 106.008(a) requires a facility that voluntarily obtains a check of an employee "licensed under other law" to terminate the employee if the check reveals a listed conviction, subject to the section 106.008(b) and (c) exceptions.

Citations

• Hum. Res. Code § 106.001 (definition of "facility"); § 106.002(b) (home-health workers covered only if in direct contact with a consumer)
• Hum. Res. Code § 106.003(b) (offenses requiring refusal to hire or termination)
• Hum. Res. Code § 106.004(a) (mandatory pre-employment check); § 106.004(b) (exemption for persons licensed under other law); § 106.004(d) (department obtains check for licensed persons on facility's request)
• Hum. Res. Code § 106.005 (temporary employment pending a check)
• Hum. Res. Code § 106.008(a) (no hire / immediate termination on a listed conviction); subsections (b), (c) (controlled-substance and § 31.03 exceptions)
• Hum. Res. Code § 106.012 (nurse-aide registry program)
• Penal Code § 31.03 (theft); § 30.02 (burglary)

Common questions

If a facility voluntarily checks a licensed nurse and finds a disqualifying conviction, must it fire the nurse?
Under this opinion, yes. The Attorney General concluded that section 106.008(a) requires a facility that voluntarily obtains a criminal-conviction check of an employee "licensed under other law" to terminate the employee if the check reveals a conviction of an offense listed in section 106.003(b).

Doesn't the licensing exemption let the facility skip all this?
The exemption in section 106.004(b) only means the facility need not run a check before hiring a licensed person. If the facility chooses to request a check under section 106.004(d) and it shows a listed conviction, the termination requirement applies.

Which convictions trigger termination?
Offenses against the person or family, public indecency, controlled-substance felonies, felony theft under Penal Code section 31.03, robbery or aggravated robbery, and burglary under Penal Code section 30.02. Sections 106.008(b) and (c) allow continued employment for certain controlled-substance and section 31.03 convictions under specified conditions.

Why did the Attorney General rely on the old statute?
Because the "immediately terminate" language was ambiguous. The Attorney General looked to the nearly identical predecessor (former article 4442c, section 18), which clearly required terminating licensed employees with listed convictions, and found nothing showing the Legislature meant to change that when it enacted chapter 106.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0238
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0238.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 21, 1993

Mr. Burton F. Raiford
Interim Commissioner
Texas Department of Human Services
P.O. Box 149030
Austin, Texas 78714-9030

Opinion No. DM-238

Re: Whether chapter 106 of the Human Resources Code requires a facility that submits the name of an employee for a criminal conviction check to terminate the employee if the check reveals convictions of certain offenses (RQ-211)

Dear Mr. Raiford:

Chapter 106 of the Human Resources Code requires the Department of Human Services (the "department") to obtain criminal conviction 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 facility that voluntarily 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 discovered.

Your request requires us to examine the statutory framework for criminal 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 facility 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 administrator or a nurse, without following the procedures under this chapter for a criminal conviction check." Id. § 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 facility upon the facility's request. See id. § 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 controlled 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. § 106.003(b); see also Attorney General Opinion JM-1237 (1990) (addressing the scope of criminal conviction checks under chapter 106 of the Human Resources Code).

You inform us that a facility voluntarily requested the department to obtain a criminal 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 required to discharge the employee given that it was exempted from seeking the criminal conviction check in the first place pursuant to section 106.004(b). You further 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 voluntarily 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 conviction 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.

Clearly, the prohibition against hiring "a person covered by this chapter" refers to job applicants for whom facilities are required to obtain criminal conviction checks pursuant to section 106.004(a) before offering permanent employment. We also believe that this phrase refers to applicants who may have been offered temporary employment pending the outcome of a criminal conviction check under section 106.005. 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 Resources Code also repealed former article 4442c, section 18, V.T.C.S., an almost identical statutory provision. See Acts 1989, 71st Leg., ch. 1181, §§ 1, 2 (eff. Sept. 1, 1989); Acts 1989, 71st 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 § 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 consumer of home health services, id. § 106.002(b). It also added robbery, 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. § 106.003(b)(5), (6), and provided that a facility may employ or continue to employ a person convicted under section 31.03 of the Penal Code under certain conditions, id. § 106.008(c). Finally, it addressed the applicability of the criminal conviction check provisions to a federally-required nurse aide registry program. Id. § 106.012. None of the changes affected the provisions mandating that facilities obtain criminal conviction checks for certain prospective, unlicensed employees, 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 4442c.

Section 18(g) of former article 4442c, V.T.C.S., provided as follows:

[I]f the results of a criminal 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. . . . [I]f the results of a criminal conviction check reveal that an employee or a person hired on a temporary basis 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, § 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 facility 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 current provision indicates that the legislature intended to change this very significant aspect of the law when it repealed 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 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 an offense listed under section 106.003(b).

SUMMARY

Pursuant to section 106.008(a) of the Human Resources Code, a facility that voluntarily obtains a criminal 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 offense listed under section 106.003(b).

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

¹ We note that a state district judge has ruled that provisions of chapter 106 of the Human Resources Code violate the Texas Constitution on the basis that they fail to give terminated employees notice of the reasons for their termination or an opportunity to be heard. Gillespie v. Texas Dep't of Human Servs., No. 91-3668 (Dist. Ct. of Travis County, 345th Judicial Dist. of Texas, Jan. 24, 1992), aff'd, No. 3-92-393 (Tex. App.-Austin, March 17, 1993, n.w.h.) (affirming the district court on procedural grounds and expressing no opinion on the constitutionality of the statutes at issue). To our knowledge, the legislature has not amended this chapter since it was declared unconstitutional, despite the district court's urging. See id. You ask about the application of chapter 106 to a particular class of employees; your request does not require this office to consider its constitutionality. In this opinion, we merely answer your questions regarding statutory construction of chapter 106. We do not consider its constitutionality.

² Section 106.001 defines "facility" for purposes of chapter 106. Section 106.002 delineates the applicability of the chapter to various facility employees.