Can a nursing home be forced to reject or fire a worker for an old conviction even though the law says it shouldn't count against them?

Texas AG Opinion JM-1237: Do "It Doesn't Count" Laws Beat the Elder-Care Hiring Bar?

Plain-English summary

The Commissioner of the Texas Department of Human Services asked about the criminal-history rules for people who work in facilities serving the elderly or disabled, such as nursing homes, home health agencies, adult day care centers, and facilities for people with intellectual disabilities. Under chapter 106 of the Human Resources Code, those facilities generally have to run a criminal conviction check before offering permanent employment, cannot hire someone whose record shows a conviction for a listed offense, and must immediately terminate an employee if a check turns up such a conviction.

The department flagged a tension. Some of the listed offenses are Class C misdemeanors, and Penal Code section 12.03(c) says that "conviction of a Class C misdemeanor does not impose any legal disability or disadvantage." The department also pointed to article 42.12, section 23 of the Code of Criminal Procedure, which releases a defendant who successfully completes probation from "all penalties and disabilities" resulting from the offense. Did either of those general protections override the chapter 106 hiring bar?

The Attorney General said no to both. Even assuming a bar on facility employment is a "legal disability or disadvantage," chapter 106 controls. It is the more specific law, because it deals only with employment at a defined kind of facility, and under Government Code section 311.026 a specific provision prevails over a conflicting general one. It is also the later enactment (1989), and under Government Code section 311.025(a) the later statute prevails when two are irreconcilable. The opinion applied the same reasoning to article 42.12, section 23, adding that denial of facility employment is not the kind of penalty or disability that provision was meant to lift. It also noted a long-standing view (Attorney General Opinion M-640 (1970)) that completing probation restores civil rights like voting and jury service but does not erase the fact of the conviction, and employers are still entitled to know the truth about an applicant's record.

Currency note

This opinion was issued in 1990 and interprets chapter 106 of the Human Resources Code and related statutes as they stood then, including references to the Texas Controlled Substances Act (article 4476-15, V.T.C.S.) and specific Penal Code sections. Criminal-background-check requirements for long-term care and related facilities have been amended and reorganized many times since, and some Penal Code offense classifications have changed. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

Facilities serving the elderly or disabled: Nursing homes, home health agencies, adult day care centers, and facilities for people with intellectual disabilities had to run conviction checks, could not offer permanent employment to a person with a listed conviction, and had to terminate an employee whose check revealed one. The opinion confirmed those duties were not softened by the general "it doesn't count" statutes.

Job applicants and employees with records: A Class C misdemeanor conviction or a completed probation for a listed offense could still block employment at these facilities, even though those events carry no legal disability in other contexts.

The Department of Human Services: The department received a clear answer that it could enforce the chapter 106 employment bar without being overridden by Penal Code section 12.03(c) or article 42.12, section 23.

Common questions

If a Class C misdemeanor is "no legal disability," how can it block a job?
Because chapter 106 is a specific, later law aimed only at employment in facilities serving the elderly or disabled. The opinion concluded that specific, later statute prevails over the general Penal Code rule, so a listed Class C misdemeanor conviction can still bar employment at these facilities.

Doesn't finishing probation wipe the slate clean for hiring?
No. Article 42.12, section 23 releases a person from penalties and disabilities and restores civil rights, but the opinion held it does not override the chapter 106 bar, and it does not erase the fact of the conviction. Long-standing authority holds an employer is still entitled to know the truth about an applicant's record.

Which facilities and offenses does the bar cover?
It covers the facilities defined in chapter 106 (including nursing homes, home health agencies, and facilities for people with intellectual disabilities). The disqualifying offenses in section 106.003(b) were offenses against the person or family, public indecency, certain felony drug offenses, felony theft, robbery or aggravated robbery, and burglary.

Background and statutory framework

Chapter 106 of the Human Resources Code let the Department of Human Services, on behalf of the Department of Health, obtain criminal conviction records from the Department of Public Safety or the FBI to investigate employees and applicants at covered facilities (section 106.003(a); "facility" defined in section 106.001). A facility generally could not offer permanent employment until it furnished identifying information to the department, which then had to request a conviction check (section 106.004(c)); temporary employment was allowed if a check was initiated within 72 hours. Section 106.002 narrowed the checks in some settings (for example, at a home health agency the chapter applied only to positions involving direct contact with a consumer of home health services). Section 106.008(a) barred hiring, and required immediate termination, when a check showed a conviction for an offense listed in section 106.003(b).

The requester's concern was the overlap with two general provisions. Penal Code section 12.03(c) provides that conviction of a Class C misdemeanor imposes no legal disability or disadvantage, a rule the Practice Commentary explains was meant to preserve rights like voting, holding office, and jury service. Article 42.12, section 23 of the Code of Criminal Procedure releases a defendant who satisfactorily completes probation from all penalties and disabilities resulting from the offense. The opinion resolved the conflict with two interpretive rules in the Government Code: section 311.026, under which a specific provision prevails over a conflicting general one, and section 311.025(a), under which the later-enacted statute prevails when two are irreconcilable. Chapter 106, enacted in 1989, is both more specific and later than the general provisions, so it controls. On article 42.12, section 23, the opinion added that denial of facility employment is not the kind of penalty or disability that provision lifts, relying in part on Attorney General Opinion M-640 (1970), which held that a release from penalties and disabilities restores civil rights but does not erase the underlying conviction or a prospective employer's right to know about it.

Citations

Statutes:

• Tex. Hum. Res. Code § 106.003 (authority to obtain conviction records; list of disqualifying offenses in subsection (b))
• Tex. Hum. Res. Code § 106.008 (bar on hiring and requirement to terminate on a disqualifying conviction)
• Tex. Penal Code § 12.03(c) (conviction of a Class C misdemeanor imposes no legal disability or disadvantage)
• Tex. Code Crim. Proc. art. 42.12, § 23 (release from penalties and disabilities on satisfactory completion of probation)
• Tex. Gov't Code § 311.025(a) (later-enacted statute prevails when two are irreconcilable)
• Tex. Gov't Code § 311.026 (specific provision prevails over a conflicting general provision)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1237
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1237.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. A badly degraded passage in the article 42.12 quotation has been reconstructed from the standard statutory text.

October 22, 1990

Mr. Ron Lindsey
Commissioner
Texas Department of Human Services
P. O. Box 149030
Austin, Texas 78714-9030

Opinion No. JM-1237

Re: Scope of criminal history investigations of employees in certain facilities licensed by the Texas Department of Health or under contract with the Texas Department of Human Services (RQ-2137)

Dear Mr. Lindsey:

You have requested our opinion regarding legislation enacted by the 71st Legislature which relates to criminal history checks of employees in certain facilities serving the elderly or disabled.

Section 106.003(a) of the Human Resources Code provides:

The Texas Department of Human Services, on behalf of the Texas Department of Health, is entitled to obtain criminal conviction records maintained by the Department of Public Safety or the Federal Bureau of Investigation Identification Division to investigate an employee or a person applying for employment at a facility.

See Hum. Res. Code § 106.001 (defining "facility").

This provision applies to employees of various facilities, licensed by the Department of Health, including nursing homes, home health agencies, adult day care facilities, and facilities for the mentally retarded. Id.

A facility is prohibited from offering permanent employment to any person, except those licensed under other law, unless it first furnishes personal identifying information to the Department of Human Services. Id. § 106.004(a), (b). When the information has been furnished, the Department of Human Services is required to request the Department of Public Safety to conduct a criminal conviction check on the individual. Id. § 106.004(c). Temporary employment is permitted, so long as the facility initiates a criminal conviction check within 72 hours after the individual accepts the temporary employment. With certain exceptions,[1] a facility is prohibited from hiring any person if the records show that he or she has been convicted of an offense listed in section 106.003(b). See id. § 106.008(a). Criminal conviction checks are somewhat limited by section 106.002, which provides:

(a) If a facility is part of a large complex of buildings, the requirement of a criminal conviction check under this chapter applies only to a person who will work primarily in the immediate boundaries of the facility.

(b) This chapter applies to an employee or a person applying for employment at a home health agency only if the employee or person is or will be employed in a position the duties of which involve direct contact with a consumer of home health services.

However, in addition to being required to run checks on most applicants for employment, a facility is empowered, although not required, to run a check on "any person employed" there, including one licensed under other law and one exempt under section 106.002(b). See id. § 106.004(d). A facility is also required under section 106.008(a) to "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).

Section 106.003(b) limits the types of offense which automatically bar permanent employment and which require termination. The applicable offenses are limited to the following:

(1) a misdemeanor or felony classified as an offense against the person or the family;

(2) a misdemeanor or felony classified as public indecency;

(3) a felony violation of a statute intended to control the possession or distribution of a substance included in the Texas Controlled Substances Act (Article 4476-15, Vernon's Texas Civil Statutes);

(4) a felony violation of Section 31.03, Penal Code;

(5) robbery or aggravated robbery, as described by Chapter 29, Penal Code; or

(6) burglary, as described by section 30.02, Penal Code.

You indicate that some of the listed offenses are Class C misdemeanors, specifically the following provisions of the Penal Code:

§ 21.06. Homosexual Conduct.

§ 22.01(a)(2). Threatening another with bodily harm.

§ 22.01(a)(3). Causing physical contact with another that may be reasonably regarded as offensive or provocative.

§ 22.08. Aiding Suicide.

§ 22.10. Leaving a child in a vehicle.

§ 43.22. Displaying or distributing obscene material.

You express concern that the required dismissal of permanent employees and the bar of permanent employment to applicants convicted of a Class C misdemeanor may conflict with section 12.03(c) of the Penal Code, which provides:

Conviction of a Class C misdemeanor does not impose any legal disability or disadvantage.

Section 12.03(c) is a long-standing feature of the penal laws. According to the Practice Commentary, it is designed to ensure that "conviction of a Class C (justice court) misdemeanor does not deprive the defendant of his rights to vote, hold public office, serve on a jury, or other rights of citizenship." Searcy & Patterson, Practice Commentary, Tex. Penal Code Ann. § 12.04 (Vernon 1974). Even if we were to construe a bar of employment at a facility for the elderly or disabled as a "legal disability or disadvantage," however, it is clear that the employment restrictions of chapter 106 of the Human Resources Code would control over section 12.03.

In the first place, they are the more specific enactments, since they deal only with restrictions on employment at a certain kind of "facility." Section 311.026 of the Government Code provides:

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

The employment restrictions of the Human Resources Code were enacted in 1989. Section 311.025(a) of the Government Code provides:

Except as provided by Section 311.031(d), if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.

Thus, it is clear, both from the rule that the specific prevails over the general, and the rule that the statute latest in date of enactment prevails, that section 12.03(c) of the Penal Code cannot control over the employment restrictions of chapter 106 of the Human Resources Code.

You also express concern about a potential conflict between the employment bar of chapter 106 and section 23 of article 42.12 of the Code of Criminal Procedure. That statute provides:

At any time, after the defendant has satisfactorily completed one-third of the original probationary period or two years of probation, whichever is the lesser, the period of probation may be reduced or terminated by the court. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. In case the defendant has been convicted or has entered a plea of guilty or a plea of nolo contendere to an offense other than an offense under Subdivision (2), Subsection (a), Section 19.05, Penal Code, or an offense under Article 6701l-1, Revised Statutes, and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that:

(1) proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense; and

(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received probation under this section in issuing, renewing, denying, or revoking a license under that chapter. (Emphasis added.)

The "all penalties and disabilities" provision of section 23 is apparently equivalent to the "legal disability or disadvantage" language of section 12.03 of the Penal Code. More than 20 years ago, when section 23 was part of section 7 of article 42.12, this office considered the extent of a release from "all penalties and disabilities." Attorney General Opinion M-640 (1970) said that an individual who qualified under this provision:

may serve on a jury or vote at an election provided that he is otherwise qualified. These are civil rights which the statute seeks to restore to such defendant.

The opinion emphasized, however, that since

no provision is made for expunging the "judgment of conviction" from the record, the statute makes it clear that the "conviction" itself has not been entirely erased.

The opinion then addressed the specific question asked:

The right of such a defendant to state to his prospective employer that he has never been convicted is not dealt with in the statute. Employers are entitled to know the truth about their prospective employees, and this the statute has not taken away. Such is not a "penalty" or "disability" which was released by the statute. It is, therefore, concluded that such person cannot state in an application of employment that he had never been "convicted of a felony."

In our opinion, the denial of employment in a "facility" under chapter 106 of the Human Resources Code is not the kind of penalty or disability contemplated by section 23 of article 42.12 of the Code of Criminal Procedure. In addition, the same considerations that are applicable to your first question are also present here. The employment restrictions of chapter 106 are more specific, and they were enacted later, than the restoration of civil rights provision of section 23. We conclude, therefore, that section 23 cannot prevail over the employment restrictions of chapter 106 of the Human Resources Code.

SUMMARY

Neither section 12.03(c) of the Penal Code nor section 23 of article 42.12, Code of Criminal Procedure, acts as a limitation on chapter 106 of the Human Resources Code, which bars the employment, in certain facilities serving the elderly or disabled, of persons who have been convicted of certain felonies and misdemeanors listed in chapter 106.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] Id. § 106.008(b), (c).