Can a Texas security licensing board punish someone just for being indicted, before conviction?

Texas AG Opinion DM-0068: Disciplining a Security Licensee on an Indictment Alone

Plain-English summary

The chair of the Texas Board of Private Investigators and Private Security Agencies asked whether the board could discipline a licensee, registrant, or commissioned security officer who had not been convicted of a felony but had been indicted for a non-violent felony or charged with a violent felony. The Attorney General concluded the board could not act on an indictment or the filing of charges alone; it could discipline a person only after a hearing in which proof was offered that the person's conduct violated the standards the board sets by rule.

The act (article 4413(29bb)) lets the board, under section 11B, revoke or suspend a license, registration, or commission, or reprimand a holder, on proof that the person violated the act or the board's rules, was convicted of a felony, or committed an act resulting in a misdemeanor conviction involving moral turpitude. A person facing discipline is entitled to a hearing under the Administrative Procedure and Texas Register Act, and no license may be suspended or revoked without notice and a hearing first (Texas Dep't of Health v. Gulf Nuclear, Inc.).

The board had adopted a Code of Professional Responsibility and Conduct (22 T.A.C. § 423.1) whose subsections (f)(2) and (f)(3) listed "indictment on a felony involving a non-violent crime" and "filing of criminal charges on a felony involving a violent crime" as grounds for discipline. The opinion held those subsections invalid. Under Texas administrative law, an agency rule is valid only if expressly or impliedly authorized by statute and may not add burdens or restrictions inconsistent with the statute (State v. Jackson; Bexar County Bail Bond Bd. v. Deckard; Hollywood Calling v. Public Util. Comm'n; Bloom v. Texas State Bd. of Examiners of Psychologists). The act let the board adopt rules identifying and prohibiting specific conduct and then discipline a person on proof of the prohibited conduct after notice and hearing. The indictment and charge rules instead authorized discipline on the mere filing of charges, without proof that the person committed the underlying conduct, so they were inconsistent with the board's statutory powers and invalid.

The opinion added a path forward: section 11(a)(4) gives the board authority to set and enforce standards governing the conduct of licensees, so the board could adopt a rule prohibiting specific criminal conduct, and on proof that a person violated that rule after notice and hearing, discipline the person under section 11B.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Private Investigators and Private Security Agencies Act (article 4413(29bb), V.T.C.S.) was later recodified into the Occupations Code, the Administrative Procedure and Texas Register Act became the Administrative Procedure Act in the Government Code, and the board's rules have changed since 1991. Verify current law before relying on anything here.

Common questions

Could the security board discipline someone just for being indicted or charged with a felony?
Under this 1991 opinion, no. The board could discipline only after proof at a hearing that the person was convicted of a felony or violated the act or a board rule, not on an indictment or charge by itself.

Why were the board's indictment-and-charge rules invalid?
Because an agency rule cannot impose restrictions inconsistent with its governing statute. The rules let the board act on the filing of charges without proof of the underlying conduct, which conflicted with the statute's requirement of proof after notice and a hearing.

Did a licensee facing discipline get a hearing?
Yes. The opinion noted that a person the board moves against is entitled to a hearing under the Administrative Procedure and Texas Register Act, and that a license cannot be suspended or revoked without notice and a hearing.

Could the board ever discipline someone for criminal conduct short of a conviction?
Yes, but through a different route. The board could adopt a rule prohibiting specific criminal conduct, and then, on proof that a person violated the rule after notice and a hearing, discipline that person under section 11B.

Background and statutory framework

The Private Investigators and Private Security Agencies Act, article 4413(29bb), V.T.C.S., let the board issue licenses, registrations, and security officer commissions and regulate the industry. Section 11B(a) authorized discipline on proof of a violation of the act or board rules, a felony conviction, or a misdemeanor conviction involving moral turpitude, with a hearing under the Administrative Procedure and Texas Register Act (V.T.C.S. art. 6252-13a, § 18(c)). Section 11(a) gave the board power to determine qualifications, investigate violations, promulgate necessary rules, and establish and enforce conduct standards. The board's Code of Professional Responsibility and Conduct (22 T.A.C. § 423.1) included the challenged subsections (f)(2) and (f)(3). The validity analysis rested on State v. Jackson, Bexar County Bail Bond Bd. v. Deckard, Hollywood Calling v. Public Util. Comm'n of Texas, and Bloom v. Texas State Bd. of Examiners of Psychologists, with Texas Dep't of Health v. Gulf Nuclear, Inc. on the hearing requirement, and prior Attorney General Opinions M-884 (1971) and JM-1017 (1989).

Citations

Statutory and regulatory provisions:

• V.T.C.S. art. 4413(29bb) (Private Investigators and Private Security Agencies Act)
• V.T.C.S. art. 4413(29bb), § 11(a) (board powers, including rulemaking and conduct standards)
• V.T.C.S. art. 4413(29bb), § 11B (discipline on proof of conviction or violation)
• V.T.C.S. art. 6252-13a, § 18(c) (Administrative Procedure and Texas Register Act; notice and hearing)
• 22 T.A.C. § 423.1 (Code of Professional Responsibility and Conduct, including the invalid subsections (f)(2), (f)(3))

Cases:

• Texas Dep't of Health v. Gulf Nuclear, Inc., 664 S.W.2d 847 (Tex. Civ. App.-Austin 1984, no writ)
• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)
• Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.-San Antonio 1980, no writ)
• Hollywood Calling v. Public Util. Comm'n of Texas, 805 S.W.2d 618 (Tex. App.-Austin 1991, no writ)
• Bloom v. Texas State Bd. of Examiners of Psychologists, 492 S.W.2d 460 (Tex. 1973)

Prior Attorney General opinions referenced: M-884 (1971), JM-1017 (1989). Session laws: Acts 1975, 64th Leg., ch. 494, § 1; Acts 1981, 67th Leg., ch. 773, § 9.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0068
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0068.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

December 18, 1991

Ms. Brenda H. Collier
Chair
Texas Board of Private Investigators and Private Security Agencies
P.O. Box 13509, Capitol Station
Austin, Texas 78711

Opinion No. DM-68

Re: Whether article 4413(29bb), V.T.C.S., authorizes the Texas Board of Private Investigators and Private Security Agencies to bring disciplinary proceedings against a licensee, registrant, or commissioned 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).[1] 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 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 proof:

(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), § 11B(a); see also id. § 11B(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), § 11B(a)(1).

If the board initiates a disciplinary proceeding against a person pursuant to subsection (a) of section 11B, that person is entitled to a hearing before the board governed by the Administrative Procedure and Texas Register Act. Id. § 11B(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, § 18(c); see also Texas 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. §§ 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. § 423.1 (defining "[l]icense" 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 Bd. 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 Util. Comm'n of Texas, 805 S.W.2d 618, 620 (Tex. App.--Austin 1991, no writ) (additional restriction invalid since not part of statute's specific restrictions on user); see also Bloom v. Texas State 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 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 notice and hearing, revoke or suspend that person's license, registration, or commission as provided by section 11B of the act.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE 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

[1] The act authorizes the board to issue licenses, registrations, and security officer commissions. See, e.g., V.T.C.S. art. 4413(29bb), §§ 13-15, 19-20, 32-33. A "license" authorizes an individual or entity to perform services as an investigation company or security services contractor. Id. § 2(14), (17). A "registration" is a permit issued to an individual authorizing the performance of various investigative and security services. Id. § 2(21), (22). A "security officer commission" authorizes a security officer to carry a firearm during the performance of his duties as a security officer. Id. § 2(14). Security officers who are registered but not commissioned may not carry firearms during the performance of their duties.

[2] Section 11B was added to the act in 1975. Acts 1975, 64th Leg., ch. 494, § 1, at 1318. 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, section 18 of act, and holding board had discretionary authority to issue license to convicted felon). The legislature made subsection (a) mandatory in 1981. Acts 1981, 67th Leg., ch. 773, § 9, at 2900.