ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 6, 2008

Mr. Mike Geeslin

Commissioner ofInsurance

Texas Department ofInsurance

Post Office Box 149104

Austin, Texas 78714-9104

Dear Commissioner Geeslin:

Opinion No. GA-0680

Re: Whether the Texas Department of Insurance

may access criminal history record information that

issubjectto a nondisclosure order under Government

Code section 411.081(d) (RQ-0713-GA)

Government Code section 411.081 (d) authorizes a person who has successfully completed

a deferred adjudication community supervision for an offense to petition a court for an order

prohibiting the disclosure of criminal history record information ("CRRI") related to the offense

giving rise to the deferred adjudication. See TEX. GOV'T CODE ANN. § 411.081 (d) (Vernon Supp.

2008); see also id §§ 411.081(t) (describing "deferred adjudication community supervision"),

.082(2) (defining criminal history record information). Ifthe court issues the nondisclosure order,

a criminal justice agency may disclose CRRI subject to the order only to other criminal justice

agencies and entities specified in the statute. See id You inform us that the Texas Department of

Insurance (the "Department") generally obtains CRRI as part oflicensing individuals or entities to

engage in the business ofinsurance in the state. 1 You ask whetherthe Departmentmay access CRRI

that is subject to a section 411.081 (d) nondisclosure order. Request Letter, supra note 1, at 1-2.

I. Legal Background

Chapter 411, subchapter F ofthe Government Code generally regulates the use, access, and

dissemination ofCRRI maintained by the Texas Department of Public Safety ("DPS"). See TEX.

GOV'T CODE ANN. §§ 411.081-.1407 (Vernon 2005 & Supp. 2008). Section 411.083(a) provides

that CRRI maintained by the DPS is confidential and may not be disseminated by the DPS except

as provided by subchapter F. Id. § 411.083(a) (Vernon Supp. 2008). Section411.083(b) directs the

DPS to provide such information to, among others, "noncriminal justice agencies authorized by

federal statute or executive order or by state statute to receive [CRRI]." Id. § 411.083(b)(2). Under

section 411.106, the Department "for good cause shown is entitled to obtain from" the DPS the

1See Letterfrom Mike Geeslin, Commissioner ofInsurance, Texas Department ofInsurance, to Honorable Greg

Abbott, Attorney General of Texas, at 1 (May 8, 2008) (on file with the Opinion Committee, also available at

http://www.texasattorneygenera1.gov) [hereinafter Request Letter].
Mr. Mike Geeslin - Page 2 (GA-0680)

CRRI relating to a person that is (1) an applicant for a license or other authorization from the

Department to engage in an activity regulated by the Insurance Code or (2) a corporate officer of a

Department-regulated insurance company. Id. § 411.106(a) (Vernon 2005).

As you note, however, section 411.081(d) restricts the access granted to the Department

under sections 411.083 and 411.106. See Request Letter, supra note 1, at 2. Section 411.081(d)

provides in relevant part that:

Notwithstanding any other provision of this subchapter [F], if a

person is placed on deferred adjudication community supervision

under Section 5, Article 42.12, Code of Criminal Procedure,

subsequently receives a discharge and dismissal under Section 5(c),

Article 42.12,2 and satisfies the requirements of Subsection (e), the

person may petition the court ... for an order ofnondisclosure under

this subsection . . .. After notice to the state and a hearing . . . , the

court shall issue an order prohibiting criminal justice agencies from

disclosing to the public criminal history record information related to

the offense giving rise to the deferred adjudication. A criminaljustice

agency may disclose criminal history record information that is the

subject of the order only to other criminal justice agencies, for

criminaljustice orregulatory licensingpurposes, an agency or entity

listed in Subsection (i), or the person who is the subject ofthe order.

TEX. GOV'T CODE ANN. § 411.081(d) (Vernon Supp. 2008) (emphasis and footnote added).

II. Analysis

Your question requires us to construe section 411.081(d) consistentlywith its plain language.

See Lelandv. Brandal, 257 S.W.3d204, 206 (Tex. 2008) (stating that a court looks first to a statute's

language to determine legislative intent). The statute, read in a way that makes grammatical sense

ofthe language following the .preposition "to," permits the DPS or another criminal justice agency

to disclose CRRI that is the subject ofthe nondisclosure order to only three categories ofpersons:

(1 )"to" other criminaljustice agencies, for criminaljustice orregulatory licensing purposes, (2) "to"

an agency or entity listed in subsection (i) of section 411.081, or (3) "to" the person who is the

subject of the order. TEx. GOV'T CODE ANN. § 411.081(d) (Vernon Supp. 2008); see also id

§ 311.011(a) (Vernon 2005) (language to be construed according to rules ofgrammar and common

usage).

2Texas Code ofCriminal Procedure article 42.12, section 5(a) provides that "when in the judge's opinion the

best interest ofsociety and the defendant will be served, the judge may, after receiving a plea ofguilty or plea ofnolo

contendere, hearing the evidence, and fmding that itsubstantiatesthe defendant's guilt, deferfurther proceedingswithout

entering an adjudication ofguilt, and place the defendant on community supervision." TEX.·CODE CRIM. PROC. ANN.

art. 42.12, § 5(a) (Vernon Supp. 2008) (emphasis added). Under section 5(c), "[o]n expiration of a community

supervision period ... , ifthe judge has not proceeded to adjudication ofguilt, the judge shall dismiss the proceedings

against the defendant and discharge him." Id art. 42.12, § 5(c). Except for the purposes ofthe imposition ofrepeat

felony penalties under section 12.42(g), Penal Code, a dismissal and discharge "may not be deemed a convictionforthe

purposes ofdisqualifications or disabilities imposed by law for conviction ofan offense." Id (emphasis added).
Mr. Mike Geeslin - Page 3 (GA-0680)

For purposes of this opinion, we presume that the Department "is not a criminal justice

agency.3 Thus, because the Department is not a person that will be the subject of a nondisclosure

order, only the second category of entities to which the information may be disclosed under section

411.081(d) is at issue here: an agency or entity listed in subsection (i) ofthe statute. Subsection (i)

provides that "[a] criminal justice agency may disclose [CHRI] that is the subject of an order of

nondisclosure to the following noncriminal justice agencies or entities only" and then lists twentyfour noncriminal justice entities by name orgeneral category. TEx. GOV'T CODE ANN. §411.081(i)

(Vernon Supp. 2008) (emphasis added).

By specifying and limiting it to the twenty-four entities to which the CHRI subject to a

nondisclosure order may be disclosed, the statute denies access to any other entities. Cj Tex. Indus.

Accident Bd. v. Indus. Found., 526 S.W.2d 211, 218 (Tex. Civ. App.-Beaumont 1975) ("By

specifically naming the sixteen exceptions from disclosure, the Legislature in effect expressed its

intention to make all other records discoverable."), aff'd, 540 S.W.2d 668 (Tex. 1976); see also

McCallav. State Farm Mut. Auto. Ins. Co., 704 S.W.2d 518,519 (Tex. App.-Houston [14thDist.]

1986, writ refd n.r.e.) ("When specific exclusions or exceptions to a statute are stated by the

Legislature, the intent is usually clear that no other shall apply."). Thus, subsection 411.081(d) in

conjunction with subsection (i) does not permit the Department access to CHRI that is the subject

of a nondisclosure order.

Moreover, section 411.081 (d) is an independentprovision that applies, by its plain language,

notwithstanding any other provision in subchapter F. TEX. GOV'TCODEANN. §411.081 (d) (Vernon

Supp. 2008); see also Leland, 257 S.W.3d at 206 ("Ifthe statute'slanguage is unambiguous, its plain

meaning will prevail."). Subchapter F includes sections 411.083 and, in particular, 411.106

permitting the Department access to CHRI maintained by the DPS. See TEX. GOV'T CODE ANN

§ 411.106 (Vernon 2005). Accordingly, section 411.081 (d) prevails over sections 411.083 and

411.1 06 with respect to CHRI subject to a nondisclosure order.4

Presuming that the Department is not a criminal justice agency, we conclude that the

Department may not access CHRI that is subject to a nondisclosure order under section 411.081 (d)

because the Department is not among the entities in subsection (i) to which such information may

be disclosed.

3Your letter assumes that the Department is not a criminal justice agency. See Request Letter, supra note 1, at

1-2; see also TEX. GOV'T CODE ANN. § 411.082(3)(A)(Vernon 2005) (defming "criminaljustice agency" as "a federal

or state ageJ)cy that is engaged in the administration of criminal justice under a statute or executive order and that

allocates a substantial portion ofits annual budget to the administration of criminal justice" (emphasis added)).

4We note that Insurance Code section 4005.101(b), which authorizes the Department to deny a license or

discipline a license holder ifthe license applicant or holder has "engaged in fraudulent or dishonest acts or practices"

or "been convicted of a felony," also does not prevail over section 411.081(d). See TEX. INS. CODE ANN. §

4005.101 (b)(5), (8) (Vernon 2008). Insurance Code section 4005.101(b) does not require or authorize the Department

to access CHRI made unavailable pursuant to Government Code section 411.081(d) or authorize the DPS or another

criminal justice agency to disclose such information to the Department. See id
Mr. Mike Geeslin - Page 4 (GA-0680)

SUMMARY

Presuming that the Texas Department of Insurance is not a

criminal justice agency for purposes of Government Code section

411.081(d), the Department may not access criminal history record

information that is subject to a nondisclosure court order under that

section because the Department is not listed in subsection (i) among

the entities to which such information may be disclosed.

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Sheela Rai

Assistant Attorney General, Opinion Committee