Attorney General Opinion GA-0680

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 is subjectto anondisclosure orderunder 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 whether the Department may 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 ofPublic 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, CommissionerofInsurance, Texas DepartmentofInsurance, 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 ofa 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 questionrequires us to construe section411.081(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 or regulatory 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 of society and the defendant will be served, the judge may, after receiving a plea ofguilty or plea ofnolo contendere, hearing the evidence, and fmding that it substantiates the defendant's guilt, defer further proceedings without 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 convictionfor the 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 ofentities 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 twenty- four noncriminaljustice 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 ofa nondisclosure order. Moreover, section 411.081(d) is an independentprovision that applies, by its plain language, notwithstanding any otherprovision in subchapterF. TEX. GOV'T CODEANN. §411.081(d) (Vernon Supp. 2008); see also Leland, 257 S.W.3d at 206 ("Ifthe statute's language 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 411.106 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 criminaljustice 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 of its 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