                                           GREG
                                                 o
                              ATTORNEY GENERAL OF TEXAS
                                                      ABBOTT




                                                Apri123,2012



Katherine A. Thomas, MN, RN                           Opinion No. GA-0919
Executi ve Director
Texas Board of Nursing                                Re: Whether the receipt of a nondisclosure order
333 Guadalupe Street, Suite 3-460                     requires the Board of Nursing to redact information
Austin, Texas 78701                                   relating to a licensee's criminal history record
                                                      (RQ-0997-GA)

Dear Ms. Thomas:

        On behalf of the Texas Board of Nursing ("Board"), you request an opinion about what
information the Board may include in a disciplinary order against a Board-licensed nurse. l
Specifically, you want to know whether a court order issued under section 411.081 of the
Government Code prohibiting the disclosure of a Board licensee's criminal history would prevent
the Board from citing the criminal history in a disciplinary order against the licensee. [d. You also
ask whether a nondisclosure order issued under section 411.081 would "require the Board to 'seal'
or attempt to redact the applicable text from public records often agreed to by the licensee upon
receipt of a non-disclosure order." [d. at 2.

        Section 411.081 allows a person placed on deferred adjudication to seek a nondisclosure
order. TEX. GOV'TCODEANN. § 411.081(d) (West Supp. 2011). A nondisclosure order prohibits
"criminal justice agencies from disclosing to the public criminal history record information related
to the offense giving rise to the deferred adjudication." [d. If a person obtains a nondisclosure order
under section 411.081, an agency that receives the person's criminal history record information
"shall seal any criminal history record information maintained by the individual or entity that is the
subject of the order." [d. § 411.081(g-lb) (applying to "an individual or entity described by
Subsection (g-l)( 1)"). See also id. § 411.081 (g-l)( 1) (referring to "agencies or other entities of this
state"). See also TEX. OCC. CODE ANN. § 301.004(5) (West 2012) (indicating that the Board is a
state agency).

       If section 411.081' s restrictions applied to criminal history record information contained in
the Board's disciplinary orders, the Board would be obligated to adjust its orders to ensure that
information subject to a nondisclosure order is not disclosed to the public. However, the statute


         ILetter from Katherine A. Thomas, MN, RN, Exec. Dir., Tex. Bd. of Nursing, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1-2 (Sept. 16, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").
Ms. Katherine A. Thomas, MN, RN - Page 2                 (GA-0919)




specifically provides that section 411.081 "does not apply to criminal history record information that
is contained in ... public judicial, administrative, or legislative proceedings [or] published judicial
or administrative opinions." TEX. GOV'T CODE ANN. § 411.081(a)(3), (5) (West Supp. 2011)
(internal notations omitted). You ask "[p]articularly" about criminal history record information
contained in a "disciplinary order" against a licensee of the Board. Request Letter at 1. Because the
Board publishes its disciplinary orders after conducting public administrative proceedings, a
court would likely conclude that the Board's disciplinary orders constitute "published . . .
administrative opinions" that arise from "public ... administrative ... proceedings.,,2 See
http://www.bon.texas.gov/disciplinaryaction (Texas Board of Nursing Disciplinary Action pages);
see also 22 TEX. ADMIN. CODE § 213.23(h) (2011) (requiring the Board to mail a copy of the final
disciplinary order to all known parties and the nurse's last known employer). As a result, criminal
history record information contained in the Board's disciplinary orders likely is not subject to a
section 411.081 nondisclosure order. Accordingly, a court would likely find that section 411.081
of the Government Code does not require the Board to adjust its disciplinary orders to avoid
disclosure of criminal history record information that is the subject of a nondisclosure order issued
under that section.




        2TEX. GOV'T CODE ANN.   § 411.081(a)(3), (5) (West Supp. 2011).
Ms. Katherine A. Thomas, MN, RN - Page 3           (GA-0919)



                                       SUMMARY

                       A court would likely find that section 411.081 of the
               Government Code does not require the Texas Board of Nursing to
               adjust its disciplinary orders to avoid disclosure of criminal history
               record information that is the subject of a nondisclosure order issued
               under that section.




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee
