                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                             November 6, 2008



Mr. Mike Geeslin                                     Opinion No. GA-0680
Commissioner of Insurance
Texas Department of Insurance                        Re: Whether the Texas Department of Insurance
Post Office Box 149104                               may access criminal history record information that
Austin, Texas 78714-9104                             is subject to a nondisclosure order under Government
                                                     Code section 411.081(d) (RQ-0713-GA)

Dear Commissioner Geeslin:

         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). If the 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 of licensing 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 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 Letter from 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 of nondisclosure 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 criminal justice
                   agency may disclose criminal history record information that is the
                   subject of the order only to other criminal justice agencies, for
                   criminaljustice or regulatory 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) consistently with 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
of the language following the .preposition "to," permits the DPS or another criminal justice agency
to disclose CRRI that is the subject of the nondisclosure order to only three categories of persons:
(1 )"to" other criminal justice agencies, for criminal justice 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 of grammar and common
usage).


          2Texas Code of Criminal 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 of guilty or plea of nolo
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 ... , if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings
against the defendant and discharge him." Id art. 42.12, § 5(c). Except for the purposes of the imposition of repeat
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 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 twenty-
four 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 independent provision that applies, by its plain language,
notwithstanding any other provision in subchapter F. TEX. GOV'T CODE ANN. § 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
411.1 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 "criminal justice 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 if the 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 4005.10 1(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
