Can someone with a sealed criminal record in Texas voluntarily let a federal background check see it anyway?

TX AG Opinion GA-0255: Nondisclosure Can't Be Waived

Plain-English summary

The Bell County Attorney asked about a request his office received from the U.S. Office of Personnel Management (OPM), which was screening someone for federal employment. The applicant had signed an "Authorization for the Release of Information" trying to open up his own sealed criminal record, which was covered by a Government Code section 411.081(d) nondisclosure order tied to a deferred adjudication. The county attorney wanted to know whether the person could waive the order himself, and separately, what a records custodian should say when the public asks about a sealed record: "no record" or something closer to "no disclosable record."

The opinion concluded a person cannot waive a section 411.081(d) nondisclosure order; no Texas statute gives anyone that power, and the county attorney's authority to release the record to OPM had to come from somewhere else in the statute. That somewhere else turned out to be a separate provision letting criminal justice agencies disclose nondisclosure-protected records to certain listed categories of recipients, including noncriminal justice agencies that federal statute or executive order authorizes to receive criminal history information. Because OPM conducts background investigations of prospective federal employees under a specific executive order and several federal statutes, it fits that category regardless of the applicant's signed authorization, so Bell County could release the record to OPM on that independent basis. On the second question, the opinion found no statute directly on point but said it would be consistent with the nondisclosure order's purpose for a records custodian to simply tell an unauthorized requester that the agency has "no record."

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

Bell County and other Texas criminal justice agencies holding nondisclosure-protected records: The opinion concluded these agencies could release a section 411.081(d)-protected record to the U.S. Office of Personnel Management for a federal employment background check, based on OPM's own statutory and executive-order authority to receive criminal history information, not because the record's subject signed a release.

People whose criminal history is covered by a deferred-adjudication nondisclosure order: The opinion meant these individuals had no statutory power to personally waive the order and open their record to the general public, though the order did not stand in the way of disclosure to specific authorized recipients like OPM.

Records custodians responding to public information requests: The opinion suggested it would be consistent with the nondisclosure statute's purpose to respond to an unauthorized inquiry by saying the agency has "no record," rather than a response that might signal a sealed record exists.

Common questions

Can a person unlock their own sealed Texas criminal record by signing a release form?
No, according to this 2004 opinion. Texas law gives no statutory mechanism for a person to waive a Government Code section 411.081(d) nondisclosure order, so a signed authorization by itself does not open the record to the public.

How did a federal background check agency get access to a sealed Texas record then?
The opinion found the U.S. Office of Personnel Management fit within a separate statutory category, a noncriminal justice agency authorized by federal statute and executive order to receive criminal history record information, which section 411.083(b) allows a criminal justice agency to disclose to regardless of any waiver by the record's subject.

What should a records custodian say when someone without authorization asks about a sealed criminal record?
The opinion found no statute directly addressing this, but concluded it would be consistent with the nondisclosure order's purpose for the custodian to simply respond that the agency has "no record," while also consulting the specific court order for any additional guidance it provides.

Background and statutory framework

Government Code chapter 411, subchapter F governs criminal history record information maintained by the Department of Public Safety and other criminal justice agencies. Section 411.081(d) lets a person placed on deferred adjudication for certain offenses petition a court for a nondisclosure order, which then bars criminal justice agencies from disclosing to the public the criminal history record information related to that offense. Once issued, the clerk sends the order to DPS, which in turn notifies law enforcement agencies, courts, prosecutors, and other entities likely to hold the covered records. Separately, Public Information Act section 552.142 excepts nondisclosure-protected information from the general rule that public information is available to the public, while letting the record's subject deny the underlying arrest and prosecution occurred, unless the information is later used against the person in a criminal proceeding.

Bell County received an inquiry from OPM about an individual seeking federal employment, accompanied by a signed authorization from the applicant releasing his information. The county attorney's underlying concern was whether that signed authorization, functioning as a waiver, could open the sealed record. The opinion found no Texas statute authorizing a person to waive the nondisclosure order and concluded section 411.083(b)(3), which lets the record's subject access his own information and share it as he chooses, does not extend to authorizing the custodian to release the record more broadly on the subject's say-so.

The opinion instead grounded disclosure in section 411.083(b)(2), which lets a criminal justice agency disclose nondisclosure-protected information to a noncriminal justice agency that federal statute or executive order authorizes to receive criminal history record information. It found OPM squarely within that category: OPM conducts background investigations of prospective federal employees under Executive Order 10,450 and several federal statutes governing federal personnel management and eligibility for sensitive positions, so the agency could lawfully receive the record independent of any waiver. On the separate question of how to respond to an unauthorized public inquiry, the opinion found the Public Information Act's "deny the occurrence" provision applies to the record's subject, not to the custodian, and that no statute specifically addresses a custodian's response to an outside requester, but concluded that answering "no record" would be consistent with the nondisclosure order's purpose.

Citations

Statutes:

• TEX. GOV'T CODE ANN. § 411.081(d) (Vernon Supp. 2004-05)
• TEX. GOV'T CODE ANN. § 411.081(a)(2) (Vernon Supp. 2004-05)
• TEX. GOV'T CODE ANN. § 411.081(g)
• TEX. GOV'T CODE ANN. § 411.082(2) (Vernon 1998)
• TEX. GOV'T CODE ANN. § 411.082(3) (Vernon 1998)
• TEX. GOV'T CODE ANN. § 411.083(b)
• TEX. GOV'T CODE ANN. § 411.083(b)(1), (2), (3)
• TEX. GOV'T CODE ANN. § 552.021
• TEX. GOV'T CODE ANN. § 552.142(a) (Vernon Supp. 2004-05)
• TEX. GOV'T CODE ANN. § 552.142(b) (Vernon Supp. 2004-05)
• 5 U.S.C. §§ 1101-1105 (2000)
• 5 U.S.C. § 1104 (2000)
• 5 U.S.C. § 1304 (2000)
• 5 U.S.C. § 3301 (2000)
• 5 U.S.C. § 9101 (2000)
• 5 C.F.R. pts. 731, 732, 736 (2004)
• Exec. Order No. 10,450, § 3, 18 Fed. Reg. 2489 (Apr. 27, 1953)
• 5 U.S.C. § 7311 (2000)

Cases:

• Mittleman v. Office of Pers. Mgmt., 76 F.3d 1240 (D.C. Cir. 1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0255
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0255.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 27, 2004

The Honorable Richard J. Miller
Bell County Attorney
Post Office Box 1127
Belton, Texas 76513

Opinion No. GA-0255

Re: Whether a person may waive the prohibition on public access to the person's criminal history information that is subject to a nondisclosure order (RQ-0209-GA)

Dear Mr. Miller:

You request an interpretation of Government Code section 411.081(d), which provides for the nondisclosure of certain criminal history information. You first ask:

May a person affirmatively waive the prohibition on public access to his or her criminal history information that is subject to an order of nondisclosure?[1]

You also ask how the custodian of records should respond to an inquiry for criminal history information found in documents subject to a nondisclosure order issued under section 411.081(d), that is, whether section 411.081 permits a law enforcement agency to state that it has "no disclosable record" to a person not authorized to receive the information, instead of stating that it has "no record." Request Letter, supra note 1, at 1.

You state that Bell County recently received an inquiry from the United States Office of Personnel Management ("OPM"), 5 U.S.C. §§ 1101-1105 (2000), concerning an individual who was seeking federal employment. See Request Letter, supra note 1, at 1. The communication included an "Authorization for the Release of Information" signed by the individual authorizing access to the individual's criminal history information. See id. The criminal history information, however, is subject to a nondisclosure order issued under section 411.081(d) of the Government Code. See TEX. GOV'T CODE ANN. § 411.081(d) (Vernon Supp. 2004-05).

Government Code chapter 411 establishes the Department of Public Safety ("DPS") and defines its duties. Subchapter F, which includes section 411.081, applies to criminal history record information. See id. § 411.082(2) (Vernon 1998) (criminal history record information "means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions"). Section 411.081(d) authorizes a person placed on deferred adjudication for certain offenses to petition the court "for an order of nondisclosure," which would prohibit "criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication." Id. § 411.081(d) (Vernon Supp. 2004-05). Section 411.082 defines "criminal justice agency" for purposes of Subchapter F as "a federal or state agency" engaged in administering criminal justice under a statute or executive order or "a nongovernmental railroad or campus police department that has obtained an originating agency identifier from the Federal Bureau of Investigation." Id. § 411.082(3) (Vernon 1998). But see id. § 411.081(a)(2) (Vernon Supp. 2004-05) (referring to "'police blotters' maintained by a criminal justice agency"). The section 411.082 definition of "criminal justice agency" does not apply to section 411.081(d), which provides for nondisclosure orders "[n]otwithstanding any other provision of this subchapter." Id. § 411.081(d). A "criminal justice agency" within section 411.081(d) includes a local criminal justice agency.

Information subject to a section 411.081(d) nondisclosure order is "excepted from the requirements of [Government Code] Section 552.021," which provides that "[p]ublic information is available to the public." Id. § 552.142(a) (Vernon Supp. 2004-05); see also id. § 552.021. The person who is the subject of the order "may deny the occurrence of the arrest and prosecution to which the information relates and the exception of the information under this section, unless the information is being used against the person in a subsequent criminal proceeding." Id. § 552.142(b). When a nondisclosure order is issued, "the clerk of the court shall send a copy of the order" to the DPS Crime Records Service, and DPS "shall send a copy of the order . . . to all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order." Id. § 411.081(g).

The information may be disclosed in limited situations, however. Section 411.081(d) provides that "[a] criminal justice agency may disclose criminal history record information that is the subject of the order to an individual or agency described by Section 411.083(b)(1), (2) or (3)." Id. § 411.081(d). Thus, a county criminal justice agency that maintains criminal history record information subject to a section 411.081(d) nondisclosure order may disclose the information to the following individuals or agencies:

(1) criminal justice agencies;

(2) noncriminal justice agencies authorized by federal statute or executive order or by state statute to receive criminal history record information;

(3) the person who is the subject of the criminal history record information.

. . .

Id. § 411.083(b).

Section 411.083(b)(3) provides the individual who is the subject of the information with access to it, and he may disclose it to anyone he chooses. However, no provision authorizes the custodian to release the criminal history record information solely because the subject of the records has attempted to waive the court order. See id. § 411.081(d) (order prohibits criminal justice agency from disclosing the criminal history record information to the public). We find no Texas law authorizing an individual to waive the prohibition on public access to his criminal history information that is subject to a nondisclosure order.

Bell County, however, received the "Authorization for Release of Information" in conjunction with an inquiry from OPM. Section 411.083(b)(2) is relevant to releasing the information in this case. OPM is authorized to perform background investigations of prospective federal employees to ensure that applicants have not broken the law or engaged in other conduct making them ineligible for federal employment. See Mittleman v. Office of Pers. Mgmt., 76 F.3d 1240, 1243 (D.C. Cir. 1996); see also 5 U.S.C. §§ 1104 (2000) (president may delegate personnel management functions to OPM); 1304 (investigations to be conducted by OPM); 3301 (president may prescribe regulations for admission of individuals into civil service); 5 C.F.R. pts. 731, 732, 736 (2004) (authorizing OPM to investigate applicants for federal employment). OPM is subject to Executive Order Number 10,450, which provides that "[t]he appointment of each civilian officer or employee in any department or agency of the Government shall be made subject to investigation." Exec. Order No. 10,450, § 3, 18 Fed. Reg. 2489 (Apr. 27, 1953), reprinted as amended in 5 U.S.C. § 7311 (2000). While the scope of the investigation depends on the relation of the employment to national security, "in no event shall the investigation include less than a national agency check (including a check of the fingerprint files of the Federal Bureau of Investigation), and written inquiries to appropriate local law enforcement agencies." Id.; see also 5 U.S.C. § 9101 (2000) (giving OPM a right to criminal history information of state and local criminal justice agencies to determine whether a person may be eligible for access to classified information, be assigned to sensitive national security duties, or continue to be assigned to sensitive national security duties).

OPM is an agency authorized by federal statute and executive order to receive criminal history record information, and it is therefore within section 411.083(b)(2). Accordingly, a Bell County criminal justice agency may release to OPM criminal history record information that is subject to a nondisclosure order issued under section 411.081(d).

You also ask how the custodian of records should respond to an inquiry for criminal history information found in documents subject to a nondisclosure order, that is, whether section 411.081 permits a law enforcement agency to state that it has "no disclosable record" to a person not authorized to receive the information, instead of stating that it has "no record." Request Letter, supra note 1, at 1. The Public Information Act provides in Government Code section 552.142 that the person who is the subject of the nondisclosure order "may deny the occurrence of the arrest and prosecution to which the information relates and the exception of the information under this section, unless the information is being used against the person in a subsequent criminal proceeding." TEX. GOV'T CODE ANN. § 552.142(b) (Vernon Supp. 2004-05).

No analogous provision addresses a law enforcement agency's response when a member of the public requests access to a record subject to a section 411.081(d) nondisclosure order. However, it would be consistent with the purpose of section 411.081(d) for the law enforcement agency personnel to say that the agency has "no record" in response to the inquiry. The law enforcement agency should also consult the court order for any guidance it may give.

SUMMARY

Government Code section 411.081(d) provides for an order prohibiting criminal justice agencies from publicly disclosing criminal history record information related to the offense giving rise to a deferred adjudication, subject to statutory exceptions. Although an individual whose information is subject to the nondisclosure order does not have statutory authority to waive the order, information subject to the order may be disclosed to certain entities, including a non-criminal justice agency authorized by federal statute or executive order or by state statute to receive criminal history record information, such as the United States Office of Personnel Management.

If a law enforcement agency receives a request for information subject to a section 411.081(d) nondisclosure order from a person who is not authorized to receive the information, the agency may inform the person that it has "no record."

Very truly yours,

Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney General (Apr. 8, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].