How much can a Texas court clerk charge to file a nondisclosure petition after deferred adjudication?

TX AG Opinion GA-0330: What fee could a Texas clerk charge to file an order-of-nondisclosure petition?

Plain-English summary

An order of nondisclosure lets someone who successfully completed deferred adjudication community supervision ask a court to seal the criminal history record information tied to that offense, so it is kept from public disclosure. The procedure lives in section 411.081(d)-(h) of the Government Code. Section 411.081(d) said the petition could be filed "on payment of a $28 fee to the clerk of the court," but it did not say whether the clerk could also charge anything else. Court clerks were handling this inconsistently: some charged only the $28, while others treated the petition as a new civil case and added all the usual civil filing fees on top. The Office of Court Administration, which advises clerks, asked the Attorney General to settle the question, and also asked which court should hear the petition when the court that ordered the deferred adjudication has only criminal jurisdiction.

On the fee, the Attorney General read the statute by its plain language. Because section 411.081(d) named a single $28 fee and the legislature knew how to bar additional fees when it wanted to (the opinion pointed to alcoholic-beverage and family-law statutes that say "no other fee" may be charged), the opinion concluded that a clerk could not condition filing on any fee beyond the $28. The Office of Court Administration had pointed to a House Journal "statement of legislative intent" saying clerks should also charge regular civil filing fees, but the opinion gave it little weight: that statement was not discussed in floor debate, and the bill analysis and fiscal note for the enrolling bill (Senate Bill 1477) assumed only the $28 fee. The opinion found no "extraordinary circumstances" that would justify reading the unambiguous statute against its plain words.

The opinion was careful to flag a coming change. During the 2005 session the legislature passed House Bill 3093, which, if signed, would amend section 411.081(d) effective September 1, 2005, to let a clerk collect the $28 fee plus "any other fee that generally applies to the filing of a civil petition." So the $28-only answer described the law only as it then stood.

On the jurisdiction question, the opinion concluded that the statute itself settles which court hears the petition: section 411.081(d) directs the petition to the court that originally ordered the deferred adjudication, and that court has jurisdiction to hear it under the statute regardless of whether it otherwise has general civil jurisdiction. A court's authority in a special statutory proceeding is set by the terms of the statute.

Currency note

This opinion was issued in 2005. 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 2005)

Court clerks: The opinion concluded that, under section 411.081(d) as then written, a clerk could not require any fee beyond the named $28 to file a nondisclosure petition. The opinion also told clerks that House Bill 3093, if approved, would change this on September 1, 2005, by adding the fees that generally apply to a civil petition.

People seeking an order of nondisclosure: The opinion meant that, at the time, the cost to file was the single $28 statutory fee, not $28 plus a full set of civil filing fees, for someone who had completed deferred adjudication and met the statute's waiting periods.

Courts with only criminal jurisdiction: The opinion concluded that a court which ordered deferred adjudication has jurisdiction to hear the nondisclosure petition under section 411.081(d) even if it lacks general civil jurisdiction, because jurisdiction in a special statutory proceeding follows the terms of the statute.

The Office of Court Administration: The opinion answered the OCA's request for guidance so it could advise the clerks who had been applying the fee inconsistently.

Common questions

How much did it cost to file an order-of-nondisclosure petition?
At the time of the opinion, the statute set a single $28 fee, and the opinion concluded a clerk could not require anything beyond that to file the petition.

Could a clerk also charge the regular civil filing fees on top of the $28?
No, not under section 411.081(d) as it then read. The opinion concluded the plain language authorized only the $28 fee and did not allow additional civil filing fees, either at filing or later.

Did that answer change?
Yes. The opinion noted that House Bill 3093, effective September 1, 2005, would let a clerk collect the $28 fee plus any other fee that generally applies to filing a civil petition.

Why didn't the "statement of legislative intent" in the House Journal control?
The opinion explained that the statement was not discussed in floor debate, and the bill analysis and fiscal note for Senate Bill 1477 assumed only the $28 fee. The opinion found no "extraordinary circumstances" to read the unambiguous statute against its plain language.

Which court hears the petition?
The opinion concluded that section 411.081(d) sends the petition to the court that originally ordered the deferred adjudication, and that court has jurisdiction to hear it under the statute even if it otherwise has only criminal jurisdiction.

What does an order of nondisclosure actually do?
The opinion described it as an order prohibiting criminal justice agencies from disclosing to the public the criminal history record information related to the offense that led to the deferred adjudication, with disclosure still allowed to law enforcement and certain agencies.

Background and statutory framework

Section 411.081 sits in chapter 411, subchapter F of the Government Code, which governs the use, access, and dissemination of criminal history record information. The legislature added the nondisclosure procedure in section 411.081(d)-(h) in 2003 through Senate Bill 1477, which also amended chapter 552 (the Public Information Act) to exempt records under a nondisclosure order, to let a person deny the underlying arrest and prosecution except in later criminal proceedings (§ 552.142), and to impose a civil penalty on private entities that disseminate sealed records for compensation (§ 552.1425).

The opinion applied standard statutory-construction principles: courts look first to the statute's plain and common meaning and generally interpret an unambiguous statute as written (McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003); City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)), departing from the text only in "exceptional circumstances" (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)). Because section 411.081(d) named only the $28 fee, and because clerks must collect any original-civil-petition fees at the time of filing under separate statutes, the opinion concluded no additional fee could be tacked on. For the jurisdiction question, the opinion relied on the rule that a court's authority in a special statutory proceeding is fixed by the statute's terms (Ex parte Myers, 24 S.W.3d 477 (Tex. App.-Texarkana 2000, no pet.)), so the court named in section 411.081(d) can hear the petition whatever its ordinary civil jurisdiction.

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 411.081(d)-(h), 411.081-.1405 (Vernon 2005)
• Tex. Gov't Code Ann. §§ 51.317(a), (b)(4), 72.023(c), 552.142(a), (b), 552.1425, 25.0633(c), 25.0634(b), 25.2223(a) (Vernon 2004 & 2005)
• Tex. Alco. Bev. Code Ann. § 61.31(c) (Vernon Supp. 2004-05)
• Tex. Fam. Code Ann. § 110.002(b) (Vernon Supp. 2004-05)
• Tex. Loc. Gov't Code Ann. §§ 118.053(a)-(b), 291.008 (Vernon 1999)

Cases:

• McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003)
• In re Canales, 52 S.W.3d 698, 702 (Tex. 2001)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999)
• Ex parte Myers, 24 S.W.3d 477, 480 (Tex. App.-Texarkana 2000, no pet.)

Other authorities:

• Act of May 31, 2003, 78th Leg., R.S., ch. 1236, § 4, 2003 Tex. Gen. Laws 3499, 3500-01 (Senate Bill 1477)
• Act of May 12, 2005, 79th Leg., R.S., H.B. 413, § 3
• Act of May 27, 2005, 79th Leg., R.S., H.B. 3093, § 3
• H.J. of Tex., 78th Leg., R.S., 4586 (2003)
• Senate Comm. on Crim. Justice, Bill Analysis, Tex. S.B. 1477, 78th Leg., R.S. (2003)
• Fiscal Note, Tex. S.B. 1477, 78th Leg., R.S. (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0330
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0330.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

June 10, 2005

Mr. Carl V. Reynolds
Administrative Director
Office of Court Administration
205 West 14th Street, Suite 600
Austin, Texas 78711-2066

Opinion No. GA-0330

Re: Proper fee for filing a petition for an order of nondisclosure of certain criminal records regarding persons placed on deferred adjudication community supervision, and the authority of courts without general civil jurisdiction to entertain such a petition (RQ-0297-GA)

Dear Mr. Reynolds:

Your predecessor, Ms. Alicia G. Key, inquired about the proper fee for filing a petition for an order of nondisclosure of certain criminal records regarding persons placed on deferred adjudication community supervision and about the authority of courts without general civil jurisdiction to entertain such a petition.[1]

Your request largely concerns section 411.081(d)-(h) of the Government Code, which provides the procedure for obtaining an order of nondisclosure. See TEX. GOV'T CODE ANN. § 411.081(d)-(h) (Vernon 2005). After receiving your request, during the recent legislative session, House Bills 413 and 3093 passed both the House and Senate and will amend section 411.081. House Bill 413 has been signed by the Governor and will be effective September 1, 2005. See Act of May 12, 2005, 79th Leg., R.S., H.B. 413, § 3 (to be codified at TEX. GOV'T CODE ANN. § 411.081(g)-(g-1)). House Bill 3093 is enrolled and with the Governor's approval will also become effective September 1, 2005. See Act of May 27, 2005, 79th Leg., R.S., H.B. 3093, § 3 (to be codified at TEX. GOV'T CODE ANN. § 411.081(d), (g)-(g-2)). We will address your request first considering section 411.081 as it is currently written.

Section 411.081(d)-(h) of the Government Code allows persons who successfully complete deferred adjudication to petition a court for an order of nondisclosure of the person's criminal history record information about the offense that led to the deferred adjudication. TEX. GOV'T CODE ANN. § 411.081(d)-(h) (Vernon 2005). Under section 411.081(d), such a person may file the petition in the court that originally ordered deferred adjudication "on payment of a $28 fee to the clerk of the court." Id. § 411.081(d). As currently written, the statute does not specifically state whether any other fee may be assessed or collected.

One of the duties of the Director of the Office of Court Administration (the "OCA") is to consult with and assist court clerks. See id. § 72.023(c). Several clerks have turned to the OCA for advice about the fee they should charge for a petition of nondisclosure. Request Letter, supra note 1, at 1. Some have charged only the $28 fee expressly mentioned in section 411.081(d). Id. Others have treated the petition as an initial pleading in a civil proceeding, charging "all of the filing fees that are charged in a regular civil case" in addition to the $28 fee. Id. at 2. Your office's first question requires a construction of section 411.081(d) with respect to the proper fee for filing a petition for an order of nondisclosure. The primary goal of statutory construction is to ascertain and give effect to legislative intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). See In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). We look first to the statute's words, attempting to ascertain their plain and common meaning. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If a statute is unambiguous we generally interpret it according to its plain meaning. Id.

Section 411.081 is located in chapter 411, subchapter F of the Government Code, which generally regulates use, access, and dissemination of criminal history record information. See TEX. GOV'T CODE ANN. §§ 411.081-.1405 (Vernon 2005). The Legislature added section 411.081(d)-(h) to the Government Code in 2003 with the passage of Senate Bill 1477. Act of May 31, 2003, 78th Leg., R.S., ch. 1236, § 4, 2003 Tex. Gen. Laws 3499, 3500-01 ("Senate Bill 1477" or the "Act"). Legislative intent is determined by examining an act in its entirety. See City of San Antonio, 111 S.W.3d at 25. Accordingly, we review Senate Bill 1477's pertinent provisions, beginning with its addition of section 411.081(d)-(h) of the Government Code.

Section 411.081(d) provides that a person who was placed on deferred adjudication community supervision, has received a discharge and dismissal, and has satisfied certain other requirements may petition for an order of nondisclosure of certain records:

[Such a] person may petition the court that placed the defendant on deferred adjudication for an order of nondisclosure under this subsection. After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, 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 [for certain law enforcement and related purposes]. A person may petition the court for an order of nondisclosure on payment of a $28 fee to the clerk of the court. The payment may be made only on or after:

(1) the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor other than a misdemeanor described by Subdivision (2);

(2) the fifth anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication [involved certain misdemeanors]; or

(3) the 10th anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a felony.

TEX. GOV'T CODE ANN. § 411.081(d) (Vernon 2005).[2] Subsection (g) requires the clerk to send a copy of a nondisclosure order to the Department of Public Safety (the "DPS"). Id. § 411.081(g). The DPS then must send the order to various governmental entities related to law enforcement. Id. Under subsection (h), the clerk must report and remit the filing fee to the comptroller, who must deposit all fees in the general revenue fund. Id. § 411.081(h).

In Senate Bill 1477, the Seventy-eighth Legislature also amended chapter 552 of the Government Code to exempt records subject to an order of nondisclosure from the disclosure requirements of the Public Information Act. Id. § 552.142(a) (Vernon 2004). Additionally, persons receiving a nondisclosure order are permitted to deny their arrest and prosecution reflected in the records subject to the order except in subsequent criminal proceedings. Id. § 552.142(b). Private entities who use records subject to a nondisclosure order to compile or disseminate criminal history for compensation are liable to the state for a civil penalty. Id. § 552.1425.

Focusing specifically on the statute's provision for assessing a fee, section 411.081(d) does not expressly prohibit other fees, as the legislature has sometimes done in other statutes. Compare id. § 411.081(d) (Vernon 2005), with TEX. ALCO. BEV. CODE ANN. § 61.31(c) (Vernon Supp. 2004-05) (stating that an applicant for certain licenses shall pay a $5 hearing fee and "is liable for no other fee other than the annual license fee"), and TEX. FAM. CODE ANN. § 110.002(b) (Vernon Supp. 2004-05) (stating that clerk may collect $15 fee for filing certain suits, petitions or motions involving parent-child relationship, but "[n]o other filing fee may be collected or required" for such actions). Nevertheless, section 411.081(d) expressly states that the petition may be filed on payment of $28 to the clerk. TEX. GOV'T CODE ANN. § 411.081(d) (Vernon 2005). From the statute's plain language, a clerk may not condition filing the petition on the payment of any fee other than the $28 fee expressly mentioned in the statute.

Furthermore, while section 411.081(d) precludes a clerk from requiring additional fees before filing the petition, other statutes preclude a clerk from assessing original civil petition filing fees for collection at a later time. A clerk must collect the clerk's fee for filing an original petition at the time a suit or action is filed. Id. § 51.317(a) (fee for district clerk's services must be collected at the time a civil action or suit is filed); TEX. LOC. GOV'T CODE ANN. § 118.053(a)-(b) (Vernon 1999) (county clerk's fee for filing original action in a county civil court is due at the time the cause is filed). Other fees are also collected at the time a civil suit or action is filed. See, e.g., TEX. GOV'T CODE ANN. § 51.317(b)(4) (Vernon 2005) (records management and preservation fee); TEX. LOC. GOV'T CODE ANN. § 291.008 (Vernon 1999) (optional courthouse security fee in civil cases). These statutes, in conjunction with section 411.081(d), do not allow a clerk to assess filing fees in addition to the $28 fee either at the time of filing or later. Had the legislature intended to allow clerks to assess or collect other filing fees, it could have written section 411.081(d) to say so. We conclude that the plain language of section 411.081(d) does not authorize any fees for filing the petition other than the statute's $28 fee.

Generally we construe an unambiguous statute as written. McIntyre, 109 S.W.3d at 745. The Texas Supreme Court has indicated that only "exceptional circumstances" might warrant construing an unambiguous statute other than as written. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). The Request Letter directs our attention to an entry in the House Journal for the Seventy-eighth Legislative Session regarding fees charged for filing a petition for an order of nondisclosure:

STATEMENT OF LEGISLATIVE INTENT

A petition filed pursuant to the terms of this act should be filed as an ex parte petition on the civil docket of the court that originally granted the deferred adjudication. In addition to the $28.00 fee specified in the bill, the clerk should also assess the same fees that would otherwise apply to the filing of a civil petition.

Terry Keel, Chair
House Committee on Criminal Jurisprudence

H.J. of TEX., 78th Leg., R.S., 4586 (2003) (the "journal entry"). The journal entry clearly reflects the representative's understanding that the bill would authorize fees for filing an original petition in a civil matter in addition to the $28 fee. However, neither the journal entry nor its content was discussed during floor debates in the House on the date of the journal entry, nor were comparable statements made in subsequent Senate floor debates. See Debate on Tex. S.B. 1477 on the Floor of the House, 78th Leg., R.S. (May 28, 2003) (tape available from House Video/Audio Services); Debate on Tex. S.B. 1477 on the Floor of the Senate, 78th Leg., R.S. (May 31, 2003) (tape available from Senate Staff Services Office). In contrast to the journal entry, the bill analysis and the fiscal note issued for Senate Bill 1477 as enrolled both contemplate only the $28 fee. SENATE COMM. ON CRIM. JUSTICE, BILL ANALYSIS, Tex. S.B. 1477, 78th Leg., R.S. (2003) (stating that petition may be filed upon payment of $28 fee); FISCAL NOTE, Tex. S.B. 1477, 78th Leg., R.S. (2003) (mentioning only the $28 fee in assessing state and local fiscal impact). We do not believe that the legislative history of section 411.081(d) reveals "extraordinary circumstances" that would compel construing section 411.081(d) other than as written. See Fitzgerald, 996 S.W.2d at 865-66. As section 411.081(d) currently provides, a clerk may not condition the filing of a petition for an order of nondisclosure upon payment of a fee other than the $28 fee expressly authorized by the section.

However, as stated earlier, during the recent legislative session both houses passed House Bill 3093, which will revise section 411.081(d) provided it receives the Governor's approval. House Bill 3093 expressly authorizes a clerk to collect not only the $28 fee, but also "any other fee that generally applies to the filing of a civil petition." See Act of May 27, 2005, 79th Leg., R.S., H.B. 3093, § 3 (to be codified at TEX. GOV'T CODE ANN. § 411.081(d)). The effective date of House Bill 3093 is September 1, 2005. Id. § 6. Consequently, assuming House Bill 3093 receives the Governor's approval, as of September 1, 2005, a clerk may require payment of a $28 fee in addition to other fees generally applicable to the filing of a civil petition to file a petition for an order of nondisclosure.

Your office's second question about the proper court to entertain a petition for an order of nondisclosure is based on the presumption that section 411.081(d) proceedings might be classified as civil in nature. The statute states that the petition is to be filed in the court that ordered deferred adjudication originally. TEX. GOV'T CODE ANN. § 411.081(d) (Vernon 2005). However, a number of the courts that may order deferred adjudication have only criminal jurisdiction. See, e.g., id. §§ 25.0633(c) (Denton County Court at Law No. 1 does not have civil jurisdiction other than in juvenile matters), 25.0634(b) (Denton County Criminal Court does not have civil jurisdiction), 25.2223(a) (Tarrant County Criminal Court does not have civil jurisdiction) (Vernon 2004). Your office asks where the petition for an order of nondisclosure should be filed when the court that originally ordered deferred adjudication does not have general civil jurisdiction.

Regardless of whether the proceeding may have some civil attributes, section 411.081(d) expressly requires the court that originally ordered deferred adjudication to hear the petition and, if appropriate, issue the order for nondisclosure. Id. § 411.081(d) (Vernon 2005). Such a court necessarily has jurisdiction to entertain the person's petition for nondisclosure under section 411.081(d), regardless of the court's usual jurisdiction. See Ex parte Myers, 24 S.W.3d 477, 480 (Tex. App.-Texarkana 2000, no pet.) (trial court jurisdiction in special statutory proceedings is determined according to terms of the statute).

SUMMARY

Currently, a clerk may not condition the filing of a petition for an order of nondisclosure upon payment of a fee other than the $28 fee expressly authorized by section 411.081(d) of the Government Code. The court that placed a person on deferred adjudication community supervision has jurisdiction to entertain the person's petition for nondisclosure under section 411.081(d).

Very truly yours,

GREG ABBOTT
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

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Ms. Alicia G. Key, Administrative Director, Office of Court Administration, to Honorable Greg Abbott, Texas Attorney General (Nov. 30, 2004) (on file with Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter].

[2] But see Act of May 27, 2005, 79th Leg., R.S., H.B. 3093, § 3 (to be codified at TEX. GOV'T CODE ANN. § 411.081(d)) (Enrolled, awaiting Governor's approval).