Does the Texas Board of Nursing have to seal criminal history in a disciplinary order it already issued?

Plain-English summary

When a Texas court grants an "order of nondisclosure," it seals a person's criminal history record so that most agencies cannot share it. The Texas Board of Nursing, meanwhile, runs a disciplinary system that is mostly public: when it files formal charges against a nurse, or enters a final disciplinary order, those actions are open records and can refer to the nurse's criminal background. The Board's Executive Director asked the AG how those two systems fit together. Specifically, what does the Board have to do when someone's criminal history is sealed by a nondisclosure order, and does it have to seal or redact criminal history that already appears in a disciplinary order it issued before it learned of the court's order?

The AG worked through two statutory schemes. Government Code chapter 411 governs criminal history record information and nondisclosure orders. Occupations Code chapter 301, the Nursing Practice Act, governs how the Board licenses and disciplines nurses. The AG identified two duties that bind the Board. Under Occupations Code section 301.1615(b), criminal history record information the Board receives may be used only by the Board and may not be disclosed to "any person" except as required by court order or to another nursing board in the nurse licensure compact. And under Government Code section 411.075(d), an entity that receives a nondisclosure order (or its contents) from the Department of Public Safety must, within 30 days, seal the criminal history record information it maintains that is subject to the order.

The harder question was whether the Board must seal information that was already in a public disciplinary order. The AG said yes. It explained that the duty to seal does not contain an exception for the Board's final orders, and courts will not write in exceptions the Legislature left out. So even when the Board learns of a nondisclosure order only after issuing a final disciplinary action, it still has to seal and keep confidential the covered criminal history record information.

Finally, the AG revisited its own 2012 opinion, GA-0919, which had concluded the Board did not need to adjust its disciplinary orders to avoid disclosing criminal history. That conclusion rested on the fact that, at the time, the duty to seal lived in subchapter F of chapter 411, and subchapter F expressly does not apply to public administrative proceedings and published administrative opinions. In 2015 the Legislature moved the duty to seal from subchapter F into subchapter E-1, which has no such carve-out. That move broke the link GA-0919 relied on, so the AG concluded GA-0919 is superseded by statute.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

The Texas Board of Nursing and its staff: At the time of the opinion, the AG read two statutes to require the Board both to refrain from disclosing a licensee's criminal history record information (except by court order or to another nursing board) and, once DPS forwarded a nondisclosure order, to seal the covered information within 30 days. The AG said this duty reached even information already published in a final disciplinary order, so the Board had to be prepared to alter its nonconfidential disciplinary procedures and orders to comply.

Nurses and license applicants with a nondisclosure order: The opinion indicated that a nurse whose criminal history was sealed by a court could expect the Board to seal that information from its records, including from a disciplinary order that had already issued, once the Board received the order from DPS.

Agencies that maintain criminal history records generally: The opinion described the general rule that any entity receiving a nondisclosure order from DPS must seal the covered criminal history record information it maintains within 30 days, and that the 2015 amendments removed the public-proceedings exception that had previously been read into that duty.

Common questions

Can a state licensing board publish a nurse's criminal history in a public disciplinary order?
The opinion said the Board may use criminal history record information to discipline a license holder, but it may not disclose that information to "any person" except by court order or to another nursing board, and once a nondisclosure order applies, the Board must seal it.

What happens if the Board already issued a public order mentioning the criminal history before the court sealed it?
The AG concluded the Board still must seal the information. The duty to seal has no exception for final orders the Board already issued, so learning of the nondisclosure order late does not excuse the Board.

Is the Board's earlier opinion on this (GA-0919) still good law?
No. The AG concluded GA-0919 (2012) is superseded by statute, because 2015 amendments moved the duty to seal into a part of chapter 411 that does not exempt public administrative proceedings and published opinions.

How quickly must the information be sealed?
Under Government Code section 411.075(d), an entity that receives the order or its contents from the Department of Public Safety has 30 days to seal the covered criminal history record information.

Background and statutory framework

Chapter 411 of the Government Code authorizes courts to issue nondisclosure orders regulating the use and disclosure of criminal history record information. Subchapter E-1 (sections 411.071-.0775) sets out which dispositions qualify for a nondisclosure order and, since 2015, contains the duty to seal in section 411.075. When a court issues such an order, it sends a copy or the order's contents to the Department of Public Safety, which relays it to law enforcement and other state entities, including the Board, and the recipient must seal covered information within 30 days under section 411.075(d). Subchapter F (sections 411.081-.1410) governs dissemination and use of criminal history record information, restricts recipients to authorized uses, makes unauthorized disclosure an offense under section 411.085(a)(1), and, in section 411.081(a)(3) and (5), provides that "this subchapter" does not apply to criminal history record information contained in public administrative proceedings and published administrative opinions.

Chapter 301 of the Occupations Code, the Nursing Practice Act, lets the Board discipline nurses for convictions and certain other criminal conduct under sections 301.452, 301.453, and 301.4535. Complaints and investigations are confidential under section 301.466(a), but the filing of formal charges, the nature of the charges, disciplinary proceedings, and final disciplinary actions are not confidential under section 301.466(c), and agreed orders are public records under section 301.463(c). Section 301.1615(b) provides that criminal history record information the Board receives may be used only by the Board and may not be disclosed to any person except by court order or to another nursing board under the compact in chapter 304.

The AG applied the interpretive rule that statutes are read as a cohesive whole and harmonized where possible, citing In re H.S. and Fort Worth Transportation Authority v. Rodriguez, and the rule that a court resolves a conflict in favor of one statute only if the conflict is irreconcilable, citing Lexington Insurance Co. v. Strayhorn. It found the duties could be reconciled: no statute actually requires the Board to disclose criminal history record information in its proceedings or orders, only the filing of formal charges (not the charges' contents) must be nonconfidential, and the Board can discipline for underlying conduct without disclosing the protected record information. On the late-notice question, the AG cited Public Utility Commission v. Cofer for the principle that courts will not write special exceptions into a statute, and noted section 301.6555(b) as an example where the Legislature elsewhere required previously public information to be made confidential. A footnote traced the 2015 transfer of the duty to seal from section 411.081 to section 411.075 (Act of May 26, 2015, 84th Leg., R.S., ch. 1279, § 8), the basis for treating GA-0919 as superseded.

Citations

Statutory and session-law provisions:

• Tex. Gov't Code §§ 411.071-.1410 (subchapters E-1 and F)
• Tex. Gov't Code §§ 411.071, .082(2); §§ 411.0715-.074; § 411.072; § 411.0725; § 411.0727; § 411.0735; § 411.074; § 411.075(a), (b)(1), (d); § 411.125
• Tex. Gov't Code § 411.081(a)(3), (5); § 411.083(a), (b)(2), (c); § 411.084(a)(1), (2), (c); § 411.085(a)(1)
• Tex. Gov't Code § 552.142(a); §§ 311.025, 311.026
• Tex. Occ. Code §§ 301.001-.657; § 301.103; § 301.151; § 301.158; § 301.1583; § 301.1615(a), (b), (c)
• Tex. Occ. Code § 301.2511; § 301.257(a), (j), (m); § 301.3011; § 301.452(b)(3), (4); § 301.453; § 301.4535; § 301.454; § 301.457(a), (d); § 301.458(b)(2), (3); § 301.463(c); § 301.466(a), (b), (c), (d); § 301.469; § 301.6555(b); § 53.021; ch. 304
• 22 Tex. Admin. Code § 213.28
• Act of May 26, 2015, 84th Leg., R.S., ch. 1279, § 8, 2015 Tex. Gen. Laws 4328, 4332

Cases:

• In re H.S., 550 S.W.3d 151, 155 (Tex. 2018)
• Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018)
• Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 & n.19 (Tex. 2006)
• Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0919 (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0260
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0260.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 15, 2019

Ms. Katherine A. Thomas, MN, RN, FAAN Opinion No. KP-0260
Executive Director
Texas Board of Nursing Re: Applicability of nondisclosure orders
333 Guadalupe Street, Suite 3-460 on the licensing operations of the Texas Board
Austin, Texas 78701 of Nursing, and reconsideration of
GA-0919 due to amendments to chapter 411
of the Government Code (RQ-0263-KP)

Dear Ms. Thomas:

    Chapter 411 of the Government Code authorizes a court to issue an order regulating the use and disclosure of certain criminal history record information-a nondisclosure order. See TEX. GOV'T CODE §§ 411.071-.1410 (subchapters E-1 and F). You inform us that the Texas Board of Nursing (the "Board") issues disciplinary orders that may cite to a licensee's criminal history when relevant to Board action.1 You ask generally about the duty of an entity maintaining criminal history record information to seal information subject to a nondisclosure order under subchapter E-1. Request Letter at 1. You ask more specifically whether the Board must seal or redact criminal history record information contained in a Board disciplinary order if the Board does not learn of the nondisclosure order until after issuing the disciplinary order. Id. at 1-2.

    Courts "analyze statutes as a cohesive, contextual whole." In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). They consider the context and statutory framework, and attempt to give each statute "a meaning that is in harmony with other related statutes." Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018). Thus, we review in some detail the nondisclosure provisions of chapter 411, subchapters E-1 and F, and pertinent Board authority under chapter 301 of the Occupations Code before attempting to reconcile the Board's statutory duties.

    Criminal history record information "consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." See TEX. GOV'T CODE §§ 411.071, .082(2). Subchapter E-1 specifies a variety of circumstances that may be eligible for a nondisclosure order. See id. §§ 411.0715-.074. A nondisclosure order may be available for several types of misdemeanor and felony charges. See, e.g., id. §§ 411.072 (certain nonviolent misdemeanors), 411.0725 (certain felonies and misdemeanors), 411.074 (required conditions). The types of dispositions of felony or misdemeanor charges that may qualify for a nondisclosure order include dismissal, deferred adjudication, probation, and conviction for certain misdemeanors. See, e.g., id. §§ 411.072 (concerning deferred adjudication community supervision), 411.0727 (concerning dismissal and other disposition following participation in a veterans' treatment court program), 411.0735 (concerning nondisclosure order following conviction of certain offenses). When a court issues a nondisclosure order, it must send a copy of the order or information in the order to the Department of Public Safety (the "Department"). Id. § 411.075(a). The Department, in turn, must provide the information or the order to law enforcement agencies, other specified entities, and "other officials or agencies or other entities of this state," which includes the Board. Id. §§ 411.075(b)(1), .125. An entity or individual who receives the information or order from the Department must, within 30 days, "seal any criminal history record information maintained by the individual or entity that is the subject of the order." Id. § 411.075(d).

    Subchapter F governs the dissemination, use, and disclosure of criminal history record information. See id. §§ 411.081-.1410. The Department may not disseminate the criminal history record information it maintains except as provided by subchapter E-1 or subchapter F. Id. § 411.083(a). The Department must grant access to criminal history record information to noncriminal justice agencies authorized by statute to receive the information. Id. § 411.083(b)(2), (c) (authorizing dissemination "only for a purpose specified in the statute or order"). Subchapter F grants the Board and other specified entities access to the Department's criminal history record information.2 Criminal history record information obtained from the Department "is for the exclusive use of the authorized recipient of the information [and] may be disclosed or used by the recipient only if, and only to the extent that, disclosure or use is authorized or directed by" a court order, subchapter F or another statute, or a rule adopted under a statute. Id. § 411.084(a)(1), (2). "An agency or individual may not confirm the existence or nonexistence of criminal history record information to any person that is not eligible to receive the information." Id. § 411.084(c). A person who knowingly or intentionally "obtains criminal history record information in an unauthorized manner, uses the information for an unauthorized purpose, or discloses the information to a person who is not entitled to the information" commits a criminal offense. Id. § 411.085(a)(1). Finally, subchapter F provides that it "does not apply to criminal history record information that is contained in" public administrative proceedings and published administrative opinions. Id. § 411.081(a)(3), (5).

    Next, we review the Board's authority under the Nursing Practice Act, chapter 301 of the Occupations Code. Chapter 301 generally governs licensure and discipline of the practice of nursing by the Board. See generally TEX. OCC. CODE §§ 301.001-.657. A person's criminal history may provide the grounds for disciplinary action. Specifically, the Board may revoke, suspend, or deny a license as appropriate for a conviction, deferred adjudication, and deferred disposition for a felony or a misdemeanor involving moral turpitude, among other misconduct. Id. §§ 301.452(b)(3), (4), .453, .4535; see also id. § 53.021 (applicable to licensing authorities generally); 22 TEX. ADMIN. CODE § 213.28 (Tex. Bd. of Nursing, Licensure of Individuals with Criminal History).

    The Board or any person may initiate a disciplinary proceeding by filing a complaint. TEX. OCC. CODE § 301.457(a). The Board may investigate the complaint and, if probable cause exists, attempt an informal disposition or file formal charges. Id. § 301.457(d). A formal charge must "be specific enough to enable a person of common understanding to know what is meant by the formal charge," and "contain a degree of certainty that gives the person who is the subject of the formal charge notice of each particular act alleged to violate a specific statute, board rule, or board order." Id. § 301.458(b)(2), (3).

    Under section 301.466, the complaint and investigatory stages of disciplinary proceedings are generally confidential:

            (a) A complaint and investigation concerning a nurse under this subchapter, all information and material compiled by the board in connection with the complaint and investigation ... are:

                  (1) confidential and not subject to disclosure under Chapter 552, Government Code; and

                  (2) not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or a board employee or agent involved in license holder discipline.

Id. § 301.466(a); but see id. § 301.466(b) (authorizing limited disclosure). Beginning with the filing of formal charges, however, specified disciplinary actions and information are generally not confidential:

            (c) The filing of formal charges against a nurse by the board, the nature of those charges, disciplinary proceedings of the board, and final disciplinary actions, including warnings and reprimands, by the board are not confidential and are subject to disclosure in accordance with [the Public Information Act].

Id. § 301.466(c); but see id. § 301.466(a), (d) (excepting Board-ordered peer assistance program). Thus, final disciplinary orders, whether they follow formal or informal disciplinary proceedings, are not confidential and are subject to public disclosure. Id. §§ 301.463(c) ("An agreed order is a public record."), 301.466(c) (final disciplinary actions are not confidential and are subject to disclosure).3

    Several sections in chapter 301 specifically address criminal history and criminal history record information. The Board may require license applicants and holders seeking renewal to provide fingerprints "for the purpose of obtaining criminal history record information." Id. §§ 301.2511, .3011. The Board may utilize criminal history record information to determine a petition for a declaratory order of eligibility for licensing. Id. § 301.257(a), (j), (m). Finally, section 301.1615 provides:

            (a) ... the board may request and receive criminal history record information from the Federal Bureau of Investigation [and from the Department];

            (b) Criminal history record information received by the board may be used only by the board and is privileged. The information may not be disclosed to any person other than:

                    (1) as required under a court order; or

                    (2) to a nursing board that is a member of the nurse licensure compact under Chapter 304.

            (c) If, on the basis of criminal history record information obtained by the board, the board proposes to deny an application for a license, refuse to renew a license, or suspend or revoke a license or temporary permit, the applicant or license holder is entitled to a hearing under Section 301.454.

Id. § 301.1615 (emphasis added). Thus, subsection 301.1615(c) reinforces the Board's authority to utilize criminal history record information to deny a license or discipline a license holder. See id. § 301.1615(c). But subsection 301.1615(b) expressly prohibits the board's disclosure of criminal history record information to "any person" except pursuant to a court order or to another nursing board. Id. § 301.1615(b).

    Previously, this office determined that the Board's final disciplinary orders were not subject to the duty to seal pursuant to a nondisclosure order. Tex. Att'y Gen. Op. No. GA-0919 (2012) at 3. Government Code subsection 411.081(a) states that "[t]his subchapter [i.e., subchapter F] does not apply to criminal history record information that is contained in" public administrative proceedings and published administrative opinions. TEX. GOV'T CODE § 411.081(a)(3), (5) (emphasis added). Before amendment in 2015, the duty to seal was also located in section 411.081.4 Because all of the nondisclosure provisions were then contained in subchapter F, and subchapter F does not apply to public administrative proceedings and published administrative opinions, this office determined that section 411.081 did not require the Board to "adjust its disciplinary orders to avoid disclosure of criminal history record information." Tex. Att'y Gen. Op. No. GA-0919 (2012) at 3.5

   But by moving the duty to seal from section 411.081 in subchapter F to section 411.075 in subchapter E-1, the 2015 amendments disconnected the link between the duty to seal and the exception for public administrative proceedings and published opinions. The exception in subsection 411.081(a) still limits application of "this subchapter," i.e. subchapter F, and does not include the duties now located in subchapter E-1. Subchapter E-1 does not contain a similar exception for public administrative proceedings and published administrative opinions. See TEX. GOV'T CODE §§ 411.071-.0775.

    Thus, the Board's duties to seal and keep criminal history record information confidential potentially conflict with its duties to discipline or deny licensing using nonconfidential procedures and orders. Compare id. §§ 411.075(d) (requiring the Board to seal the information), 411.085(a)(1) (making unauthorized use or disclosure an offense), 552.142(a) (excepting criminal history record information from the duty of disclosure under the Public Information Act), and TEX. OCC. CODE § 301.1615(b) (prohibiting the Board from disclosing criminal history record information to "any person"), with TEX. GOV'T CODE § 411.081(a)(3), (5) (excepting administrative proceedings and final opinions from application of subchapter F), and TEX. OCC. CODE §§ 301.463(c) (providing that agreed orders are public records), 301.466(c) (providing that the filing of formal charges, the nature of the charges, disciplinary proceedings, and final disciplinary actions are not confidential and are subject to disclosure). However, courts attempt to harmonize potentially conflicting statutes, giving full effect to both, if possible. Rodriguez, 547 S.W.3d at 838-39. A court may apply rules for resolving conflict to determine that one statute prevails over another, but only if the conflict is irreconcilable.6 Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 & n.19 (Tex. 2006).

    A court would likely conclude that the Board's duty to keep criminal history record information confidential can be reconciled with its duty to keep specified disciplinary proceedings and final actions nonconfidential. No statute specifically requires the Board to disclose criminal history record information in its proceedings and orders. While formal charges must "be specific" and sufficiently certain to provide the nurse charged with "notice of each particular act alleged to violate a specific statute, board rule, or board order," only the filing of formal charges, not the charges themselves, must be nonconfidential. TEX. OCC. CODE § 301.458(b)(2), (3), .466(c). Moreover, the Board may impose disciplinary action in nonconfidential proceedings and orders for underlying criminal conduct without disclosing criminal history record information that results from that conduct.7 While the duty to protect criminal history record information may require the Board to alter its nonconfidential disciplinary procedures and actions, the Legislature has called on the Board to strike that balance and comply with both mandates. See id. § 301.151 (authorizing the board to adopt rules "necessary to ... perform its duties and conduct proceedings").8

                                   SUMMARY

                 Under subsection 301.1615(b) of the Occupations Code, the Texas Board of Nursing may not disclose the criminal history record information of its license applicants or holders to any person except to another nursing board or by court order.

                 When the Department of Public Safety provides the Board with a nondisclosure order or the order's contents, subsection 411.075(d) of the Government Code requires the Board to seal criminal history record information it maintains that is subject to the nondisclosure order. The Board has a duty to seal and maintain such information as confidential even when the Board learns of a nondisclosure order after issuing a final disciplinary action.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

1See Letter from Ms. Katherine A. Thomas, MN, RN, FAAN, Exec. Dir., Tex. Bd. of Nursing, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Jan. 11, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2Section 411.125 provides: The Texas Board of Nursing is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who: (1) is an applicant for or the holder of a license issued by the board; (2) has requested a determination of eligibility for a license from the board; or (3) is subject to investigation by the board in connection with a complaint or formal charge against the person. TEX. GOV'T CODE § 411.125.
3The Board must send a copy of its final order to the nurse and the nurse's last known employer. TEX. OCC. CODE § 301.469. Also, the Board must periodically disseminate summaries of disciplinary action taken to nurses and employers of nurses. Id. § 301.158. The Board must maintain records of its meetings and a registry of nurses available as public information. Id. § 301.103. In certain circumstances, the Board may remove specified disciplinary action from the nurse licensure verification page of its website and from the coordinated licensure system under the Nurse Licensure Compact of licensing authorities. Id. § 301.1583.
4See Act of May 26, 2015, 84th Leg., R.S., ch. 1279, § 8, 2015 Tex. Gen. Laws 4328, 4332 (transferring subsection 411.081(g-1b) to section 411.075).
5Because it construed subchapter F prior to the 2015 amendments, Texas Attorney General Opinion GA-0919 (2012) is superseded by statute.
6See TEX. GOV'T CODE §§ 311.025 (latest date of enactment rule), 311.026 (general versus specific rule).
7See id. §§ 411.071, .082(2) (defining criminal history record information as "identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions").
8You also ask whether the Board must seal or redact criminal history record information contained in a Board disciplinary order, if the Board does not learn of the nondisclosure until after issuing the disciplinary order or learns of the order from some source other than the Department. Request Letter at 1-2. The statutes requiring the Board to keep criminal history record information confidential do not include an exception applicable to the Board's final orders. See TEX. OCC. CODE § 301.1615. Courts will not "write special exceptions into a statute so as to make it inapplicable under certain circumstances not mentioned in the statute." Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988). While it may seem unusual to require the Board to treat information that previously was available to the public as confidential, we note that another statute requires that result in another context. TEX. OCC. CODE § 301.6555(b) (authorizing Board to issue a nonconfidential deferred disciplinary action, but requiring the Board to make that information confidential if the person successfully meets the conditions imposed by the Board).