Can a nurse with a nondisclosure order keep their criminal record out of the nursing board's disciplinary order?

Plain-English summary

Katherine A. Thomas, the executive director of the Texas Board of Nursing, asked the Attorney General a question that touches every nurse who has been through deferred adjudication on a criminal charge: when the Board disciplines a nurse and publishes the order, must it leave out, or seal, criminal history that a court has ordered kept confidential through a nondisclosure order?

A nondisclosure order is something a person placed on deferred adjudication can obtain under section 411.081 of the Government Code. It generally bars criminal justice agencies from disclosing to the public the criminal history tied to that offense, and it can require an agency that holds the record to seal it. The Board is a state agency, so at first glance that sealing duty might seem to reach the Board's files.

The opinion pointed to an exception built into the same statute. Section 411.081 does not apply to criminal history record information contained in public judicial, administrative, or legislative proceedings, or in published judicial or administrative opinions. The Board publishes its disciplinary orders after conducting public administrative proceedings. So the opinion concluded that a court would likely treat those orders as "published administrative opinions" that arise from "public administrative proceedings," which fall outside section 411.081. On that reading, a nondisclosure order would likely not require the Board to redact or seal criminal history in its disciplinary orders.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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 (as the opinion described it): The opinion concluded that a court would likely find section 411.081 does not require the Board to adjust its disciplinary orders to avoid disclosing criminal history covered by a nondisclosure order, because the published-administrative-opinion exception applied.

Nurses with a nondisclosure order (as the opinion held for them): The opinion treated the Board's published disciplinary orders as falling within the statute's exception, so a nondisclosure order would likely not force the Board to seal criminal history contained in those orders.

Common questions

Does a nondisclosure order make the nursing board hide a nurse's criminal record?
According to the opinion, a court would likely find that it does not, at least for criminal history contained in the Board's published disciplinary orders.

What is a nondisclosure order?
The opinion described it as a court order under section 411.081 that a person placed on deferred adjudication can seek. It generally prohibits criminal justice agencies from disclosing to the public the criminal history record information related to the offense.

Why don't the Board's disciplinary orders have to be sealed?
The opinion explained that section 411.081 does not apply to criminal history record information contained in published administrative opinions arising from public administrative proceedings, and that the Board's disciplinary orders likely qualify as such.

Isn't the nursing board a state agency that would otherwise have to seal records?
The opinion noted that the Board is a state agency, but it concluded that the statutory exception for published administrative opinions controlled, so the sealing duty likely did not reach the disciplinary orders.

Background and statutory framework

Section 411.081 of the Government Code lets a person placed on deferred adjudication seek a nondisclosure order, Tex. Gov't Code Ann. § 411.081(d) (West Supp. 2011), which can require a state agency that receives the criminal history record information to seal it. The Texas Board of Nursing is a state agency. Tex. Occ. Code Ann. § 301.004(5) (West 2012).

The opinion turned on the statute's own carve-out: 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). Because the Board publishes its disciplinary orders after public administrative proceedings, see 22 Tex. Admin. Code § 213.23(h) (2011), the opinion concluded a court would likely treat them as published administrative opinions outside the reach of a nondisclosure order.

Citations

Statutes:

• Tex. Gov't Code Ann. § 411.081(d) (West Supp. 2011)
• Tex. Gov't Code Ann. § 411.081(a)(3), (5) (West Supp. 2011)
• Tex. Occ. Code Ann. § 301.004(5) (West 2012)
• 22 Tex. Admin. Code § 213.23(h) (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0919
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0919.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 23, 2012

Katherine A. Thomas, MN, RN Opinion No. GA-0919
Executive 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.[1] 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. Id. 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." Id. at 2.

Section 411.081 allows a person placed on deferred adjudication to seek a nondisclosure order. TEX. GOV'T CODE ANN. § 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." Id. 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." Id. § 411.081(g-1b) (applying to "an individual or entity described by Subsection (g-1)(1)"). See also id. § 411.081(g-1)(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 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.

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.

Very truly yours,

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

[1] Letter 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").

[2] TEX. GOV'T CODE ANN. § 411.081(a)(3), (5) (West Supp. 2011).