Who can see criminal records under a Texas nondisclosure order in the clerk's system?

Plain-English summary

The Williamson County Attorney asked the AG who may access and view criminal history record information that is subject to an order of nondisclosure under chapter 411 of the Government Code. The practical problem: the county's court records information system let members of the public and all district clerk and county clerk employees see information covered by nondisclosure orders, and the vendor said limiting access would require reprogramming the system. The county attorney was especially worried about general access by clerk employees.

The AG walked through the statutory scheme. An order of nondisclosure prohibits criminal justice agencies from disclosing a person's criminal history record information to the public. After the order issues, the clerk sends the order and relevant information to the Department of Public Safety's Crime Records Service, then seals the court records containing that information. The Department seals its copy and forwards the information to law enforcement agencies, courts, prosecutors, and other officials, who must seal it too. A court that issues a nondisclosure order, and a criminal justice agency, may disclose the information only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the agencies and entities the statute specifically lists, or to the person who is the subject of the order. That statutory list names a district court for certain name-change petitions and a county clerk's office for certain guardianship proceedings, but it does not include district and county clerk employees as a general class.

From there the AG drew the conclusions. Because the whole point of a nondisclosure order is to keep the information from the public, the public is not entitled to general access. A clerk may use deputies and staff to carry out the clerk's duties, so a clerk may let deputies and other employees access the information as necessary to perform the authorized purposes of the statute, but the criminal offense provision means employees may access it only for those authorized purposes. The clerk's duty to seal the information and disclose it only for authorized purposes indicates the clerk should restrict access to employees who actually perform those duties. A court could conclude that an employee who accesses the records without authorization violates the nondisclosure order, and that records generally accessible to all clerk employees have not been properly sealed. What specific measures are needed to adequately seal the records, whether reprogramming the system, adopting office protocols, or something else, is a fact question that cannot be answered in the AG opinion process.

Currency note

This opinion was issued in 2017. 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 requesting county attorney (as the opinion described it): The opinion answered that a court may disclose criminal history record information subject to a nondisclosure order only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the subject of the order, or to entities listed in section 411.0765(b), and that such information may not be disclosed to district or county clerk employees except as necessary for statutorily authorized purposes.

District and county clerks (as the opinion described them): The opinion explained that a clerk may authorize deputies and staff to access the information only as necessary to perform authorized duties under the statute, and that the clerk's sealing duty indicates access should be restricted to those employees who perform those duties.

The public (as the opinion described it): The opinion concluded the public is not entitled to general access to criminal history record information subject to a court's nondisclosure order, because the order exists to keep that information from the public.

Common questions

Can the public look up records that are under a Texas nondisclosure order?
No. The opinion concluded the public is not entitled to general access, because a nondisclosure order's purpose is to keep the information from the public.

Can every clerk's office employee see these sealed records?
No. The opinion explained that clerk employees may access the records only as necessary to perform statutorily authorized duties, not as a general class, and that the clerk should restrict access accordingly.

Who is allowed to receive this information at all?
The opinion said a court or criminal justice agency may disclose it only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the person who is the subject of the order, or to the specific agencies and entities the statute lists.

Does the county have to reprogram its records system?
The opinion did not require any particular fix. It explained that whether reprogramming, office protocols, or other measures adequately seal the records is a question of fact that the AG cannot resolve in an opinion.

Background and statutory framework

Government Code chapter 411, subchapter E-1 governs court orders for the nondisclosure of certain criminal history record information (Tex. Gov't Code §§ 411.071-.0775). For persons who meet the requirements, a court may issue an order prohibiting criminal justice agencies from disclosing their criminal history record information to the public (Tex. Gov't Code §§ 411.071, 411.072(b), 411.0725(d), 411.0728(c), 411.073(c), 411.0735(c), 411.082(3)(A)). After the order issues, the clerk sends the order and relevant information to the Department of Public Safety, seals the court records, and the Department seals and forwards the information to listed officials and entities, who must also seal it (Tex. Gov't Code §§ 411.075(a), 411.075(b)(1), 411.075(d), 411.076(b)). A court or criminal justice agency may disclose the information only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the agencies and entities listed, or to the subject of the order (Tex. Gov't Code §§ 411.076(a), 411.0765(a), 411.0765(b)). The list includes a district court for certain name-change petitions and a county clerk's office for certain guardianship proceedings, but not clerk employees generally (Tex. Gov't Code §§ 411.0765(b)(7), 411.0765(b)(25), 411.1386, 411.0745(d)).

Subchapter F governs criminal history record information maintained by the Department, which is confidential and may be disseminated only as authorized, and a recipient may disclose it only as authorized by statute, rule, or court order (Tex. Gov't Code §§ 411.081-.1410, 411.083(a)-(c), 411.083(b)(7), 411.084(a)(2)). Knowingly obtaining the information in an unauthorized manner, using it for an unauthorized purpose, or disclosing it to a person not entitled to it is a criminal offense (Tex. Gov't Code § 411.085(a)(1)). A clerk may use deputies to perform the clerk's duties (Tex. Loc. Gov't Code § 82.005(c); Tex. Gov't Code § 51.309(a)), and public officers possess implied authority reasonably necessary to carry out statutory duties (Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972)), so a clerk may authorize staff to access the information only for authorized purposes. The adequacy of sealing measures is a question of fact outside the opinion process (Tex. Att'y Gen. Op. No. KP-0047 (2015)).

Citations

Constitutional and statutory provisions:

• Tex. Gov't Code §§ 411.071-.0775, 411.071, 411.072(b), 411.0725(d), 411.0728(c), 411.073(c), 411.0735(c), 411.0745(d), 411.075(a), 411.075(b)(1), 411.075(d), 411.076(a), 411.076(b), 411.0765(a), 411.0765(b), 411.0765(b)(7), 411.0765(b)(25), 411.081-.1410, 411.082(3)(A), 411.083(a)-(c), 411.083(b)(7), 411.084(a)(2), 411.085(a)(1), 411.1386, 51.309(a)
• Tex. Loc. Gov't Code § 82.005(c)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0047 (2015)

Cases:

• Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0134
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0134.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 27, 2017

The Honorable Dee Hobbs Opinion No. KP-0134
Williamson County Attorney
405 M.L.K. Street #7 Re: Access to court records containing
Georgetown, Texas 78626 criminal history record information that is
subject to an order of nondisclosure under
chapter 411 of the Government Code
(RQ-0125-KP)

Dear Mr. Hobbs:

    You ask what persons or agencies may have access to and may view criminal history record information that is subject to an order of nondisclosure under chapter 411 of the Government Code. [1] You state that Williamson County's court records information system, as presently utilized, allows members of the public and all district clerk and county clerk employees to access and view information subject to nondisclosure orders. Request Letter at 2. You further state that the information system vendor informed you that limiting access to the information to certain employees and excluding public access would require reprograming the system. Id. You are particularly concerned about general access to the records by employees of the district clerk and county clerk. Id. at 1-2.

    Government Code chapter 411, subchapter E-1 governs a court's orders for the nondisclosure of certain criminal history record information. TEX. GOV'T CODE §§ 411.071-.0775. For persons convicted of particular crimes who meet certain requirements, a court may issue an order prohibiting criminal justice agencies from disclosing their criminal history record information to the public. [2] A "criminal justice agency" includes a "state agency 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." Id. §§ 411.071, .082(3)(A). After issuance of the order, the clerk of the court must send all relevant information contained in the order or a copy of the order to the Crime Records Service of the Department of Public Safety (the "Department"). Id. § 411.075(a). After sending the information to the Department, the clerk of the court must seal any court records containing information that is the subject of the order. Id. § 411.076(b). The Department must seal the information it receives from the clerk and then send the information or a copy of the order to, among others, 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.

Id. § 411.075(b)(1). These individuals and entities "shall seal any criminal history record information maintained by the individual or entity that is the subject of the order." Id. § 411.075(d). A court issuing a nondisclosure order may disclose such information in the court's records, and a criminal justice agency may disclose such information in its possession only to "(1) criminal justice agencies for criminal justice or regulatory licensing purposes; (2) an agency or entity listed in Section 411.0765; or (3) the person who is the subject of the order." Id. § 411.076(a) (disclosure by court); see also id. § 411.0765(a) (disclosure by criminal justice agencies). Subsection 411.0765(b) allows a criminal justice agency to disclose criminal history record information that is subject to a nondisclosure order only to thirty-one specified noncriminal justice agencies in particular circumstances. Id. § 411.0765(b). The list includes a district court concerning certain petitions for a name change and a county clerk's office concerning certain proceedings for the appointment of a guardian, but does not include district and county clerk employees as a general class. Id. § 411.0765(b)(7), (25); see also id. § 411.1386 (concerning access and court clerk responsibilities in guardianship proceedings).

    Subchapter F further governs criminal history record information's use, disclosure, and access requirements, focusing on criminal history record information maintained by the Department. Id. §§ 411.081-.1410. Criminal history record information maintained by the Department is confidential, and the Department may not disseminate the information except as specifically authorized by statute. Id. § 411.083(a)-(c). Criminal history record information obtained from the Department may be disclosed by the recipient only to the extent authorized by statute, rule, or court order. Id. § 411.084(a)(2). 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).

    Subchapters E-1 and F do not directly address who may access criminal history record information maintained in a clerk's office, focusing instead on nondisclosure and authorized disclosure after the information has been sealed. Because the purpose of a nondisclosure order is to prohibit the disclosure of criminal history record information to the public, the public is not entitled to general access to criminal history record information that is subject to a court's nondisclosure order. See, e.g., id. §§ 411.072(b) (stating that the order "prohibit[s] criminal justice agencies from disclosing to the public criminal history information related to" certain offenses), .0725(d) (same), .0728(c) (same). And while subchapters E-1 and F authorize disclosure to certain persons and entities, the statutes do not address whether such persons and entities may access a clerk's electronic information system to obtain criminal history record information. See id. §§ 411.076(a), .0765(a) (authorizing disclosure only to criminal justice agencies for criminal justice or regulatory licensing purposes to the person who is the subject of the order, or to an agency or entity listed in section 411.0765(b) of the Government Code).

    Subchapters E-1 and F also do not address whether a clerk may allow all deputies or other employees to access criminal history record information. In three instances, the subchapters mention the "office" of a district or county clerk. Section 411.083 states that the Department must grant access to its information to "a county or district clerk's office," but "only to the extent necessary for a county or district clerk to perform a duty imposed by law to collect and report criminal court disposition information." Id. § 411.083(b)(7), (c). Section 411.0765 authorizes a criminal justice agency to disclose such information to a "county clerk's office" for specific guardianship proceedings. Id. § 411.0765(b)(25). And section 411.0745 requires a "county or district clerk's office that maintains an Internet website" to include applications for a nondisclosure order. Id. § 411.0745(d). But it is the "clerk of the court issuing an order of nondisclosure," id. § 411.076(b), who has the duty to seal the criminal record history information pursuant to court order and to send a copy of the information or the order to the Department. Id. § 411.075(a). And criminal history record information, whether derived from a local court or the Department, must remain sealed and may be disclosed only as statutorily authorized. See id. §§ 411.076(a), .0765(b); see also id. §§ 411.0765(b)(7), (25) (authorizing clerks to disclose such information for limited civil purposes), .084(a)(2) (stating that information obtained from the department "may be disclosed or used by the recipient only if, and only to the extent that, disclosure or use is authorized or directed by" statute, rule, or court order).

    In general, a clerk may utilize deputies to perform the clerk's duties. See TEX. LOC. GOV'T CODE § 82.005(c) (stating that a "deputy clerk acts in the name of the county clerk and may perform all official acts that the county clerk may perform"); TEX. GOV'T CODE § 51.309(a) ("deputy clerk may perform in the name of the district clerk all official acts of the office of district clerk"). Thus, a clerk may authorize deputies and other staff to access criminal history record information as necessary to assist the clerk to carry out the specified authorized purposes of subchapters E-1 and F. See Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972) (determining that public officers possess implied authority reasonably necessary to carry out duties imposed by statute). But because section 411.085 prohibits any person from obtaining, using, or disclosing such information except as specifically authorized, a clerk's deputies or other employees may access information only for authorized purposes under subchapters E-1 and F. TEX. GOV'T CODE § 411.085(a)(1).

    The clerk's duty to seal criminal history record information and to allow disclosure for only authorized purposes indicates that the clerk should restrict access to the information to only those deputies or other employees who perform duties under subchapters E-1 and F. While the subchapters do not specify the measures required to seal criminal history record information in electronic form, a court could conclude that a district or county clerk employee who accesses criminal history record information when such access is not authorized violates the nondisclosure order. See id. § 411.085(a)(1). A court could also conclude that criminal history record information that is generally accessible to all employees of a district or county clerk's office has not been sealed as required by subchapter E-1. What measures are necessary to adequately seal criminal history record information and orders, whether reprograming the county's system, establishing office protocols, or taking some other measures is ultimately a question of fact dependent on various factors that cannot be ascertained in the attorney general opinion process. See Tex. Att'y Gen. Op. No. KP-0047 (2015) at 3.

                                 SUMMARY

                  Pursuant to section 411.076 of the Government Code, a court may disclose criminal history record information subject to an order of nondisclosure only to criminal justice agencies for criminal justice or regulatory licensing purposes, to the person who is the subject of the order, or to an agency or entity listed in section 411.0765(b) of the Government Code. Such criminal history record information may not be disclosed to employees of a district or county clerk except as necessary for statutorily authorized purposes. The adequacy of measures necessary to seal criminal history record information involves questions of fact that cannot be determined in an attorney general opinion.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Dee Hobbs, Williamson Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 22, 2016) and Supplemental Letter to Virginia K. Hoelscher, Chair, Opinion Committee, Office of the Tex. Att'y Gen. at 1 (Sept. 29, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Supplemental Letter," respectively). Although your initial letter references statutes that were renumbered and amended in 2015, we address only the current statutes.

[2] See TEX. GOV'T CODE §§ 411.072(b) (order concerning specified nonviolent misdemeanors), .0725(d) (order concerning certain felonies and misdemeanors in specified circumstances), .0728(c) (order concerning offenses by victims of trafficking), .073(c) (order concerning misdemeanor offenses in certain circumstances), .0735(c) (order following period of confinement for certain misdemeanors).