Court of Appeals of Texas, Second District, Fort Worth
THE STATE OF TEXAS APPELLEE
COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NOS.
CV-2016-00350, CV-2016-00351, CV-2016-00352
SUDDERTH, KERR, and PITTMAN, JJ.
MEMORANDUM OPINION 
ELIZABETH KERR JUSTICE
S.S. was denied employment because of misdemeanor offenses
she committed in 2001 and 2003, she filed petitions for
nondisclosure of the criminal-history record information
related to those offenses. The trial court denied her
petitions. In four issues on appeal, S.S. argues that the
trial court erred and violated her due-process and
equal-protection rights by not applying the statute in effect
at the time she filed her petitions and by not conducting an
evidentiary hearing as required by that statute, and that the
trial court erred by holding a hearing on her petitions
without a responsive pleading from, and a hearing request by,
the State. We affirm.
2001, the trial court placed S.S. on deferred-adjudication
community supervision for criminal mischief and marijuana
possession. Roughly a year later, the trial court adjudicated
her guilty of both offenses and sentenced her to 60 days in
2003, a jury convicted S.S. of harassment and assessed
punishment at 150 days' confinement and a $1, 000 fine.
The trial court suspended the sentence and placed her on
community supervision for 24 months, which she successfully
February 2016, S.S. filed a petition for nondisclosure in
each case requesting an order prohibiting criminal-justice
agencies from disclosing to the public her criminal-history
record information. At the hearing on her petitions, S.S.
argued that she was entitled to a nondisclosure order under
recently enacted government code sections 411.0735, 411.074,
and 411.0745. Tex. Gov't Code Ann. §§ 411.0735
("Procedure for Conviction and Confinement; Certain
Misdemeanors"), .074 ("Required Conditions for
Receiving an Order of Nondisclosure"), .0745
("Petition and Order") (West Supp. 2016). The trial
court concluded that these sections did not apply because
S.S. committed the offenses before the September 1, 2015
effective date and that S.S. did not satisfy the statutory
requirements for nondisclosure that were in effect at the
time she committed the offenses. Finding S.S. ineligible for
nondisclosure in each case, the trial court thus denied her
first and second issues, respectively, S.S. complains that
the trial court erred by not applying the statute in effect
at the time she filed her petition and by not conducting an
evidentiary hearing on all statutorily mandated issues.
Specifically, she contends that the trial court should have
proceeded under government code sections
411.074 and 411.0745 and allowed her to put on
evidence that nondisclosure would serve the best interest of
justice. The State responds that these sections do not apply
because S.S. committed the offenses before the statute's
effective date. The State also asserts that S.S. is
ineligible for nondisclosure under the earlier law that does
apply to her. We agree with the State.
first issue hinges on statutory construction, something we
review de novo and with the primary objective being to
ascertain and to give effect to the legislature's intent
as expressed in the statute. See Liberty Mut. Ins. Co. v.
Adcock, 412 S.W.3d 492, 494 (Tex. 2013); Galbraith
Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863,
867 (Tex. 2009). To determine that intent, "[w]e look to
the [statute's] enabling language as well as the content
of the statute itself." Nangia v. Taylor, 338
S.W.3d 768, 770 (Tex. App.-Beaumont 2011, no pet.).
2015-a dozen years after S.S.'s last offense-the
legislature amended and transferred portions of the statutory
provisions governing orders of nondisclosure from section
411.081(d) through (i) to a newly enacted government-code
subchapter. See Act of May 21, 2015, 84th Leg.,
R.S., ch. 1279, §§ 1-13, 2015 Tex. Sess. Law Serv.
4327, 4327-34 (West) (codified at Tex. Gov't Code Ann.
§§ 411.071-.0775 (West Supp. 2016)); see
also Tex. Gov't Code Ann. § 411.081(d)-(i)
(West Supp. 2016). Before these amendments, nondisclosure was
available only in certain cases in which a person was placed
on deferred-adjudication community supervision and later
received a discharge and dismissal. See Act of May
31, 2003, 78th Leg., R.S., ch. 1236, § 4, sec.
411.081(d)-(e), 2003 Tex. Gen. Laws 3499, 3500-01 (amended
2005, 2007, 2013, 2015) (current version at Tex. Gov't
Code Ann. §§ 411.0725(b)-(e), 411.074). But now,
the statute also allows for nondisclosure after misdemeanor
convictions in certain cases. Relevant to this case,
newly added sections 411.073 and 411.0375 allow someone to
seek nondisclosure of certain misdemeanor convictions that
resulted in community supervision or confinement.
See Tex. Gov't Code Ann. §§ 411.073,
for S.S., these changes in the law apply only prospectively,
that is, to the nondisclosure of criminal-history record
information for offenses committed after their September 1,
2015 effective date:
SECTION 32. The changes in law made by this Act apply only to
the issuance of an order of nondisclosure of criminal history
record information for an offense committed on or after the
effective date of this Act. The issuance of an order of
nondisclosure of criminal history record information for an
offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, ...