By De La Garza, Yost, Gallego, et al. H.B. No. 357
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the records of the conviction or adjudication of a
1-3 minor.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 51.14(a)-(c), Family Code, as amended by
1-6 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
1-7 Session, 1987, are amended to read as follows:
1-8 (a) Except as provided by Subsection (e) of this section,
1-9 all files and records of a juvenile court, a clerk of court, or a
1-10 prosecuting attorney relating to a child who is a party to a
1-11 proceeding under this title are open to inspection only by:
1-12 (1) the judge, probation officers, and professional
1-13 staff or consultants of the juvenile court;
1-14 (2) an attorney for a party to the proceeding;
1-15 (3) a public or private agency or institution
1-16 providing supervision of the child by arrangement of the juvenile
1-17 court, or having custody of the child under juvenile court order;
1-18 <or>
1-19 (4) a law enforcement officer as necessary for the
1-20 discharge of the officer's official duties;
1-21 (5) recruiters for the armed forces of the United
1-22 States authorized by federal law to obtain information necessary
1-23 for recruitment; or
1-24 (6) with leave of juvenile court, any other person,
2-1 agency, or institution having a legitimate interest in the
2-2 proceeding or in the work of the court.
2-3 (b) All files and records of a public or private agency or
2-4 institution providing supervision of a child by arrangement of the
2-5 juvenile court or having custody of the child under order of the
2-6 juvenile court are open to inspection only by:
2-7 (1) the professional staff or consultants of the
2-8 agency or institution;
2-9 (2) the judge, probation officers, and professional
2-10 staff or consultants of the juvenile court;
2-11 (3) an attorney for the child;
2-12 (4) with leave of the juvenile court, any other
2-13 person, agency, or institution having a legitimate interest in the
2-14 work of the agency or institution; <or>
2-15 (5) the Texas Department of Criminal Justice
2-16 <Corrections>, the Department of Public Safety, and the Texas
2-17 Juvenile Probation Commission, for the purpose of maintaining
2-18 statistical records of recidivism, and for diagnosis and
2-19 classification; or
2-20 (6) a law enforcement officer as necessary for the
2-21 discharge of the officer's official duties.
2-22 (c) Except as provided by this subsection, law-enforcement
2-23 files and records concerning a child shall be kept separate from
2-24 files and records of arrests of adults and shall be maintained on a
2-25 local basis only and not sent to a central state or federal
2-26 depository. The <However, the> law-enforcement files and records
2-27 of a person who is transferred from the Texas Youth Commission to
3-1 the institutional division of the Texas Department of Criminal
3-2 Justice <Corrections> under a determinate sentence may be
3-3 transferred to a central state or federal depository for adult
3-4 records on or after the date of transfer. If a child has been
3-5 reported as missing by a parent, guardian, or conservator of that
3-6 child or a child has escaped from the custody of a juvenile
3-7 detention facility, the Texas Youth Commission, or any other agency
3-8 to which the child has been committed, any information or records
3-9 concerning that child may be transferred to and disseminated by the
3-10 Texas Crime Information Center and the National Crime Information
3-11 Center.
3-12 SECTION 2. Sections 51.15(a)-(c), Family Code, as amended by
3-13 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
3-14 Session, 1987, are amended to read as follows:
3-15 (a) No child may be fingerprinted without the consent of the
3-16 juvenile court except as provided by this subsection or by
3-17 subsections (f) and (i) of this section. A child's fingerprints
3-18 may be taken and filed by a law-enforcement officer investigating a
3-19 case if<:>
3-20 <(1)> the child is <15 years of age or older and is>
3-21 referred to the juvenile court for any felony<; or>
3-22 <(2) the child is under 15 years of age and is
3-23 referred to the juvenile court for a felony listed in Section
3-24 53.045(a) of this code>.
3-25 (b) Except as provided in Subsections (h) and (i) of this
3-26 section, no child taken into custody may be photographed without
3-27 the consent of the juvenile court unless<:>
4-1 <(1)> the child is <15 years of age or older and is>
4-2 referred to the juvenile court for any <a> felony<; or>
4-3 <(2) the child is under 15 years of age and is
4-4 referred to the juvenile court for a felony listed in Section
4-5 53.045(a) of this code>.
4-6 (c) Except as provided by this subsection, fingerprint and
4-7 photograph files or records of children shall be kept separate from
4-8 those of adults<, and fingerprints or photographs known to be those
4-9 of a child shall be maintained on a local basis only and not sent
4-10 to a central state or federal depository>. The <However,>
4-11 fingerprint and photograph files or records of a person who is
4-12 transferred from the Texas Youth Commission to the institutional
4-13 division of the Texas Department of Criminal Justice <Corrections>
4-14 under a determinate sentence may be transferred to adult records on
4-15 or after the date of transfer. If a child has been reported as
4-16 missing by a parent, guardian, or conservator of that child or a
4-17 child has escaped from the custody of a juvenile detention
4-18 facility, the Texas Youth Commission, or any other agency to which
4-19 the child has been committed, the child's fingerprints and
4-20 photograph may be sent to and indexed into the files of the
4-21 Department of Public Safety and the Federal Bureau of Investigation
4-22 to aid in the location and identification of the child.
4-23 SECTION 3. Section 51.16, Family Code, is amended to read as
4-24 follows:
4-25 Sec. 51.16. DESTRUCTION AND SEALING OF FILES AND RECORDS.
4-26 (a) On <Except as provided by Subsection (j) of this section, on>
4-27 the application of a person 23 years of age or older who has been
5-1 found to have engaged in delinquent conduct or conduct indicating a
5-2 need for supervision, or who has been <a person> taken into custody
5-3 to determine whether he engaged in delinquent conduct or conduct
5-4 indicating a need for supervision, or on the juvenile court's own
5-5 motion, the court, after hearing, shall order the destruction
5-6 <sealing> of the files and records in the case, except the court's
5-7 files and records, which shall be sealed, including those specified
5-8 in Sections 51.14 and 51.15 of this code, as provided by this
5-9 section, if the court finds that:
5-10 (1) at least five <two> years have elapsed since final
5-11 discharge of the person, or since the last official action in his
5-12 case if there was no adjudication;
5-13 (2) since the time specified in Subdivision (1) of
5-14 this subsection, he has not been convicted of a felony or a
5-15 misdemeanor involving moral turpitude or found to have engaged in
5-16 delinquent conduct or conduct indicating a need for supervision,
5-17 and no proceeding is pending seeking conviction or adjudication;
5-18 and
5-19 (3) it is unlikely the person will engage in further
5-20 delinquent conduct or conduct indicating a need for supervision or
5-21 will commit a felony or a misdemeanor involving moral turpitude.
5-22 (b) The court may grant the relief authorized in Subsection
5-23 (a) of this section at any time after final discharge of the person
5-24 or after the last official action in his case if there was no
5-25 adjudication.
5-26 (c) Reasonable notice of the hearing shall be given to:
5-27 (1) the person who made the application or who is the
6-1 subject of the files or records named in the motion;
6-2 (2) the prosecuting attorney for the juvenile court;
6-3 (3) the authority granting the discharge if the final
6-4 discharge was from an institution or from parole;
6-5 (4) the public or private agency or institution having
6-6 custody of files or records named in the application or motion; and
6-7 (5) the law-enforcement agency having custody of files
6-8 or records named in the application or motion.
6-9 (d) The order of destruction shall apply to the files and
6-10 records relating to the person's adjudication and disposition that
6-11 are in the custody of a law enforcement officer or agency, a
6-12 prosecuting attorney, or a public or private agency or
6-13 institution. Copies of the <sealing> order requiring the
6-14 destruction of records shall be sent to each agency or official
6-15 <therein> named in the order. The files and records in the custody
6-16 of the clerk of the court or juvenile court shall be ordered sealed
6-17 and shall be the only files and records not ordered destroyed or
6-18 subject to an order of destruction.
6-19 (e) On entry of the order:
6-20 (1) all law-enforcement, prosecuting attorney, clerk
6-21 of court, and juvenile court files and records ordered sealed shall
6-22 be sent to the court issuing the order and the court shall seal
6-23 those files and records;
6-24 (2) all files and records of a public or private
6-25 agency or institution ordered destroyed <sealed> shall be sent to
6-26 the court issuing the order and the court shall destroy those files
6-27 and records;
7-1 (3) all index references to the files and records
7-2 ordered destroyed <sealed> shall be deleted;
7-3 (4) the juvenile court, clerk of court, prosecuting
7-4 attorney, public or private agency or institution, and
7-5 law-enforcement officers and agencies shall properly reply that no
7-6 record exists with respect to such person upon inquiry in any
7-7 matter; and
7-8 (5) the adjudication shall be vacated and the
7-9 proceeding dismissed and treated for all purposes, including the
7-10 purpose of showing a prior finding of delinquency, as if it had
7-11 never occurred.
7-12 (f) Notwithstanding the entry of an order under this section
7-13 providing for the destruction of a person's files and records, the
7-14 court shall provide that the following information concerning the
7-15 person for whom the order was entered is recorded in the
7-16 computerized criminal history system as provided by Article 60.053,
7-17 Code of Criminal Procedure:
7-18 (1) the name and date of birth of the person;
7-19 (2) a state identification number for the person
7-20 assigned by the Department of Public Safety; and
7-21 (3) the court in which the files and records for the
7-22 person are sealed and the municipality in which that court is
7-23 located.
7-24 (g) Inspection of the sealed files and records may be
7-25 permitted thereafter by an order of the juvenile court on the
7-26 petition of a prosecuting attorney or assistant prosecuting
7-27 attorney <the person> who shows good cause to the court.
8-1 Inspection <is the subject> of the files or records may be made
8-2 <and> only by that prosecuting attorney or assistant prosecuting
8-3 attorney <those persons> named in the order.
8-4 (h) <(g)> On the final discharge of a child or on the last
8-5 official action in his case if there is no adjudication, the child
8-6 shall be given a written explanation of his rights under this
8-7 section and a copy of the provisions of this section.
8-8 (i) <(h)> A person whose files and records have been sealed
8-9 and destroyed under this section <Act> is not required in any
8-10 proceeding or in any application for employment, information, or
8-11 licensing to state that the person <he> has been the subject of a
8-12 proceeding under this title <Act;> and any statement that the
8-13 person <he> has never been found to be a delinquent child may not
8-14 <shall never> be held against the person in any criminal or civil
8-15 proceeding.
8-16 <(i) Except as provided by Subsection (j) of this section,
8-17 on the motion of a person in whose name files and records are kept
8-18 or on the court's own motion, the court may order the destruction
8-19 of all files and records concerning a person who has been
8-20 adjudicated to be a child in need of supervision or a delinquent
8-21 child if:>
8-22 <(1) seven years have elapsed since the child's 16th
8-23 birthday; and>
8-24 <(2) the person has not been convicted of a felony.>
8-25 <(j) A court may not order under this section the
8-26 destruction of files and records concerning a person adjudicated as
8-27 having engaged in delinquent conduct that violated a penal law of
9-1 the grade of felony.>
9-2 <(k) A court may not order under this section the sealing of
9-3 files and records concerning a person adjudicated as having engaged
9-4 in delinquent conduct that violated a penal law of the grade of
9-5 felony unless:>
9-6 <(1) the person is 23 years of age or older;>
9-7 <(2) the files and records have not been:>
9-8 <(A) made a part of the person's adult record as
9-9 a result of the use of the files or records after the juvenile
9-10 court under Section 54.02 of this code transferred the person to a
9-11 criminal court for prosecution; or>
9-12 <(B) used as evidence in the punishment phase of
9-13 a criminal proceeding under Section 3(a), Article 37.07, Code of
9-14 Criminal Procedure; and>
9-15 <(3) the person has not been convicted of a penal law
9-16 of the grade of felony after becoming age 17.>
9-17 (j) <(l)> A prosecuting attorney may, by motion before a
9-18 juvenile court, reopen at any time the files and records of a
9-19 person adjudicated as having engaged in delinquent conduct that
9-20 violated a penal law of the grade of felony sealed by the court
9-21 under <Subsection (k) of> this section if, after the court ordered
9-22 the sealing, the person is <indicted for a criminal offense that
9-23 occurred before the person's 23rd birthday or at any time is>
9-24 charged with a capital offense or a felony of the first degree.
9-25 (k) A person who acquires knowledge of an arrest while an
9-26 officer or employee of the state or of any agency or other entity
9-27 of the state or any political subdivision of the state and who
10-1 knows of an order sealing or destroying the records and files
10-2 relating to that arrest has a duty not to release, disseminate, or
10-3 otherwise use the records or files. A person who is subject to an
10-4 order to seal or destroy records or files has a duty to comply with
10-5 the order and with all time limitations set out in the order for
10-6 compliance with the order.
10-7 SECTION 4. Section 3(a), Article 37.07, Code of Criminal
10-8 Procedure, is amended to read as follows:
10-9 (a) Regardless of the plea and whether the punishment be
10-10 assessed by the judge or the jury, evidence may, as permitted by
10-11 the Rules of Evidence, be offered by the state and the defendant as
10-12 to any matter the court deems relevant to sentencing, including the
10-13 prior criminal record of the defendant, his general reputation and
10-14 his character. The term prior criminal record means a final
10-15 conviction in a court of record, or a probated or suspended
10-16 sentence that has occurred prior to trial, or any final conviction
10-17 material to the offense charged. A court may consider as a factor
10-18 in mitigating punishment the conduct of a defendant while
10-19 participating in a program under Article 17.40 or 17.42(a) of this
10-20 code as a condition of release on bail. Additionally,
10-21 notwithstanding Rule 609(d), Texas Rules of Criminal Evidence,
10-22 evidence may be offered by the state and the defendant of an
10-23 adjudication of delinquency based on a violation by the defendant
10-24 of a penal law of the grade of felony subject to Section 51.16,
10-25 Family Code, providing for the sealing and destruction of files and
10-26 records relating to that adjudication <unless:>
10-27 <(1) the adjudication is based on conduct committed
11-1 more than five years before the commission of the offense for which
11-2 the person is being tried; and>
11-3 <(2) in the five years preceding the date of the
11-4 commission of the offense for which the person is being tried, the
11-5 person did not engage in conduct for which the person has been
11-6 adjudicated as a delinquent child or a child in need of supervision
11-7 and did not commit an offense for which the person has been
11-8 convicted>.
11-9 SECTION 5. The heading to Chapter 55, Code of Criminal
11-10 Procedure, is amended to read as follows:
11-11 CHAPTER 55. EXPUNCTION, SEALING, AND DESTRUCTION
11-12 OF CRIMINAL RECORDS
11-13 SECTION 6. Articles 55.01 through 55.05, Code of Criminal
11-14 Procedure, are designated as included in Subchapter A of Chapter 55
11-15 and the heading of that subchapter is added to read as follows:
11-16 SUBCHAPTER A. EXPUNCTION OF RECORDS
11-17 SECTION 7. Chapter 55, Code of Criminal Procedure, is
11-18 amended by adding Subchapter B to read as follows:
11-19 SUBCHAPTER B. SEALING AND DESTRUCTION OF RECORDS FOR
11-20 CRIMES COMMITTED BEFORE AGE 18
11-21 Art. 55.21. SEALING AND DESTRUCTION OF RECORDS. (a) A
11-22 person 23 years of age or older who has been convicted for the
11-23 violation of a penal law of the grade of felony after being
11-24 transferred from a juvenile court to a district court or criminal
11-25 district court under Section 54.02, Family Code, may apply for the
11-26 sealing and destruction of the files and records in the person's
11-27 case as provided by this chapter.
12-1 (b) After final discharge of the person or after the last
12-2 official action in the person's case if there was not a conviction,
12-3 the court shall order the sealing and destruction of a person's
12-4 records under this section if, after a hearing in camera, the court
12-5 finds that on or after the person's 18th birthday the person has
12-6 not been convicted of a felony and is not under indictment for a
12-7 felony offense and that parole, release under supervision, or
12-8 probation of the person has not been revoked because of conduct
12-9 that constitutes a felony offense.
12-10 Art. 55.22. NOTICE OF HEARING. Reasonable notice of the
12-11 hearing must be given to:
12-12 (1) the person who made the application;
12-13 (2) the prosecuting attorney for the district court or
12-14 criminal district court;
12-15 (3) the authority granting the discharge if the final
12-16 discharge was from an institution or from parole;
12-17 (4) the agency or institution having custody of files
12-18 or records named in the application; and
12-19 (5) the law enforcement agency having custody of files
12-20 or records named in the application.
12-21 Art. 55.23. RECORDS SEALING AND DESTRUCTION ORDER. (a)
12-22 Copies of the order requiring the destruction of records shall be
12-23 sent to each agency or official named in the order.
12-24 (b) On entry of the order:
12-25 (1) the files and records of the clerk of the court
12-26 and district court or criminal district court files and records
12-27 shall be ordered sealed;
13-1 (2) all files and records of a law enforcement agency,
13-2 a prosecuting attorney, or a public or private agency or
13-3 institution that are ordered destroyed, except those files and
13-4 records sent to the court, shall be destroyed not later than the
13-5 60th day after receipt of the destruction order, and the entity
13-6 destroying the records shall, not later than the 10th day after the
13-7 destruction, notify the court in writing that the files and records
13-8 have been destroyed;
13-9 (3) the district court or criminal district court,
13-10 clerk of court, prosecuting attorney, public or private agency or
13-11 institution, and law enforcement officers and agencies shall
13-12 properly reply that no record exists with respect to the person who
13-13 is the subject of the order on inquiry in any matter; and
13-14 (4) the conviction shall be vacated and the proceeding
13-15 dismissed and treated for all purposes, including the purpose of
13-16 showing a prior conviction, as if it never occurred.
13-17 Art. 55.24. INFORMATION SENT TO COMPUTERIZED CRIMINAL
13-18 HISTORY SYSTEM. Notwithstanding the entry of an order under this
13-19 section providing for the sealing and destruction of a person's
13-20 criminal records, the court shall provide that the following
13-21 information concerning the person for whom the order was entered is
13-22 recorded in the computerized criminal history system as provided by
13-23 Article 60.053 of this code:
13-24 (1) the name and date of birth of the person;
13-25 (2) a state identification number for the person
13-26 assigned by the Department of Public Safety; and
13-27 (3) the court in which the records for the person are
14-1 sealed and the city in which that court is located.
14-2 Art. 55.25. EXPLANATION OF RIGHTS. On the final discharge
14-3 of the person or on the last official action in the person's case,
14-4 the person shall be given a written explanation of the person's
14-5 rights under this chapter and a copy of the provisions of this
14-6 chapter.
14-7 Art. 55.26. DISCLOSURE OF CONVICTION NOT REQUIRED. A person
14-8 whose files and records have been sealed and destroyed under this
14-9 chapter is not required in any proceeding or in any application for
14-10 employment, information, or licensing to state that the person has
14-11 been the subject of a criminal proceeding. Any statement that the
14-12 person has never been convicted may not be held against the person
14-13 in a criminal or civil proceeding.
14-14 SECTION 8. Chapter 60, Code of Criminal Procedure, is
14-15 amended by adding Article 60.053 to read as follows:
14-16 Art. 60.053. INFORMATION RELATING TO CONDUCT OR OFFENSE
14-17 COMMITTED BY A PERSON BEFORE AGE 18. (a) Notwithstanding any
14-18 other provision of this chapter, the computerized criminal history
14-19 information system shall include the information listed in
14-20 Subsection (b) of this article for a person whose files and records
14-21 are ordered sealed and destroyed under Section 51.16, Family Code,
14-22 or Article 55.21 of this code.
14-23 (b) The criminal history information system shall contain
14-24 only the following information for a person under this section:
14-25 (1) the name and date of birth of the person;
14-26 (2) a state identification number for the person
14-27 assigned by the Department of Public Safety; and
15-1 (3) the court in which the records for the person are
15-2 sealed and the city in which that court is located.
15-3 (c) The information required to be included in the
15-4 computerized criminal history information system under this section
15-5 shall be provided to the Department of Public Safety by a court
15-6 entering an order under Section 51.16, Family Code, or Article
15-7 55.21 of this code. The department shall delete from the system
15-8 any other information contained in the system for a person for whom
15-9 information is included in the system under this section.
15-10 (d) The Texas Department of Criminal Justice shall delete
15-11 from the corrections tracking system any information contained in
15-12 that system for a person included in the computerized criminal
15-13 history system under this section.
15-14 SECTION 9. This Act takes effect September 1, 1993.
15-15 SECTION 10. (a) The change in law made by this Act applies
15-16 only to files and records created with regard to conduct that
15-17 occurs on or after the effective date of this Act. Conduct
15-18 violating a penal law of the state occurs on or after the effective
15-19 date of this Act if every element of the violation occurs on or
15-20 after that date.
15-21 (b) The files and records created with regard to conduct
15-22 that occurs before the effective date of this Act are covered by
15-23 the law in effect at the time the conduct occurred, and the former
15-24 law is continued in effect for that purpose.
15-25 (c) The change in law made by Subchapter B of Chapter 55,
15-26 Code of Criminal Procedure, applies only to the records for an
15-27 offense committed on or after the effective date of this Act. For
16-1 purposes of this section, an offense is committed before the
16-2 effective date of this Act if any element of the offense occurs
16-3 before the effective date.
16-4 (d) The records of an offense committed before the effective
16-5 date of this Act are covered by the law in effect at the time the
16-6 offense was committed, and the former law is continued in effect
16-7 for that purpose.
16-8 SECTION 11. The importance of this legislation and the
16-9 crowded condition of the calendars in both houses create an
16-10 emergency and an imperative public necessity that the
16-11 constitutional rule requiring bills to be read on three several
16-12 days in each house be suspended, and this rule is hereby suspended.