73R7070 E
By De La Garza, et al. H.B. No. 357
Substitute the following for H.B. No. 357:
By De La Garza C.S.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; or
1-21 (5) with leave of juvenile court, any other person,
1-22 agency, or institution having a legitimate interest in the
1-23 proceeding or in the work of the court.
1-24 (b) All files and records of a public or private agency or
2-1 institution providing supervision of a child by arrangement of the
2-2 juvenile court or having custody of the child under order of the
2-3 juvenile court are open to inspection only by:
2-4 (1) the professional staff or consultants of the
2-5 agency or institution;
2-6 (2) the judge, probation officers, and professional
2-7 staff or consultants of the juvenile court;
2-8 (3) an attorney for the child;
2-9 (4) with leave of the juvenile court, any other
2-10 person, agency, or institution having a legitimate interest in the
2-11 work of the agency or institution; <or>
2-12 (5) the Texas Department of Criminal Justice
2-13 <Corrections>, the Department of Public Safety, and the Texas
2-14 Juvenile Probation Commission, for the purpose of maintaining
2-15 statistical records of recidivism, and for diagnosis and
2-16 classification; or
2-17 (6) a law enforcement officer as necessary for the
2-18 discharge of the officer's official duties.
2-19 (c) Except as provided by this subsection, law-enforcement
2-20 files and records concerning a child shall be kept separate from
2-21 files and records of arrests of adults and shall be maintained on a
2-22 local basis only and not sent to a central state or federal
2-23 depository. The <However, the> law-enforcement files and records
2-24 of a person who is transferred from the Texas Youth Commission to
2-25 the institutional division of the Texas Department of Criminal
2-26 Justice <Corrections> under a determinate sentence may be
2-27 transferred to a central state or federal depository for adult
3-1 records on or after the date of transfer. If a child has been
3-2 reported as missing by a parent, guardian, or conservator of that
3-3 child or a child has escaped from the custody of a juvenile
3-4 detention facility, the Texas Youth Commission, or any other agency
3-5 to which the child has been committed, any information or records
3-6 concerning that child may be transferred to and disseminated by the
3-7 Texas Crime Information Center and the National Crime Information
3-8 Center.
3-9 SECTION 2. Sections 51.15(a)-(c), Family Code, as amended by
3-10 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
3-11 Session, 1987, are amended to read as follows:
3-12 (a) No child may be fingerprinted without the consent of the
3-13 juvenile court except as provided by this subsection or by
3-14 subsections (f) and (i) of this section. A child's fingerprints
3-15 may be taken and filed by a law-enforcement officer investigating a
3-16 case if<:>
3-17 <(1)> the child is <15 years of age or older and is>
3-18 referred to the juvenile court for any felony<; or>
3-19 <(2) the child is under 15 years of age and is
3-20 referred to the juvenile court for a felony listed in Section
3-21 53.045(a) of this code>.
3-22 (b) Except as provided in Subsections (h) and (i) of this
3-23 section, no child taken into custody may be photographed without
3-24 the consent of the juvenile court unless<:>
3-25 <(1)> the child is <15 years of age or older and is>
3-26 referred to the juvenile court for any <a> felony<; or>
3-27 <(2) the child is under 15 years of age and is
4-1 referred to the juvenile court for a felony listed in Section
4-2 53.045(a) of this code>.
4-3 (c) Except as provided by this subsection, fingerprint and
4-4 photograph files or records of children shall be kept separate from
4-5 those of adults<, and fingerprints or photographs known to be those
4-6 of a child shall be maintained on a local basis only and not sent
4-7 to a central state or federal depository>. The <However,>
4-8 fingerprint and photograph files or records of a person who is
4-9 transferred from the Texas Youth Commission to the institutional
4-10 division of the Texas Department of Criminal Justice <Corrections>
4-11 under a determinate sentence may be transferred to adult records on
4-12 or after the date of transfer. If a child has been reported as
4-13 missing by a parent, guardian, or conservator of that child or a
4-14 child has escaped from the custody of a juvenile detention
4-15 facility, the Texas Youth Commission, or any other agency to which
4-16 the child has been committed, the child's fingerprints and
4-17 photograph may be sent to and indexed into the files of the
4-18 Department of Public Safety and the Federal Bureau of Investigation
4-19 to aid in the location and identification of the child.
4-20 SECTION 3. Section 51.16, Family Code, is amended to read as
4-21 follows:
4-22 Sec. 51.16. DESTRUCTION AND SEALING OF FILES AND RECORDS.
4-23 (a) On <Except as provided by Subsection (j) of this section, on>
4-24 the application of a person 23 years of age or older who has been
4-25 found to have engaged in delinquent conduct or conduct indicating a
4-26 need for supervision, or who has been <a person> taken into custody
4-27 to determine whether he engaged in delinquent conduct or conduct
5-1 indicating a need for supervision, or on the juvenile court's own
5-2 motion, the court, after hearing, shall order the sealing and
5-3 destruction of the files and records in the case, including those
5-4 specified in Sections 51.14 and 51.15 of this code, as provided by
5-5 this section, if the court finds that:
5-6 (1) at least five <two> years have elapsed since final
5-7 discharge of the person, or since the last official action in his
5-8 case if there was no adjudication;
5-9 (2) since the time specified in Subdivision (1) of
5-10 this subsection, he has not been convicted of a felony or a
5-11 misdemeanor involving moral turpitude or found to have engaged in
5-12 delinquent conduct or conduct indicating a need for supervision,
5-13 and no proceeding is pending seeking conviction or adjudication;
5-14 and
5-15 (3) it is unlikely the person will engage in further
5-16 delinquent conduct or conduct indicating a need for supervision or
5-17 will commit a felony or a misdemeanor involving moral turpitude.
5-18 (b) The court may grant the relief authorized in Subsection
5-19 (a) of this section at any time after final discharge of the person
5-20 or after the last official action in his case if there was no
5-21 adjudication.
5-22 (c) Reasonable notice of the hearing shall be given to:
5-23 (1) the person who made the application or who is the
5-24 subject of the files or records named in the motion;
5-25 (2) the prosecuting attorney for the juvenile court;
5-26 (3) the authority granting the discharge if the final
5-27 discharge was from an institution or from parole;
6-1 (4) the public or private agency or institution having
6-2 custody of files or records named in the application or motion; and
6-3 (5) the law-enforcement agency having custody of files
6-4 or records named in the application or motion.
6-5 (d) The order shall apply to the files and records relating
6-6 to the person's adjudication and disposition that are in the
6-7 custody of a law enforcement officer or agency, prosecuting
6-8 attorney, clerk of court, juvenile court, or a public or private
6-9 agency or institution. Copies of the <sealing> order requiring the
6-10 sealing and destruction of records shall be sent to each agency or
6-11 official <therein> named in the order.
6-12 (e) On entry of the order:
6-13 (1) all law-enforcement, prosecuting attorney, clerk
6-14 of court, and juvenile court files and records ordered sealed shall
6-15 be sent to the court issuing the order and the court shall seal
6-16 those files and records;
6-17 (2) all files and records of a public or private
6-18 agency or institution ordered destroyed <sealed> shall be sent to
6-19 the court issuing the order and the court shall destroy those files
6-20 and records;
6-21 (3) all index references to the files and records
6-22 ordered destroyed <sealed> shall be deleted;
6-23 (4) the juvenile court, clerk of court, prosecuting
6-24 attorney, public or private agency or institution, and
6-25 law-enforcement officers and agencies shall properly reply that no
6-26 record exists with respect to such person upon inquiry in any
6-27 matter; and
7-1 (5) the adjudication shall be vacated and the
7-2 proceeding dismissed and treated for all purposes, including the
7-3 purpose of showing a prior finding of delinquency, as if it had
7-4 never occurred.
7-5 (f) Notwithstanding the entry of an order under this section
7-6 providing for the sealing and destruction of a person's files and
7-7 records, the court shall provide that the following information
7-8 concerning the person for whom the order was entered is recorded in
7-9 the computerized criminal history system as provided by Article
7-10 60.053, Code of Criminal Procedure:
7-11 (1) the name and date of birth of the person;
7-12 (2) a state identification number for the person
7-13 assigned by the Department of Public Safety; and
7-14 (3) the court in which the files and records for the
7-15 person are sealed and the municipality in which that court is
7-16 located.
7-17 (g) Inspection of the sealed files and records may be
7-18 permitted thereafter by an order of the juvenile court on the
7-19 petition of a prosecuting attorney or assistant prosecuting
7-20 attorney <the person> who shows good cause to the court.
7-21 Inspection <is the subject> of the files or records may be made
7-22 <and> only by that prosecuting attorney or assistant prosecuting
7-23 attorney <those persons> named in the order.
7-24 (h) <(g)> On the final discharge of a child or on the last
7-25 official action in his case if there is no adjudication, the child
7-26 shall be given a written explanation of his rights under this
7-27 section and a copy of the provisions of this section.
8-1 (i) <(h)> A person whose files and records have been sealed
8-2 and destroyed under this section <Act> is not required in any
8-3 proceeding or in any application for employment, information, or
8-4 licensing to state that the person <he> has been the subject of a
8-5 proceeding under this title <Act;> and any statement that the
8-6 person <he> has never been found to be a delinquent child may not
8-7 <shall never> be held against the person in any criminal or civil
8-8 proceeding.
8-9 <(i) Except as provided by Subsection (j) of this section,
8-10 on the motion of a person in whose name files and records are kept
8-11 or on the court's own motion, the court may order the destruction
8-12 of all files and records concerning a person who has been
8-13 adjudicated to be a child in need of supervision or a delinquent
8-14 child if:>
8-15 <(1) seven years have elapsed since the child's 16th
8-16 birthday; and>
8-17 <(2) the person has not been convicted of a felony.>
8-18 <(j) A court may not order under this section the
8-19 destruction of files and records concerning a person adjudicated as
8-20 having engaged in delinquent conduct that violated a penal law of
8-21 the grade of felony.>
8-22 <(k) A court may not order under this section the sealing of
8-23 files and records concerning a person adjudicated as having engaged
8-24 in delinquent conduct that violated a penal law of the grade of
8-25 felony unless:>
8-26 <(1) the person is 23 years of age or older;>
8-27 <(2) the files and records have not been:>
9-1 <(A) made a part of the person's adult record as
9-2 a result of the use of the files or records after the juvenile
9-3 court under Section 54.02 of this code transferred the person to a
9-4 criminal court for prosecution; or>
9-5 <(B) used as evidence in the punishment phase of
9-6 a criminal proceeding under Section 3(a), Article 37.07, Code of
9-7 Criminal Procedure; and>
9-8 <(3) the person has not been convicted of a penal law
9-9 of the grade of felony after becoming age 17.>
9-10 (j) <(l)> A prosecuting attorney may, by motion before a
9-11 juvenile court, reopen at any time the files and records of a
9-12 person adjudicated as having engaged in delinquent conduct that
9-13 violated a penal law of the grade of felony sealed by the court
9-14 under <Subsection (k) of> this section if, after the court ordered
9-15 the sealing, the person is <indicted for a criminal offense that
9-16 occurred before the person's 23rd birthday or at any time is>
9-17 charged with a capital offense or a felony of the first degree.
9-18 SECTION 4. Section 3(a), Article 37.07, Code of Criminal
9-19 Procedure, is amended to read as follows:
9-20 (a) Regardless of the plea and whether the punishment be
9-21 assessed by the judge or the jury, evidence may, as permitted by
9-22 the Rules of Evidence, be offered by the state and the defendant as
9-23 to any matter the court deems relevant to sentencing, including the
9-24 prior criminal record of the defendant, his general reputation and
9-25 his character. The term prior criminal record means a final
9-26 conviction in a court of record, or a probated or suspended
9-27 sentence that has occurred prior to trial, or any final conviction
10-1 material to the offense charged. A court may consider as a factor
10-2 in mitigating punishment the conduct of a defendant while
10-3 participating in a program under Article 17.40 or 17.42(a) of this
10-4 code as a condition of release on bail. Additionally,
10-5 notwithstanding Rule 609(d), Texas Rules of Criminal Evidence,
10-6 evidence may be offered by the state and the defendant of an
10-7 adjudication of delinquency based on a violation by the defendant
10-8 of a penal law of the grade of felony subject to Section 51.16,
10-9 Family Code, providing for the sealing and destruction of files and
10-10 records relating to that adjudication <unless:>
10-11 <(1) the adjudication is based on conduct committed
10-12 more than five years before the commission of the offense for which
10-13 the person is being tried; and>
10-14 <(2) in the five years preceding the date of the
10-15 commission of the offense for which the person is being tried, the
10-16 person did not engage in conduct for which the person has been
10-17 adjudicated as a delinquent child or a child in need of supervision
10-18 and did not commit an offense for which the person has been
10-19 convicted>.
10-20 SECTION 5. The heading to Chapter 55, Code of Criminal
10-21 Procedure, is amended to read as follows:
10-22 CHAPTER 55. EXPUNCTION, SEALING, AND DESTRUCTION
10-23 OF CRIMINAL RECORDS
10-24 SECTION 6. Articles 55.01 through 55.05, Code of Criminal
10-25 Procedure, are designated as included in Subchapter A of Chapter 55
10-26 and the heading of that subchapter is added to read as follows:
10-27 SUBCHAPTER A. EXPUNCTION OF RECORDS
11-1 SECTION 7. Chapter 55, Code of Criminal Procedure, is
11-2 amended by adding Subchapter B to read as follows:
11-3 SUBCHAPTER B. SEALING AND DESTRUCTION OF RECORDS FOR
11-4 CRIMES COMMITTED BEFORE AGE 18
11-5 Art. 55.21. SEALING AND DESTRUCTION OF RECORDS. (a) A
11-6 person 23 years of age or older who has been convicted for the
11-7 violation of a penal law of the grade of felony after being
11-8 transferred from a juvenile court to a district court or criminal
11-9 district court under Section 54.02, Family Code, may apply for the
11-10 sealing and destruction of the files and records in the person's
11-11 case as provided by this chapter.
11-12 (b) After final discharge of the person or after the last
11-13 official action in the person's case if there was not a conviction,
11-14 the court shall order the sealing and destruction of a person's
11-15 records under this section if, after a hearing in camera, the court
11-16 finds that on or after the person's 18th birthday the person has
11-17 not been convicted of a felony and is not under indictment for a
11-18 felony offense and that parole, release under supervision, or
11-19 probation of the person has not been revoked because of conduct
11-20 that constitutes a felony offense.
11-21 Art. 55.22. NOTICE OF HEARING. Reasonable notice of the
11-22 hearing must be given to:
11-23 (1) the person who made the application;
11-24 (2) the prosecuting attorney for the district court or
11-25 criminal district court;
11-26 (3) the authority granting the discharge if the final
11-27 discharge was from an institution or from parole;
12-1 (4) the agency or institution having custody of files
12-2 or records named in the application; and
12-3 (5) the law enforcement agency having custody of files
12-4 or records named in the application.
12-5 Art. 55.23. RECORDS SEALING AND DESTRUCTION ORDER. (a)
12-6 Copies of the order requiring the destruction of records shall be
12-7 sent to each agency or official named in the order.
12-8 (b) On entry of the order:
12-9 (1) all law enforcement, prosecuting attorney, clerk
12-10 of court, and district court or criminal district court files and
12-11 records ordered sealed shall be sent to the court issuing the order
12-12 and the court shall seal those files and records;
12-13 (2) all files and records of a public or private
12-14 agency or institution ordered destroyed shall be sent to the court
12-15 issuing the order and the court shall destroy those files and
12-16 records;
12-17 (3) all index references to the files and records
12-18 ordered destroyed shall be deleted;
12-19 (4) the district court or criminal district court,
12-20 clerk of court, prosecuting attorney, public or private agency or
12-21 institution, and law enforcement officers and agencies shall
12-22 properly reply that no record exists with respect to the person who
12-23 is the subject of the order on inquiry in any matter; and
12-24 (5) the conviction shall be vacated and the proceeding
12-25 dismissed and treated for all purposes, including the purpose of
12-26 showing a prior conviction, as if it never occurred.
12-27 Art. 55.24. INFORMATION SENT TO COMPUTERIZED CRIMINAL
13-1 HISTORY SYSTEM. Notwithstanding the entry of an order under this
13-2 section providing for the sealing and destruction of a person's
13-3 criminal records, the court shall provide that the following
13-4 information concerning the person for whom the order was entered is
13-5 recorded in the computerized criminal history system as provided by
13-6 Article 60.053 of this code:
13-7 (1) the name and date of birth of the person;
13-8 (2) a state identification number for the person
13-9 assigned by the Department of Public Safety; and
13-10 (3) the court in which the records for the person are
13-11 sealed and the city in which that court is located.
13-12 Art. 55.25. EXPLANATION OF RIGHTS. On the final discharge
13-13 of the person or on the last official action in the person's case,
13-14 the person shall be given a written explanation of the person's
13-15 rights under this chapter and a copy of the provisions of this
13-16 chapter.
13-17 Art. 55.26. DISCLOSURE OF CONVICTION NOT REQUIRED. A person
13-18 whose files and records have been sealed and destroyed under this
13-19 chapter is not required in any proceeding or in any application for
13-20 employment, information, or licensing to state that the person has
13-21 been the subject of a criminal proceeding. Any statement that the
13-22 person has never been convicted may not be held against the person
13-23 in a criminal or civil proceeding.
13-24 SECTION 8. Chapter 60, Code of Criminal Procedure, is
13-25 amended by adding Article 60.053 to read as follows:
13-26 Art. 60.053. INFORMATION RELATING TO CONDUCT OR OFFENSE
13-27 COMMITTED BY A PERSON BEFORE AGE 18. (a) Notwithstanding any
14-1 other provision of this chapter, the computerized criminal history
14-2 information system shall include the information listed in
14-3 Subsection (b) of this article for a person whose files and records
14-4 are ordered sealed and destroyed under Section 51.16, Family Code,
14-5 or Article 55.21 of this code.
14-6 (b) The criminal history information system shall contain
14-7 only the following information for a person under this section:
14-8 (1) the name and date of birth of the person;
14-9 (2) a state identification number for the person
14-10 assigned by the Department of Public Safety; and
14-11 (3) the court in which the records for the person are
14-12 sealed and the city in which that court is located.
14-13 (c) The information required to be included in the
14-14 computerized criminal history information system under this section
14-15 shall be provided to the Department of Public Safety by a court
14-16 entering an order under Section 51.16, Family Code, or Article
14-17 55.21 of this code. The department shall delete from the system
14-18 any other information contained in the system for a person for whom
14-19 information is included in the system under this section.
14-20 (d) The Texas Department of Criminal Justice shall delete
14-21 from the corrections tracking system any information contained in
14-22 that system for a person included in the computerized criminal
14-23 history system under this section.
14-24 SECTION 9. This Act takes effect September 1, 1993.
14-25 SECTION 10. (a) The change in law made by this Act applies
14-26 only to files and records created with regard to conduct that
14-27 occurs on or after the effective date of this Act. Conduct
15-1 violating a penal law of the state occurs on or after the effective
15-2 date of this Act if every element of the violation occurs on or
15-3 after that date.
15-4 (b) The files and records created with regard to conduct
15-5 that occurs before the effective date of this Act are covered by
15-6 the law in effect at the time the conduct occurred, and the former
15-7 law is continued in effect for that purpose.
15-8 (c) The change in law made by Subchapter B of Chapter 55,
15-9 Code of Criminal Procedure, applies only to the records for an
15-10 offense committed on or after the effective date of this Act. For
15-11 purposes of this section, an offense is committed before the
15-12 effective date of this Act if any element of the offense occurs
15-13 before the effective date.
15-14 (d) The records of an offense committed before the effective
15-15 date of this Act are covered by the law in effect at the time the
15-16 offense was committed, and the former law is continued in effect
15-17 for that purpose.
15-18 SECTION 11. The importance of this legislation and the
15-19 crowded condition of the calendars in both houses create an
15-20 emergency and an imperative public necessity that the
15-21 constitutional rule requiring bills to be read on three several
15-22 days in each house be suspended, and this rule is hereby suspended.