By: De la Garza H.B. No. 357
73R1128 JMM-F
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. Section 51.14, Family Code, as amended by
1-6 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
1-7 Session, 1987, is amended by amending Subsections (a), (b), and (c)
1-8 and adding Subsection (g) to read as follows:
1-9 (a) Except as provided by Subsection (e) of this section,
1-10 all files and records of a juvenile court, a clerk of court, or a
1-11 prosecuting attorney relating to a child who is a party to a
1-12 proceeding under this title are open to inspection only by:
1-13 (1) the judge, probation officers, and professional
1-14 staff or consultants of the juvenile court;
1-15 (2) an attorney for a party to the proceeding;
1-16 (3) a public or private agency or institution
1-17 providing supervision of the child by arrangement of the juvenile
1-18 court, or having custody of the child under juvenile court order;
1-19 <or>
1-20 (4) a law enforcement officer as necessary for the
1-21 discharge of the officer's official duties; or
1-22 (5) with leave of juvenile court, any other person,
1-23 agency, or institution having a legitimate interest in the
1-24 proceeding or in the work of the court.
2-1 (b) All files and records of a public or private agency or
2-2 institution providing supervision of a child by arrangement of the
2-3 juvenile court or having custody of the child under order of the
2-4 juvenile court are open to inspection only by:
2-5 (1) the professional staff or consultants of the
2-6 agency or institution;
2-7 (2) the judge, probation officers, and professional
2-8 staff or consultants of the juvenile court;
2-9 (3) an attorney for the child;
2-10 (4) with leave of the juvenile court, any other
2-11 person, agency, or institution having a legitimate interest in the
2-12 work of the agency or institution; <or>
2-13 (5) the Texas Department of Criminal Justice
2-14 <Corrections>, the Department of Public Safety, and the Texas
2-15 Juvenile Probation Commission, for the purpose of maintaining
2-16 statistical records of recidivism, and for diagnosis and
2-17 classification; or
2-18 (6) a law enforcement officer as necessary for the
2-19 discharge of the officer's official duties.
2-20 (c) Except as provided by this subsection, law-enforcement
2-21 files and records concerning a child shall be kept separate from
2-22 files and records of arrests of adults and shall be maintained on a
2-23 local basis only and not sent to a central state or federal
2-24 depository. The <However, the> law-enforcement files and records
2-25 of a person who is transferred from the Texas Youth Commission to
2-26 the institutional division of the Texas Department of Criminal
2-27 Justice <Corrections> under a determinate sentence may be
3-1 transferred to a central state <or federal> depository for adult
3-2 records on or after the date of transfer. If a child has been
3-3 reported as missing by a parent, guardian, or conservator of that
3-4 child or a child has escaped from the custody of a juvenile
3-5 detention facility, the Texas Youth Commission, or any other agency
3-6 to which the child has been committed, any information or records
3-7 concerning that child may be transferred to and disseminated by the
3-8 Texas Crime Information Center and the National Crime Information
3-9 Center.
3-10 (g) The files and records of a juvenile court, a clerk of
3-11 court, or a prosecuting attorney relating to a child who is a party
3-12 to a proceeding under this title may not be used for enhancement
3-13 purposes in any subsequent criminal proceeding relating to the
3-14 child.
3-15 SECTION 2. Section 51.15, Family Code, as amended by
3-16 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
3-17 Session, 1987, is amended by amending Subsections (a)-(c), (e), and
3-18 (g) to read as follows:
3-19 (a) No child may be fingerprinted without the consent of the
3-20 juvenile court except as provided by this subsection or by
3-21 subsections (f) and (i) of this section. A child's fingerprints
3-22 may be taken and filed by a law-enforcement officer investigating a
3-23 case if:
3-24 (1) the child is 15 years of age or older and is
3-25 referred to the juvenile court for any felony; or
3-26 (2) the child is under 15 years of age and is referred
3-27 to the juvenile court for:
4-1 (A) a felony listed in Section 53.045(a) of this
4-2 code;
4-3 (B) an offense listed in Section 8(c), Article
4-4 42.18, Code of Criminal Procedure; reckless conduct as described
4-5 by Section 22.05, Penal Code; or a terroristic threat, as described
4-6 by Section 22.07, Penal Code;
4-7 (C) the unlawful use, sale, or possession of a
4-8 controlled substance, drug paraphernalia, or marihuana, as defined
4-9 by Chapter 481, Health and Safety Code;
4-10 (D) the unlawful possession of any of the
4-11 weapons or devices listed in Sections 46.01(1)-(14) or (16), Penal
4-12 Code; or
4-13 (E) a criminal offense resulting from
4-14 participation in a criminal street gang defined by Section 71.01,
4-15 Penal Code.
4-16 (b) Except as provided in Subsections (h) and (i) of this
4-17 section, no child taken into custody may be photographed without
4-18 the consent of the juvenile court unless:
4-19 (1) the child is 15 years of age or older and is
4-20 referred to the juvenile court for a felony; or
4-21 (2) the child is under 15 years of age and is referred
4-22 to the juvenile court for:
4-23 (A) a felony listed in Section 53.045(a) of this
4-24 code;
4-25 (B) an offense listed in Section 8(c),
4-26 Article 42.18, Code of Criminal Procedure; reckless conduct as
4-27 described by Section 22.05, Penal Code; or a terroristic threat, as
5-1 described by Section 22.07, Penal Code;
5-2 (C) the unlawful use, sale, or possession of a
5-3 controlled substance, drug paraphernalia, or marihuana, as defined
5-4 by Chapter 481, Health and Safety Code;
5-5 (D) the unlawful possession of any of the
5-6 weapons or devices listed in Sections 46.01(1)-(14) or (16), Penal
5-7 Code; or
5-8 (E) a criminal offense resulting from
5-9 participation in a criminal street gang defined by Section 71.01,
5-10 Penal Code.
5-11 (c) Except as provided by this subsection, fingerprint and
5-12 photograph files or records of children shall be kept separate from
5-13 those of adults<, and fingerprints or photographs known to be those
5-14 of a child shall be maintained on a local basis only and not sent
5-15 to a central state or federal depository>. The <However,>
5-16 fingerprint and photograph files or records of a person who is
5-17 transferred from the Texas Youth Commission to the institutional
5-18 division of the Texas Department of Criminal Justice <Corrections>
5-19 under a determinate sentence may be transferred to adult records on
5-20 or after the date of transfer. If a child has been reported as
5-21 missing by a parent, guardian, or conservator of that child or a
5-22 child has escaped from the custody of a juvenile detention
5-23 facility, the Texas Youth Commission, or any other agency to which
5-24 the child has been committed, the child's fingerprints and
5-25 photograph may be sent to and indexed into the files of the
5-26 Department of Public Safety and the Federal Bureau of Investigation
5-27 to aid in the location and identification of the child.
6-1 (e) A child's fingerprints and photographs that are not
6-2 transferred under Subsection (c) of this section shall be removed
6-3 from files or records and destroyed if the law enforcement agency
6-4 having custody of the fingerprints and photographs receives an
6-5 order to destroy the child's fingerprints and photographs under
6-6 Section 51.16 of this code<:>
6-7 <(1) a petition alleging that the child engaged in
6-8 delinquent conduct or conduct indicating a need for supervision is
6-9 not filed, or the proceedings are dismissed after a petition is
6-10 filed, or the child is found not to have engaged in the alleged
6-11 conduct;>
6-12 <(2) the person reaches 18 years of age, is not
6-13 subject to commitment to the Texas Youth Commission or to transfer
6-14 under a determinate sentence to the Texas Department of
6-15 Corrections, and there is no record that he committed a criminal
6-16 offense after reaching 17 years of age; or>
6-17 <(3) the person is older than 18 years, at least three
6-18 years have elapsed after the person's release from commitment, and
6-19 there is no evidence that he committed a criminal offense after the
6-20 release>.
6-21 (g) When destruction of fingerprints or photographs is
6-22 required by Subsection <(e),> (f)<,> or (h) of this section, the
6-23 agency with custody of the fingerprints or photographs shall
6-24 proceed with destruction without judicial order. However, if the
6-25 fingerprints or photographs are not destroyed, the juvenile court,
6-26 on its own motion or on application by the person fingerprinted or
6-27 photographed, shall order the destruction as required by this
7-1 section.
7-2 SECTION 3. Section 51.16, Family Code, is amended to read as
7-3 follows:
7-4 Sec. 51.16. DESTRUCTION <SEALING> OF FILES AND RECORDS. (a)
7-5 On <Except as provided by Subsection (j) of this section, on> the
7-6 application of a person 21 years of age or older who has been
7-7 found to have engaged in delinquent conduct or conduct indicating a
7-8 need for supervision, or who has been <a person> taken into custody
7-9 to determine whether he engaged in delinquent conduct or conduct
7-10 indicating a need for supervision<, or on the juvenile court's own
7-11 motion>, the court, after hearing, shall order the destruction
7-12 <sealing> of the files and records in the case, including those
7-13 specified in Sections 51.14 and 51.15 of this code, as provided by
7-14 this section <if the court finds that:>
7-15 <(1) two years have elapsed since final discharge of
7-16 the person, or since the last official action in his case if there
7-17 was no adjudication;>
7-18 <(2) since the time specified in Subdivision (1) of
7-19 this subsection, he has not been convicted of a felony or a
7-20 misdemeanor involving moral turpitude or found to have engaged in
7-21 delinquent conduct or conduct indicating a need for supervision,
7-22 and no proceeding is pending seeking conviction or adjudication;
7-23 and>
7-24 <(3) it is unlikely the person will engage in further
7-25 delinquent conduct or conduct indicating a need for supervision or
7-26 will commit a felony or a misdemeanor involving moral turpitude>.
7-27 (b) The court may grant the relief authorized in Subsection
8-1 (a) of this section <at any time> after final discharge of the
8-2 person or after the last official action in the person's <his> case
8-3 if there was no adjudication. The court shall order the
8-4 destruction of a person's records under this section if, after a
8-5 hearing in camera, the court finds that on or after the person's
8-6 18th birthday the person has not been convicted of a felony offense
8-7 and is not under indictment for a felony offense and that parole,
8-8 release under supervision, or probation of the person has not been
8-9 revoked because of conduct that constitutes a felony offense.
8-10 (c) Reasonable notice of the hearing shall be given to:
8-11 (1) the person who made the application <or who is the
8-12 subject of the files or records named in the motion>;
8-13 (2) the prosecuting attorney for the juvenile court;
8-14 (3) the authority granting the discharge if the final
8-15 discharge was from an institution or from parole;
8-16 (4) the public or private agency or institution having
8-17 custody of files or records named in the application <or motion>;
8-18 and
8-19 (5) the law-enforcement agency having custody of files
8-20 or records named in the application <or motion>.
8-21 (d) Copies of the <sealing> order requiring the destruction
8-22 of records shall be sent to each agency or official <therein> named
8-23 in the order.
8-24 (e) On entry of the order:
8-25 (1) all law-enforcement, prosecuting attorney, clerk
8-26 of court, and juvenile court files and records ordered destroyed
8-27 <sealed> shall be sent to the court issuing the order;
9-1 (2) all files and records of a public or private
9-2 agency or institution ordered destroyed <sealed> shall be sent to
9-3 the court issuing the order;
9-4 (3) all index references to the files and records
9-5 ordered destroyed <sealed> shall be deleted;
9-6 (4) the juvenile court, clerk of court, prosecuting
9-7 attorney, public or private agency or institution, and
9-8 law-enforcement officers and agencies shall properly reply that no
9-9 record exists with respect to such person upon inquiry in any
9-10 matter; and
9-11 (5) the adjudication shall be vacated and the
9-12 proceeding dismissed and treated for all purposes, including the
9-13 purpose of showing a prior finding of delinquency, as if it had
9-14 never occurred.
9-15 (f) <Inspection of the sealed files and records may be
9-16 permitted thereafter by an order of the juvenile court on the
9-17 petition of the person who is the subject of the files or records
9-18 and only by those persons named in the order.>
9-19 <(g)> On the final discharge of a child or on the last
9-20 official action in his case if there is no adjudication, the child
9-21 shall be given a written explanation of his rights under this
9-22 section and a copy of the provisions of this section.
9-23 (g) <(h)> A person whose files and records have been
9-24 destroyed <sealed> under this section <Act> is not required in any
9-25 proceeding or in any application for employment, information, or
9-26 licensing to state that the person <he> has been the subject of a
9-27 proceeding under this title <Act;> and any statement that the
10-1 person <he> has never been found to be a delinquent child may not
10-2 <shall never> be held against the person in any criminal or civil
10-3 proceeding.
10-4 <(i) Except as provided by Subsection (j) of this section,
10-5 on the motion of a person in whose name files and records are kept
10-6 or on the court's own motion, the court may order the destruction
10-7 of all files and records concerning a person who has been
10-8 adjudicated to be a child in need of supervision or a delinquent
10-9 child if:>
10-10 <(1) seven years have elapsed since the child's 16th
10-11 birthday; and>
10-12 <(2) the person has not been convicted of a felony.>
10-13 <(j) A court may not order under this section the
10-14 destruction of files and records concerning a person adjudicated as
10-15 having engaged in delinquent conduct that violated a penal law of
10-16 the grade of felony.>
10-17 <(k) A court may not order under this section the sealing of
10-18 files and records concerning a person adjudicated as having engaged
10-19 in delinquent conduct that violated a penal law of the grade of
10-20 felony unless:>
10-21 <(1) the person is 23 years of age or older;>
10-22 <(2) the files and records have not been:>
10-23 <(A) made a part of the person's adult record as
10-24 a result of the use of the files or records after the juvenile
10-25 court under Section 54.02 of this code transferred the person to a
10-26 criminal court for prosecution; or>
10-27 <(B) used as evidence in the punishment phase of
11-1 a criminal proceeding under Section 3(a), Article 37.07, Code of
11-2 Criminal Procedure; and>
11-3 <(3) the person has not been convicted of a penal law
11-4 of the grade of felony after becoming age 17.>
11-5 <(l) A prosecuting attorney may, by motion before a juvenile
11-6 court, reopen at any time the files and records of a person
11-7 adjudicated as having engaged in delinquent conduct that violated a
11-8 penal law of the grade of felony sealed by the court under
11-9 Subsection (k) of this section if, after the court ordered the
11-10 sealing, the person is indicted for a criminal offense that
11-11 occurred before the person's 23rd birthday or at any time is
11-12 charged with a capital offense or a felony of the first degree.>
11-13 SECTION 4. Section 3(a), Article 37.07, Code of Criminal
11-14 Procedure, is amended to read as follows:
11-15 (a) Regardless of the plea and whether the punishment be
11-16 assessed by the judge or the jury, evidence may, as permitted by
11-17 the Rules of Evidence, be offered by the state and the defendant as
11-18 to any matter the court deems relevant to sentencing, including the
11-19 prior criminal record of the defendant, his general reputation and
11-20 his character. The term prior criminal record means a final
11-21 conviction in a court of record, or a probated or suspended
11-22 sentence that has occurred prior to trial, or any final conviction
11-23 material to the offense charged. A court may consider as a factor
11-24 in mitigating punishment the conduct of a defendant while
11-25 participating in a program under Article 17.40 or 17.42(a) of this
11-26 code as a condition of release on bail. <Additionally,
11-27 notwithstanding Rule 609(d), Texas Rules of Criminal Evidence,
12-1 evidence may be offered by the state and the defendant of an
12-2 adjudication of delinquency based on a violation by the defendant
12-3 of a penal law of the grade of felony unless:>
12-4 <(1) the adjudication is based on conduct committed
12-5 more than five years before the commission of the offense for which
12-6 the person is being tried; and>
12-7 <(2) in the five years preceding the date of the
12-8 commission of the offense for which the person is being tried, the
12-9 person did not engage in conduct for which the person has been
12-10 adjudicated as a delinquent child or a child in need of supervision
12-11 and did not commit an offense for which the person has been
12-12 convicted.>
12-13 SECTION 5. The heading to Chapter 55, Code of Criminal
12-14 Procedure, is amended to read as follows:
12-15 CHAPTER 55. EXPUNCTION AND DESTRUCTION OF CRIMINAL RECORDS
12-16 SECTION 6. Articles 55.01 through 55.05, Code of Criminal
12-17 Procedure, are designated as included in Subchapter A of Chapter 55
12-18 and the heading of that subchapter is added to read as follows:
12-19 SUBCHAPTER A. EXPUNCTION OF RECORDS
12-20 SECTION 7. Chapter 55, Code of Criminal Procedure, is
12-21 amended by adding Subchapter B to read as follows:
12-22 SUBCHAPTER B. DESTRUCTION OF RECORDS FOR
12-23 CRIMES COMMITTED BEFORE AGE 18
12-24 Art. 55.21. DESTRUCTION OF RECORDS. (a) A person 21 years
12-25 of age or older who has been convicted for the violation of a penal
12-26 law of the grade of felony after being transferred from a juvenile
12-27 court to a district court or criminal district court under Section
13-1 54.02, Family Code, may apply for the destruction of the files and
13-2 records in the person's case as provided by this chapter.
13-3 (b) After final discharge of the person or after the last
13-4 official action in the person's case if there was no conviction,
13-5 the court shall order the destruction of a person's records under
13-6 this section if, after a hearing in camera, the court finds that on
13-7 or after the person's 18th birthday the person has not been
13-8 convicted of a felony and is not under indictment for a felony
13-9 offense and that parole, release under supervision, or probation of
13-10 the person has not been revoked because of conduct that constitutes
13-11 a felony offense.
13-12 Art. 55.22. NOTICE OF HEARING. Reasonable notice of the
13-13 hearing must be given to:
13-14 (1) the person who made the application;
13-15 (2) the prosecuting attorney for the district court or
13-16 criminal district court;
13-17 (3) the authority granting the discharge if the final
13-18 discharge was from an institution or from parole;
13-19 (4) the agency or institution having custody of files
13-20 or records named in the application; and
13-21 (5) the law enforcement agency having custody of files
13-22 or records named in the application.
13-23 Art. 55.23. RECORDS DESTRUCTION ORDER. (a) Copies of the
13-24 order requiring the destruction of records shall be sent to each
13-25 agency or official named in the order.
13-26 (b) On entry of the order:
13-27 (1) all law enforcement, prosecuting attorney, clerk
14-1 of court, and district court or criminal district court files and
14-2 records ordered destroyed shall be sent to the court issuing the
14-3 order;
14-4 (2) all files and records of a public or private
14-5 agency or institution ordered destroyed shall be sent to the court
14-6 issuing the order;
14-7 (3) all index references to the files and records
14-8 ordered destroyed shall be deleted;
14-9 (4) the district court or criminal district court,
14-10 clerk of court, prosecuting attorney, public or private agency or
14-11 institution, and law enforcement officers and agencies shall
14-12 properly reply that no record exists with respect to the person who
14-13 is the subject of the order on inquiry in any matter; and
14-14 (5) the conviction shall be vacated and the proceeding
14-15 dismissed and treated for all purposes, including the purpose of
14-16 showing a prior conviction, as if it never occurred.
14-17 Art. 55.24. EXPLANATION OF RIGHTS. On the final discharge
14-18 of the person or on the last official action in the person's case,
14-19 the person shall be given a written explanation of the person's
14-20 rights under this chapter and a copy of the provisions of this
14-21 chapter.
14-22 Art. 55.25. DISCLOSURE OF CONVICTION NOT REQUIRED. A person
14-23 whose files and records have been destroyed under this chapter is
14-24 not required in any proceeding or in any application for
14-25 employment, information, or licensing to state that the person has
14-26 been the subject of a criminal proceeding. Any statement that the
14-27 person has never been convicted may not be held against the person
15-1 in a criminal or civil proceeding.
15-2 SECTION 8. This Act takes effect September 1, 1993.
15-3 SECTION 9. (a) The change in law made by this Act applies
15-4 only to files and records created with regard to conduct that
15-5 occurs on or after the effective date of this Act. Conduct
15-6 violating a penal law of the state occurs on or after the effective
15-7 date of this Act if every element of the violation occurs on or
15-8 after that date.
15-9 (b) The files and records created with regard to conduct
15-10 that occurs before the effective date of this Act are covered by
15-11 the law in effect at the time the conduct occurred, and the former
15-12 law is continued in effect for that purpose.
15-13 (c) The change in law made by Subchapter B of Chapter 55,
15-14 Code of Criminal Procedure, applies only to the records for an
15-15 offense committed on or after the effective date of this Act. For
15-16 purposes of this section, an offense is committed before the
15-17 effective date of this Act if every element of the offense occurs
15-18 before the effective date.
15-19 (d) The records of an offense committed before the effective
15-20 date of this Act are covered by the law in effect at the time the
15-21 offense was committed, and the former law is continued in effect
15-22 for that purpose.
15-23 SECTION 10. The importance of this legislation and the
15-24 crowded condition of the calendars in both houses create an
15-25 emergency and an imperative public necessity that the
15-26 constitutional rule requiring bills to be read on three several
15-27 days in each house be suspended, and this rule is hereby suspended.