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.