By De La Garza H.B. No. 213
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, or
1-9 by Article 15.27, Code of Criminal Procedure, all files and records
1-10 of a juvenile court, a clerk of court, or a prosecuting attorney
1-11 relating to a child who is a party to a proceeding under this title
1-12 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 purpose of verifying the child's identity or court orders related
1-22 to the child's placement in the agency or institution; or
1-23 (5) 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 purpose of verifying the child's identity or court orders related
2-22 to the child's placement in the agency or institution.
2-23 (c) Except as provided by this subsection, law-enforcement
2-24 files and records concerning a child shall be kept separate from
2-25 files and records of arrests of adults and shall be maintained on a
3-1 local basis only and not sent to a central state or federal
3-2 depository. The law-enforcement files and records of a person who
3-3 is transferred from the Texas Youth Commission to the institutional
3-4 division of the Texas Department of Criminal Justice <Corrections>
3-5 under a determinate sentence may be transferred to a central state
3-6 or federal depository for adult records on or after the date of
3-7 transfer. If a child has been reported as missing by a parent,
3-8 guardian, or conservator of that child, has escaped from the
3-9 custody of a juvenile detention facility, the Texas Youth
3-10 Commission, or any other agency to which the child has been
3-11 committed, or is the subject of a search warrant or felony arrest
3-12 warrant issued by a court after the child has fled the jurisdiction
3-13 of the court, any information or records concerning that child may
3-14 be transferred to an disseminated by the Texas Crime Information
3-15 Center and the National Crime Information Center.
3-16 SECTION 2. Sections 51.15(a)-(c), Family Code, as amended by
3-17 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
3-18 Session, 1987, are amended 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>
4-1 <(2) the child is under 15 years of age and is
4-2 referred to the juvenile court for a felony listed in Section
4-3 53.045(a) of this code>.
4-4 (b) Except as provided in Subsections (h) and (i) of this
4-5 section, no child taken into custody may be photographed without
4-6 the consent of the juvenile court unless<:>
4-7 <(1)> the child is <15 years of age or older and is>
4-8 referred to the juvenile court for any <a> felony<; or>
4-9 <(2) the child is under 15 years of age and is
4-10 referred to the juvenile court for a felony listed in Section
4-11 53.045(a) of this code>.
4-12 (c) Except as provided by this subsection, fingerprint and
4-13 photograph files or records of children shall be kept separate from
4-14 those of adults <and fingerprints or photographs known to be those
4-15 of a child shall be maintained on a local basis only and not sent
4-16 to a central state or federal depository>. If a child has been
4-17 reported as missing by a parent, guardian, or conservator of that
4-18 child or a child has escaped from the custody of a juvenile
4-19 detention facility, the Texas Youth Commission, or any other agency
4-20 to which the child has been committed, the child's fingerprints and
4-21 photograph may be sent to and indexed into the files of the
4-22 Department of Public Safety and the Federal Bureau of Investigation
4-23 to aid in the location and identification of the child.
4-24 SECTION 3. Section 51.16, Family Code, is amended to read as
4-25 follows:
5-1 Section 51.16. DESTRUCTION AND SEALING OF FILES AND RECORDS.
5-2 (a) On <Except as provided by Subsection (j) of this
5-3 section, on> the application of a person 23 years of age or older
5-4 who has been found to have engaged in delinquent conduct or conduct
5-5 indicating a need for supervision, or who has been <a person> taken
5-6 into custody to determine whether he engaged in delinquent conduct
5-7 or conduct indicating a need for supervision, or on the juvenile
5-8 court's own motion, the court, after hearing, shall order the
5-9 sealing or destruction of the files and records in the case,
5-10 including those specified in Sections 51.14 and 51.15 of this code,
5-11 as provided by this section, if the court finds that:
5-12 (1) at least five <two> years have elapsed since final
5-13 discharge of the person, or since the last official action in his
5-14 case if there was no adjudication;
5-15 (2) since the time specified in Subdivision (1) of
5-16 this subsection, he has not been convicted of a felony or a
5-17 misdemeanor involving moral turpitude or found to have engaged in
5-18 delinquent conduct or conduct indicating a need for supervision,
5-19 and no proceeding is pending seeking conviction or adjudication;
5-20 and
5-21 (3) it is unlikely the person will engage in further
5-22 delinquent conduct or conduct indicating a need for supervision or
5-23 will commit a felony or a misdemeanor involving moral turpitude.
5-24 (b) The court may grant the relief authorized in Subsection
5-25 (a) of this section at any time after final discharge of the person
6-1 or after the last official action in his case if there was no
6-2 adjudication.
6-3 (c) Reasonable notice of the hearing shall be given to:
6-4 (1) the person who made the application or who is the
6-5 subject of the files or records named in the motion;
6-6 (2) the prosecuting attorney for the juvenile court;
6-7 (3) the authority granting the discharge if the final
6-8 discharge was from an institution or from parole;
6-9 (4) the public or private agency or institution having
6-10 custody of files or records named in the application or motion; and
6-11 (5) the law-enforcement agency having custody of files
6-12 or records named in the application or motion.
6-13 (d) The order of destruction shall apply to the duplicate
6-14 files and records relating to the person's adjudication and
6-15 disposition that are in the custody of a law enforcement officer or
6-16 agency, a prosecuting attorney, or a public or private agency or
6-17 institution. Copies of the <sealing> order requiring the
6-18 destruction of records shall be sent to each agency or official
6-19 <therein> named in the order. The files and records in the custody
6-20 of the clerk of the court or juvenile court shall be ordered sealed
6-21 and shall be the only files and records not ordered destroyed or
6-22 subject to an order of destruction.
6-23 (e) On entry of the order:
6-24 (1) all law-enforcement, prosecuting attorney, clerk
6-25 of court, and juvenile court files and records ordered sealed shall
7-1 be sent to the court issuing the order and the court shall seal
7-2 those files and records;
7-3 (2) all files and records of a public or private
7-4 agency or institution ordered destroyed <sealed> shall be sent to
7-5 the court issuing the order and the court shall destroy those files
7-6 and records;
7-7 (3) all index references to the files and records
7-8 ordered destroyed <sealed> shall be deleted;
7-9 (4) the juvenile court, clerk of court, prosecuting
7-10 attorney, public or private agency or institution, and
7-11 law-enforcement officers and agencies shall properly reply that no
7-12 record exists with respect to such person upon inquiry in any
7-13 matter; and
7-14 (5) the adjudication shall be vacated and the
7-15 proceeding dismissed and treated for all purposes, including the
7-16 purpose of showing a prior finding of delinquency, as if it had
7-17 never occurred.
7-18 (f) Notwithstanding the entry of an order under this section
7-19 providing for the destruction of a person's files and records, the
7-20 court shall provide that the following information concerning the
7-21 person for whom the order was entered is recorded in the
7-22 computerized criminal history system as provided by Article 60.053,
7-23 Code of Criminal Procedure:
7-24 (1) the name and date of birth of the person;
7-25 (2) a state identification number for the person
8-1 assigned by the Department of Public Safety; and
8-2 (3) the court in which the files and records for the
8-3 person are sealed and the municipality in which that court is
8-4 located.
8-5 (g) Inspection of the sealed files and records may be
8-6 permitted thereafter by an order of the juvenile court on the
8-7 petition of a prosecuting attorney or assistant prosecuting
8-8 attorney <the person> who shows good cause to the court.
8-9 Inspection <is the subject> of the files or records may be made
8-10 <and> only by that prosecuting attorney or assistant prosecuting
8-11 attorney <those persons> names in the order.
8-12 (h) <(g)> On the final discharge of a child or on the last
8-13 official action in his case if there is no adjudication, the child
8-14 shall be given a written explanation of his rights under this
8-15 section and a copy of the provisions of this section.
8-16 (i) <(h)> A person whose files and records have been sealed
8-17 and destroyed under this section <Act> is not required in any
8-18 proceeding or in any application for employment, information, or
8-19 licensing to state that the person <he> has been the subject of a
8-20 proceeding under this title <Act;> and any statement that the
8-21 person <he> has never been found to be a delinquent child may not
8-22 <shall never> be held against the person in any criminal or civil
8-23 proceeding.
8-24 <(i) Except as provided by Subsection (j) of this section,
8-25 on the motion of a person in whose name files and records are kept
9-1 or on the court's own motion, the court may order the destruction
9-2 of all files and records concerning a person who has been
9-3 adjudicated to be a child in need of supervision or a delinquent
9-4 child if:
9-5 (1) seven years have elapsed since the child's 16th
9-6 birthday, and
9-7 (2) the person has not been convicted of a felony.
9-8 (j) A court may not order under this section the destruction
9-9 of files and records concerning a person adjudicated as having
9-10 engaged in delinquent conduct that violated a penal law of the
9-11 grade of felony.
9-12 (k) A court may not order under this section the sealing of
9-13 files and records concerning a person adjudicated as having engaged
9-14 in delinquent conduct that violated a penal law of the grade of
9-15 felony unless:
9-16 (1) the person is 23 years of age or older;
9-17 (2) the files and records have not been:
9-18 (A) made a part of the person's adult record as
9-19 a result of the use of the files or records after the juvenile
9-20 court under Section 54.02 of this code transferred the person to a
9-21 criminal court for prosecution; or
9-22 (B) used as evidence in the punishment phase of
9-23 a criminal proceeding under Section 3(a), Article 37.07, Code of
9-24 Criminal Procedure; and
9-25 (3) the person has not been convicted of a penal law
10-1 of the grade of felony after becoming age 17.>
10-2 (j) A court may not order under this subsection the sealing
10-3 of files and records concerning a person adjudicated as having
10-4 engaged in delinquent conduct that violated a penal law of the
10-5 grade of felony unless:
10-6 (1) the person is 23 years of age or older,
10-7 (2) the files and records have not been:
10-8 (A) made a part of the person's adult record as
10-9 a result of the use of the files of records after the juvenile
10-10 court under Section 54.02 of this code transferred the person to a
10-11 criminal court for prosecution, or
10-12 (B) used the evidence in the punishment phase of
10-13 a criminal proceeding under section 3(a), Article 37.07, code of
10-14 Criminal Procedure, and
10-15 (C) the provisions of Section 51.16 have been
10-16 met.
10-17 (k) <(l)> A prosecuting attorney may, by motion before a
10-18 juvenile court, reopen at any time the files and records of a
10-19 person adjudicated as having engaged in delinquent conduct that
10-20 violated a penal law of the grade of felony sealed by the court
10-21 under <Subsection (k)> this section if, after the court ordered the
10-22 sealing, the person is <indicted for a criminal offense that
10-23 occurred before the person's 23rd birthday or at any time is>
10-24 charged with a capital offense or a felony of the first degree.
10-25 (l) A person who acquires knowledge of an arrest while an
11-1 officer or employee of the state or of any agency or other entity
11-2 of the state or any political subdivision of the state and who
11-3 knows of an order sealing or destroying the records and files
11-4 relating to that arrest has a duty not to release, disseminate, or
11-5 otherwise use the records or files. A person who is subject to an
11-6 order to seal or destroy records or files has a duty to comply with
11-7 the order and with all time limitations set out in the order for
11-8 compliance with the order.
11-9 SECTION 4. Section 3(a), Article 37.07, Code of Criminal
11-10 Procedure, is amended to read as follows:
11-11 (a) Regardless of the plea and whether the punishment be
11-12 assessed by the judge or the jury, evidence may be offered by the
11-13 state and the defendant as to any matter the court deems relevant
11-14 to sentencing, including but not limited to the prior criminal
11-15 record of the defendant, his general reputation, his character, an
11-16 opinion regarding his character, the circumstances of the offense
11-17 for which he is being tried, and, notwithstanding Rules 404 and
11-18 405, Texas Rules of Criminal Evidence, any other evidence of an
11-19 extraneous crime or bad act that is shown beyond a reasonable doubt
11-20 by evidence to have been committed by the defendant or for which he
11-21 could be held criminally responsible, regardless of whether he has
11-22 previously been charged with or finally convicted of the crime or
11-23 act. A court may consider as a factor in mitigating punishment the
11-24 conduct of a defendant while participating in a program under
11-25 Chapter 17 of this code as a condition of release on bail.
12-1 Additionally, notwithstanding Rule 609(d), Texas Rules of Criminal
12-2 Evidence, evidence may be offered by the state and the defendant of
12-3 an adjudication of delinquency based on a violation by the
12-4 defendant of a penal law of the grade of felony subject to section
12-5 51.16, Family Code, providing for the sealing and destruction of
12-6 files and records relating to that adjudication <unless:>
12-7 <(1) the adjudication is based on conduct committed
12-8 more than five years before the commission of the offense for which
12-9 the person is being tried; and>
12-10 <(2) in the five years preceding the date of the
12-11 commission of the offense for which the person is being tried, the
12-12 person did not engage in conduct for which the person has been
12-13 adjudicated as a delinquent child or a child in need of supervision
12-14 and did not commit an offense for which the person has been
12-15 convicted>.
12-16 SECTION 5. The heading to Chapter 55, Code of Criminal
12-17 Procedure, is amended to read as follows:
12-18 CHAPTER 55. EXPUNCTION, SEALING, AND DESTRUCTION
12-19 OF CRIMINAL RECORDS
12-20 SECTION 6. Articles 55.01 through 55.05, Code of Criminal
12-21 Procedure, are designated as included in Subchapter A of Chapter 55
12-22 and the heading of that subchapter is added to read as follows:
12-23 SUBCHAPTER A. EXPUNCTION OF RECORDS
12-24 SECTION 7. Chapter 55, Code of Criminal Procedure, is
12-25 amended by adding Subchapter B to read as follows:
13-1 SUBCHAPTER B. SEALING AND DESTRUCTION OF RECORDS FOR
13-2 CRIMES COMMITTED BEFORE AGE 17
13-3 Art. 55.21. SEALING AND DESTRUCTION OF RECORDS. (a) A
13-4 person 23 years of age or older whose case was transferred from a
13-5 juvenile court to a district court or criminal district court under
13-6 Section 54.02, Family Code, may apply for the sealing and
13-7 destruction of the files and records in the person's case as
13-8 provided by this chapter if the case has not resulted in a
13-9 conviction or a deferred adjudication.
13-10 (b) After final discharge of the person or after the last
13-11 official action in the person's case if there was not a conviction,
13-12 the court shall order the sealing and destruction of a person's
13-13 records under this section if the court finds that on or after the
13-14 person's 17th birthday the person has not been convicted of a
13-15 felony and is not under indictment for a felony offense and that
13-16 parole, release under supervision, or probation of the person has
13-17 not been revoked because of conduct that constitutes a felony
13-18 offense.
13-19 (c) A court may not order under this article the sealing of
13-20 files and records unless:
13-21 (1) the person is 23 years of age or older;
13-22 (2) the files and records have not been:
13-23 (A) made the part of the person's adult record
13-24 because of an adult conviction as a result of the use of the files
13-25 or records after the juvenile court transferred the person to a
14-1 criminal court for a prosecution under Section 54.02, Family Code,
14-2 or transferred the person to the Texas Department of Criminal
14-3 Justice - Institutional Division under Section 54.11(i)(2), Family
14-4 Code; or
14-5 (B) used as evidence in the punishment phase of
14-6 a criminal proceeding under Section 3(a), Article 37.07, Code of
14-7 Criminal Procedure.
14-8 (d) A prosecuting attorney may, by motion before a juvenile
14-9 court, reopen at any time the files and records sealed by the court
14-10 under this article if, after the court has ordered the sealing, the
14-11 person is indicted for a criminal offense that occurred before the
14-12 person's 23rd birthday or at any time is charged with a capital
14-13 offense or a felony of the first degree.
14-14 Art. 55.22. NOTICE OF HEARING. Reasonable notice of the
14-15 hearing must be given to:
14-16 (1) the person who made the application;
14-17 (2) the prosecuting attorney for the district court or
14-18 criminal district court;
14-19 (3) the authority granting the discharge if the final
14-20 discharge was from an institution or from parole;
14-21 (4) the agency or institution having custody of files
14-22 or records named in the application; and
14-23 (5) the law enforcement agency having custody of files
14-24 or records named in the application.
14-25 Art. 55.23. RECORDS SEALING AND DESTRUCTION ORDER. (a)
15-1 Copies of the order requiring the destruction or records shall be
15-2 sent to each agency or official named in the order.
15-3 (b) On entry of the order:
15-4 (1) the files and records of the clerk of the court
15-5 and district court or criminal district court files and records
15-6 shall be ordered sealed;
15-7 (2) all files and records of a law enforcement agency,
15-8 a prosecuting attorney, or a public or private agency or
15-9 institution that are ordered destroyed, except those files and
15-10 records sent to the court, shall be destroyed not later than the
15-11 60th day after receipt of the destruction order, and the entity
15-12 destroying the records shall, not later than the 10th day after the
15-13 destruction, notify the court in writing that the files and records
15-14 have been destroyed; and
15-15 (3) the district court or criminal district court,
15-16 clerk of court, prosecuting attorney, public or private agency or
15-17 institution, and law enforcement officers and agencies shall
15-18 properly reply that no record exists with respect to the person who
15-19 is the subject of the order on inquiry in any matter; and
15-20 (4) the conviction shall be vacated and the proceeding
15-21 dismissed and treated for all purposes, including the purpose of
15-22 showing a prior conviction, as if it never occurred.
15-23 Art. 55.24. INFORMATION SENT TO COMPUTERIZED CRIMINAL
15-24 HISTORY SYSTEM. Notwithstanding the entry of an order under this
15-25 section providing for the sealing and destruction of a person's
16-1 criminal records, the court shall provide that the following
16-2 information concerning the person for whom the order was entered is
16-3 recorded in the computerized criminal history system as provided by
16-4 Article 60.053 of this code:
16-5 (1) the name and date of birth of the person;
16-6 (2) a state identification number for the person
16-7 assigned by the Department of Public Safety; and
16-8 (3) the court in which the records for the person are
16-9 sealed and the city in which that court is located.
16-10 Art. 55.25. EXPLANATION OF RIGHTS. On the final discharge
16-11 of the person or on the last official action in the person's case,
16-12 the person shall be given a written explanation of the person's
16-13 rights under this chapter and a copy of the provisions of this
16-14 chapter.
16-15 Art. 55.26. DISCLOSURE OF CONVICTION NOT REQUIRED. A person
16-16 whose files and records have been sealed and destroyed under this
16-17 chapter is not required in any proceeding or in any application for
16-18 employment, information, or licensing to state that the person has
16-19 been the subject of a criminal proceeding. Any statement that the
16-20 person has never been convicted may not be held against the person
16-21 in a criminal or civil proceeding.
16-22 SECTION 8. Chapter 60, Code of Criminal Procedure, is
16-23 amended by adding Article 60.053 to read as follows:
16-24 Art. 60.053. INFORMATION RELATING TO CONDUCT OR OFFENSE
16-25 COMMITTED BY A PERSON BEFORE AGE 17. (a) Notwithstanding any
17-1 other provision of this chapter, the computerized criminal history
17-2 information system shall include the information listed in
17-3 Subsection (b) of this article for a person whose files and records
17-4 are ordered sealed and destroyed under Section 51.16, Family Code,
17-5 or Article 55.21 of this code.
17-6 (b) The criminal history information system shall contain
17-7 only the following information for a person under this section:
17-8 (1) the name and date of birth of the person;
17-9 (2) a state identification number for the person
17-10 assigned by the Department of Public Safety; and
17-11 (3) the court in which the records for the person are
17-12 sealed and the city in which that court is located.
17-13 (c) The information required to be included in the
17-14 computerized criminal history information system under this section
17-15 shall be provided to the Department of Public Safety by a court
17-16 entering an order under Section 51.16, Family Code, or Article
17-17 55.21 of this code. The department shall delete from the system
17-18 any other information contained in the system for a person for whom
17-19 information is included in the system under this section.
17-20 (d) The Texas Department of Criminal Justice shall delete
17-21 from the corrections tracking system any information contained in
17-22 that system for a person included in the computerized criminal
17-23 history system under this section.
17-24 SECTION 9. This Act takes effect September 1, 1995.
17-25 SECTION 10. (a) The change in law made by this Act applies
18-1 only to files and records created with regard to conduct that
18-2 occurs on or after the effective date of this Act. Conduct
18-3 violating a penal law of the state occurs on or after the effective
18-4 date of this Act if every element of the violation occurs on or
18-5 after that date.
18-6 (b) The files and records created with regard to conduct
18-7 that occurs before the effective date of this act are covered by
18-8 the law in effect at the time the conduct occurred, and the former
18-9 law is continued in effect for that purpose.
18-10 (c) The change in law made by Subchapter B of Chapter 55,
18-11 Code of Criminal Procedure, applies only to the records for an
18-12 offense committed on or after the effective date of this Act. For
18-13 purposes of this section, an offense is committed before the
18-14 effective date of this Act if any element of the offense occurs
18-15 before the effective date.
18-16 (d) The records of an offense committed before the effective
18-17 date of this Act are covered by the law in effect at the time the
18-18 offense was committed, and the former law is continued in effect
18-19 for that purpose.
18-20 SECTION 11. The importance of this legislation and the
18-21 crowded condition of the calendars in both houses create an
18-22 emergency and an imperative public necessity that the
18-23 constitutional rule requiring bills to be read on three several
18-24 days in each house be suspended, and this rule is hereby suspended.