By Place H.B. No. 1288
74R3809 DD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the files and records of children who engage in
1-3 delinquent conduct or conduct indicating a need for supervision.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 51.14(b) and (c), Family Code, are
1-6 amended to read as follows:
1-7 (b) All files and records of a public or private agency or
1-8 institution providing supervision of a child by arrangement of the
1-9 juvenile court or having custody of the child under order of the
1-10 juvenile court are open to inspection only by:
1-11 (1) the professional staff or consultants of the
1-12 agency or institution;
1-13 (2) the judge, probation officers, and professional
1-14 staff or consultants of the juvenile court;
1-15 (3) an attorney for the child;
1-16 (4) with leave of the juvenile court, any other
1-17 person, agency, or institution having a legitimate interest in the
1-18 work of the agency or institution; <or>
1-19 (5) the institutional division of the Texas Department
1-20 of Criminal Justice <Corrections>, the Department of Public Safety,
1-21 and the Texas Juvenile Probation Commission, for the purpose of
1-22 maintaining statistical records of recidivism, and for diagnosis
1-23 and classification;
1-24 (6) the professional staff and consultants of the
2-1 agency or institution; or
2-2 (7) a law-enforcement agency for the purpose of:
2-3 (A) identifying a child taken into custody for
2-4 delinquent conduct or conduct indicating a need for supervision; or
2-5 (B) determining a child's location, status, or
2-6 supervising authority.
2-7 (c) Except as provided by this subsection, law-enforcement
2-8 files and records concerning a child shall be kept separate from
2-9 files and records of arrests of adults. Copies of the
2-10 law-enforcement files and records may <and shall> be maintained
2-11 locally, but the original files and records shall be <on a local
2-12 basis only and not> sent to a central state <or federal> depository
2-13 maintained under Section 51.1501 by the Department of Public Safety
2-14 of the State of Texas. A law-enforcement agency that maintains on
2-15 a local basis law-enforcement files and records concerning a child
2-16 shall notify the Department of Public Safety in writing that the
2-17 agency has maintained copies of law-enforcement files and records
2-18 sent to the department under this subsection. The law-enforcement
2-19 files and records of a person who is transferred from the Texas
2-20 Youth Commission to the institutional division of the Texas
2-21 Department of Criminal Justice <Corrections> under a determinate
2-22 sentence may be transferred to a central state or federal
2-23 depository for adult records on or after the date of transfer. If
2-24 a child has been reported as missing by a parent, guardian, or
2-25 conservator of that child, has escaped from the custody of a
2-26 juvenile detention facility, the Texas Youth Commission, or any
2-27 other agency to which the child has been committed, or is the
3-1 subject of a bench warrant or felony arrest warrant issued by a
3-2 court after the child has fled the jurisdiction of the court, any
3-3 information or records concerning that child may be transferred to
3-4 and disseminated by the Texas Crime Information Center and the
3-5 National Crime Information Center.
3-6 SECTION 2. Sections 51.15(a)-(c), (e), and (f), Family
3-7 Code, as amended by Chapters 385, 515, and 576, Acts of the 70th
3-8 Legislature, Regular Session, 1987, are amended to read as follows:
3-9 (a) No child may be fingerprinted without the consent of the
3-10 juvenile court except as provided by this subsection or by
3-11 Subsections (f) and (i) of this section. A child's fingerprints
3-12 may be taken and filed by a law-enforcement officer investigating
3-13 a case if<:>
3-14 <(1)> the child is <15 years of age or older and is>
3-15 referred to the juvenile court for conduct that constitutes a
3-16 <any> felony<;> or a misdemeanor punishable by confinement in jail
3-17 <(2) the child is under 15 years of age and is
3-18 referred to the juvenile court for a felony listed in Section
3-19 53.045(a) of this code>.
3-20 (b) Except as provided in Subsections (h) and (i) of this
3-21 section, no child taken into custody may be photographed without
3-22 the consent of the juvenile court unless<:>
3-23 <(1)> the child is <15 years of age or older and is>
3-24 referred to the juvenile court for conduct that constitutes a
3-25 felony<;> or a misdemeanor punishable by confinement in jail
3-26 <(2) the child is under 15 years of age and is
3-27 referred to the juvenile court for a felony listed in Section
4-1 53.045(a) of this code>.
4-2 (c) Except as provided by this subsection, fingerprint and
4-3 photograph files or records of children shall be kept separate
4-4 from those of adults<,> and shall be treated as provided for
4-5 law-enforcement files and records under Section 51.14(c)
4-6 <fingerprints or photographs known to be those of a child shall be
4-7 maintained on a local basis only and not sent to a central state or
4-8 federal depository>. The <However,> fingerprint and photograph
4-9 files or records of a person who is transferred from the Texas
4-10 Youth Commission to the institutional division of the Texas
4-11 Department of Criminal Justice <Corrections> under a determinate
4-12 sentence may be transferred to adult records on or after the date
4-13 of transfer. A child's <If a child has been reported as missing
4-14 by a parent, guardian, or conservator of that child or a child has
4-15 escaped from the custody of a juvenile detention facility, the
4-16 Texas Youth Commission, or any other agency to which the child has
4-17 been committed, the child's> fingerprints and photograph may be
4-18 sent to and indexed into the files of the Department of Public
4-19 Safety and the Federal Bureau of Investigation to aid in the
4-20 location and identification of the child if the child:
4-21 (1) is younger than 18 years of age and has been
4-22 reported as missing by a parent, guardian, or conservator of that
4-23 child;
4-24 (2) is a child who has escaped from the custody of a
4-25 juvenile detention facility to which the child has been committed;
4-26 or
4-27 (3) has escaped from the custody of the Texas Youth
5-1 Commission <child>.
5-2 (e) A child's fingerprints and photographs that are not
5-3 transferred under Subsection (c) of this section shall be removed
5-4 from files or records and destroyed if:
5-5 (1) a petition alleging that the child engaged in
5-6 delinquent conduct or conduct indicating a need for supervision is
5-7 not filed, or the proceedings are dismissed after a petition is
5-8 filed, or the child is found not to have engaged in the alleged
5-9 conduct;
5-10 (2) the person reaches 23 <18> years of age<, is not
5-11 subject to commitment to the Texas Youth Commission or to transfer
5-12 under a determinate sentence to the Texas Department of
5-13 Corrections,> and there is no record that the person <he>
5-14 committed a criminal offense after reaching 17 years of age; or
5-15 (3) the person was committed to the Texas Youth
5-16 Commission, the person is at least 23 years of age <older than 18
5-17 years>, at least three years have elapsed after the person's
5-18 release from commitment, and there is no evidence that the person
5-19 <he> committed a criminal offense after the release.
5-20 (f) If latent fingerprints are found during the
5-21 investigation of an offense, and a law-enforcement officer has
5-22 reasonable cause to believe that they are those of a particular
5-23 child, if otherwise authorized by law, he may fingerprint the child
5-24 regardless of the age or offense for purpose of immediate
5-25 comparison with the latent fingerprints. If the comparison is
5-26 negative, the fingerprint card and other copies of the fingerprints
5-27 taken shall be destroyed immediately. If the comparison is
6-1 positive, and the child is referred to the juvenile court, the
6-2 fingerprint card and other copies of the fingerprints taken shall
6-3 be delivered to the court for disposition, except that one copy of
6-4 the fingerprints may be maintained locally as part of the
6-5 law-enforcement files and records for the child under Section
6-6 51.14(c). If the child is not referred to the court, the
6-7 fingerprint card and other copies of the fingerprints taken shall
6-8 be destroyed immediately. A law-enforcement agency that maintains
6-9 the fingerprints concerning a child on a local basis shall notify
6-10 the Department of Public Safety of the State of Texas in writing
6-11 that the agency has maintained copies of fingerprints sent to the
6-12 department under this subsection.
6-13 SECTION 3. Chapter 51, Family Code, is amended by adding
6-14 Section 51.1501 to read as follows:
6-15 Sec. 51.1501. CENTRAL DEPOSITORY. (a) The department shall
6-16 maintain a central state depository for the files and records of
6-17 persons:
6-18 (1) taken into custody under Section 52.01 for conduct
6-19 constituting:
6-20 (A) a misdemeanor punishable by confinement in
6-21 jail; or
6-22 (B) a felony; and
6-23 (2) referred to juvenile court.
6-24 (b) The department's central depository shall contain:
6-25 (1) arrest records;
6-26 (2) case dispositions;
6-27 (3) fingerprints;
7-1 (4) photographs; and
7-2 (5) other information useful for the investigation and
7-3 prosecution of criminal activity by a criminal combination.
7-4 (c) Files and records maintained by the department in the
7-5 depository are subject to being sealed under Section 51.16. The
7-6 department shall include with any files and records sent to a
7-7 juvenile court under an order under Section 51.16 a copy of a
7-8 notice received by the department under Section 51.14 or 51.15 from
7-9 a law-enforcement agency that maintains on a local basis a copy of
7-10 a fingerprint or photograph subject to the order under Section
7-11 51.16. The department shall maintain an index that identifies
7-12 persons whose records have been sealed under Section 51.16 and the
7-13 court that has custody of those records.
7-14 (d) The department may release information maintained under
7-15 this section only to:
7-16 (1) a law-enforcement agency;
7-17 (2) a juvenile probation department;
7-18 (3) the Department of Protective and Regulatory
7-19 Services;
7-20 (4) the Texas Youth Commission;
7-21 (5) the Texas Juvenile Probation Commission;
7-22 (6) the attorney general;
7-23 (7) the Criminal Justice Policy Council;
7-24 (8) the Texas Department of Criminal Justice;
7-25 (9) an attorney representing a child who is a party to
7-26 a proceeding under this title, if a juvenile court determines that
7-27 the information is:
8-1 (A) material to a proceeding; and
8-2 (B) not privileged under law; or
8-3 (10) a defendant in a criminal proceeding who is:
8-4 (A) the subject of information maintained by the
8-5 department under this section; and
8-6 (B) entitled to the discovery of the information
8-7 under Chapter 39, Code of Criminal Procedure.
8-8 (e) An agency or official may use information received under
8-9 Subsection (d) for the following purposes only:
8-10 (1) to identify a child;
8-11 (2) to determine a child's location, status, or
8-12 supervising authority; or
8-13 (3) for investigative or law-enforcement purposes.
8-14 (f) An attorney representing a child may use information
8-15 received under Subsection (d) only for the child's defense in a
8-16 proceeding under this title.
8-17 (g) A defendant may use information received under
8-18 Subsection (d) only for the defendant's defense in a criminal
8-19 proceeding.
8-20 (h) In this section:
8-21 (1) "Combination" has the meaning assigned by Section
8-22 71.01, Penal Code.
8-23 (2) "Department" means the Department of Public Safety
8-24 of the State of Texas.
8-25 SECTION 4. Section 51.16, Family Code, is amended by
8-26 amending Subsections (a)-(e) and adding Subsections (m)-(o) to read
8-27 as follows:
9-1 (a) Except as otherwise provided by <Subsection (j) of> this
9-2 section, the juvenile court shall order the sealing of all files
9-3 and records, including records specified in Sections 51.14 and
9-4 51.15, of a person found to have engaged in delinquent conduct or
9-5 conduct indicating a need for supervision or a person taken into
9-6 custody to determine whether the person engaged in delinquent
9-7 conduct or conduct indicating a need for supervision <on the
9-8 application of a person who has been found to have engaged in
9-9 delinquent conduct or conduct indicating a need for supervision,
9-10 or a person taken into custody to determine whether he engaged in
9-11 delinquent conduct or conduct indicating a need for supervision, or
9-12 on the juvenile court's own motion, the court, after hearing,
9-13 shall order the sealing of the files and records in the case,
9-14 including those specified in Sections 51.14 and 51.15 of this
9-15 code>, if the court finds that:
9-16 (1) two years have elapsed since final discharge of
9-17 the person, or since the last official action in his case if there
9-18 was no adjudication;
9-19 (2) since the time specified in Subdivision (1) of
9-20 this subsection, he has not been convicted of a felony or a
9-21 misdemeanor involving moral turpitude or found to have engaged in
9-22 delinquent conduct or conduct indicating a need for supervision,
9-23 and no proceeding is pending seeking conviction or adjudication;
9-24 and
9-25 (3) it is unlikely the person will engage in further
9-26 delinquent conduct or conduct indicating a need for supervision or
9-27 will commit a felony or a misdemeanor involving moral turpitude.
10-1 (b) Before ordering the sealing of files and records under
10-2 Subsection (a), the court shall give the person who is the subject
10-3 of the files and records and any interested party reasonable notice
10-4 of the court's intent to seal the files and records. An interested
10-5 party who receives notice under this section and who believes that
10-6 the files and records should not be sealed may file a motion with
10-7 the court for a hearing. On receipt of the motion or on the
10-8 court's own motion, the court shall:
10-9 (1) notify the person who is the subject of the files
10-10 and records of the motion to deny the sealing of the files and
10-11 records;
10-12 (2) notify the appropriate interested parties; and
10-13 (3) schedule a hearing on the issue.
10-14 (c) The court may grant the relief authorized in Subsection
10-15 (a) of this section at any time after final discharge of the person
10-16 or after the last official action in his case if there was no
10-17 adjudication.
10-18 <(c) Reasonable notice of the hearing shall be given to:>
10-19 <(1) the person who made the application or who is the
10-20 subject of the files or records named in the motion;>
10-21 <(2) the prosecuting attorney for the juvenile court;>
10-22 <(3) the authority granting the discharge if the final
10-23 discharge was from an institution or from parole;>
10-24 <(4) the public or private agency or institution
10-25 having custody of files or records named in the application or
10-26 motion; and>
10-27 <(5) the law-enforcement agency having custody of
11-1 files or records named in the application or motion.>
11-2 (d) Copies of the sealing order shall be sent to each agency
11-3 or official <therein> named in the order.
11-4 (e) On entry of the order:
11-5 (1) all law-enforcement, prosecuting attorney, clerk
11-6 of court, and juvenile court files and records ordered sealed shall
11-7 be sent to the court issuing the order;
11-8 (2) all files and records of a public or private
11-9 agency or institution ordered sealed shall be sent to the court
11-10 issuing the order;
11-11 (3) all index references to the files and records
11-12 ordered sealed shall be deleted, except as provided by Subsection
11-13 (n);
11-14 (4) the juvenile court, clerk of court, prosecuting
11-15 attorney, public or private agency or institution, and
11-16 law-enforcement officers and agencies shall properly reply that no
11-17 record exists with respect to such person upon inquiry in any
11-18 matter; and
11-19 (5) the adjudication shall be vacated and the
11-20 proceeding dismissed and treated for all purposes, including the
11-21 purpose of showing a prior finding of delinquency, as if it had
11-22 never occurred.
11-23 (m) The institutional division of the Texas Department of
11-24 Criminal Justice may petition the juvenile court for copies of the
11-25 sealed files and records of a person in the custody of the
11-26 institutional division. The court may allow the institutional
11-27 division to obtain copies of sealed files and records only if the
12-1 court determines that the files and records contain information
12-2 relevant to the rehabilitation of a person in the custody of the
12-3 institutional division.
12-4 (n) On entry of an order sealing files and records under
12-5 this section, the juvenile court shall notify the Department of
12-6 Public Safety of the State of Texas of the name of the person whose
12-7 files and records are subject to the sealing order for the purposes
12-8 of Section 51.1501(d).
12-9 (o) In this section, "interested party" means:
12-10 (1) the prosecuting attorney for the juvenile court in
12-11 which the person's case was heard;
12-12 (2) the authority granting discharge of the person if
12-13 the final discharge was from an institution or from parole; or
12-14 (3) a public or private agency or institution,
12-15 including a law-enforcement agency, having custody of files or
12-16 records subject to sealing.
12-17 SECTION 5. Chapter 54, Family Code, is amended by adding
12-18 Section 54.055 to read as follows:
12-19 Sec. 54.055. CLERK TO SUBMIT DISPOSITION INFORMATION. Not
12-20 later than the 60th day after the date an order is entered in the
12-21 disposition of a case under Section 54.04 or 54.05, the clerk of
12-22 the court that issued the order shall transmit to the Department of
12-23 Public Safety of the State of Texas information relating to the
12-24 disposition of the case. The clerk shall include:
12-25 (1) the name of the child;
12-26 (2) the names of the child's parents or guardian;
12-27 (3) a description of the conduct for which the child
13-1 was adjudicated;
13-2 (4) the disposition made in the case; and
13-3 (5) the place of the child's commitment, if
13-4 applicable.
13-5 SECTION 6. (a) The change in law made by this Act applies
13-6 only to conduct that occurs on or after the effective date of this
13-7 Act. Conduct violating a penal law of the state occurs on or after
13-8 the effective date of this Act if every element of the violation
13-9 occurs on or after that date.
13-10 (b) Conduct that occurs before the effective date of this
13-11 Act is covered by the law in effect at the time the conduct
13-12 occurred, and the former law is continued in effect for that
13-13 purpose.
13-14 SECTION 7. This Act takes effect September 1, 1995.
13-15 SECTION 8. The importance of this legislation and the
13-16 crowded condition of the calendars in both houses create an
13-17 emergency and an imperative public necessity that the
13-18 constitutional rule requiring bills to be read on three several
13-19 days in each house be suspended, and this rule is hereby suspended.