By: West S.B. No. 483
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the disposition of records of the conviction or
1-2 adjudication of minors.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsections (a), (b), and (c), Section 51.14,
1-5 Family Code, are amended to read as follows:
1-6 (a) Except as provided by Subsection (e) of this section, or
1-7 by Article 15.27, Code of Criminal Procedure, all files and records
1-8 of a juvenile court, a clerk of court, or a prosecuting attorney
1-9 relating to a child who is a party to a proceeding under this title
1-10 are open to inspection only by:
1-11 (1) the judge, probation officers, and professional
1-12 staff or consultants of the juvenile court;
1-13 (2) an attorney for a party to the proceeding;
1-14 (3) a public or private agency or institution
1-15 providing supervision of the child by arrangement of the juvenile
1-16 court, or having custody of the child under juvenile court order;
1-17 <or>
1-18 (4) a law-enforcement officer as necessary for the
1-19 discharge of the officer's official duties;
1-20 (5) recruiters for the armed forces of the United
1-21 States authorized by federal law to obtain information necessary
1-22 for recruitment;
1-23 (6) the local news media, on a satisfactory showing to
2-1 the judge of the juvenile court that there is a clear and present
2-2 danger to public safety or the community because:
2-3 (A) there is probable cause to believe that a
2-4 specific child has committed any aggravated offense;
2-5 (B) the child remains at large after reasonable
2-6 efforts by law-enforcement officers to apprehend the subject child;
2-7 (C) there is reason to believe that
2-8 dissemination of the subject child's name and photograph by the
2-9 news media would aid in the apprehension of the subject child; and
2-10 (D) a request has been made to the proper
2-11 authority to file a delinquency petition and the request is
2-12 supported by sufficient evidence pursuant to Section 53.04(a) of
2-13 this code; or
2-14 (7) with leave of juvenile court, any other person,
2-15 agency, or institution having a legitimate interest in the
2-16 proceeding or in the work of the court.
2-17 (b) All files and records of a public or private agency or
2-18 institution providing supervision of a child by arrangement of the
2-19 juvenile court or having custody of the child under order of the
2-20 juvenile court are open to inspection only by:
2-21 (1) the professional staff or consultants of the
2-22 agency or institution;
2-23 (2) the judge, probation officers, and professional
2-24 staff or consultants of the juvenile court;
2-25 (3) an attorney for the child;
3-1 (4) with leave of the juvenile court, any other
3-2 person, agency, or institution having a legitimate interest in the
3-3 work of the agency or institution; <or>
3-4 (5) the institutional division of the Texas Department
3-5 of Criminal Justice <Corrections>, the Department of Public Safety,
3-6 and the Texas Juvenile Probation Commission, for the purpose of
3-7 maintaining statistical records of recidivism, and for diagnosis
3-8 and classification; or
3-9 (6) a law-enforcement officer as necessary for the
3-10 discharge of the officer's official duties.
3-11 (c) Except as provided by this subsection, law-enforcement
3-12 files and records concerning a child shall be kept separate from
3-13 files and records of arrests of adults and shall be maintained on
3-14 both a local and a statewide basis <only> and shall be <not> sent
3-15 to a central state <or federal> depository for the purpose of
3-16 maintaining juvenile files and records statewide. The
3-17 law-enforcement files and records of a person who is transferred
3-18 from the Texas Youth Commission to the institutional division of
3-19 the Texas Department of Criminal Justice <Corrections> under a
3-20 determinate sentence may be transferred to a central state or
3-21 federal depository for adult records on or after the date of
3-22 transfer. If a child has been reported as missing by a parent,
3-23 guardian, or conservator of that child, or if the child has escaped
3-24 from the custody of a juvenile detention facility, the Texas Youth
3-25 Commission, or any other agency to which the child has been
4-1 committed, or if the child is the subject of a bench warrant or
4-2 felony arrest warrant issued by a court after the child has fled
4-3 the jurisdiction of the court, or if, after a satisfactory showing
4-4 to the judge of the juvenile court that there is a clear and
4-5 present danger to public safety or the community because there is
4-6 probable cause to believe that a specific child has committed any
4-7 aggravated offense, the child remains at large after reasonable
4-8 efforts by law-enforcement officers to apprehend the subject child,
4-9 and a request has been made to the proper authority to file a
4-10 delinquency case, any information or records concerning that child
4-11 may be transferred to and disseminated by the Texas Crime
4-12 Information Center and the National Crime Information Center.
4-13 SECTION 2. Subsections (a), (b), and (c), Section 51.15,
4-14 Family Code, as amended by Chapters 385, 515, and 576, Acts of the
4-15 70th Legislature, Regular Session, 1987, are amended to read as
4-16 follows:
4-17 (a) No child may be fingerprinted without the consent of the
4-18 juvenile court except as provided by this subsection or by
4-19 Subsections (f) and (i) of this section. A child's fingerprints
4-20 may be taken and filed by a law-enforcement officer investigating a
4-21 case if<:>
4-22 <(1)> the child is <15 years of age or older and is>
4-23 referred to the juvenile court for any felony<; or>
4-24 <(2) the child is under 15 years of age and is
4-25 referred to the juvenile court for a felony listed in Section
5-1 53.045(a) of this code>. The fingerprints shall be adaptable to
5-2 the Automated Fingerprint Identification System (AFIS).
5-3 (b) Except as provided in Subsections (h) and (i) of this
5-4 section, no child taken into custody may be photographed without
5-5 the consent of the juvenile court unless<:>
5-6 <(1)> the child is <15 years of age or older and is>
5-7 referred to the juvenile court for any <a> felony<; or>
5-8 <(2) the child is under 15 years of age and is
5-9 referred to the juvenile court for a felony listed in Section
5-10 53.045(a) of this 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 both a local and state basis
5-15 <only> and <not> sent to a central state <or federal> depository
5-16 for that purpose. The <However,> fingerprint and photograph files
5-17 or records of a person who is transferred from the Texas Youth
5-18 Commission to the institutional division of the Texas Department of
5-19 Criminal Justice <Corrections> under a determinate sentence may be
5-20 transferred to adult records on or after the date of transfer. If
5-21 a child has been reported as missing by a parent, guardian, or
5-22 conservator of that child or a child has escaped from the custody
5-23 of a juvenile detention facility, the Texas Youth Commission, or
5-24 any other agency to which the child has been committed, the child's
5-25 fingerprints and photograph may be sent to and indexed into the
6-1 files of the Department of Public Safety and the Federal Bureau of
6-2 Investigation to aid in the location and identification of the
6-3 child.
6-4 SECTION 3. Section 51.16, Family Code, is amended to read as
6-5 follows:
6-6 Sec. 51.16. DESTRUCTION AND SEALING OF FILES AND RECORDS.
6-7 (a) On <Except as provided by Subsection (j) of this section, on>
6-8 the application of a person 23 years of age or older who has been
6-9 found to have engaged in delinquent conduct or conduct indicating a
6-10 need for supervision, or who has been <a person> taken into custody
6-11 to determine whether he engaged in delinquent conduct or conduct
6-12 indicating a need for supervision, <or on the juvenile court's own
6-13 motion,> the court<, after hearing,> shall order the destruction
6-14 <sealing> of the files and records in the case, except the court's
6-15 files and records, which shall be sealed, including those specified
6-16 in Sections 51.14 and 51.15 of this code, as provided by this
6-17 section, if the court finds that:
6-18 (1) at least five <two> years have elapsed since final
6-19 discharge of the person, or since the last official action in his
6-20 case if there was no adjudication;
6-21 (2) since the time specified in Subdivision (1) of
6-22 this subsection, he has not been convicted of a felony or a
6-23 misdemeanor involving moral turpitude or found to have engaged in
6-24 delinquent conduct or conduct indicating a need for supervision,
6-25 and no proceeding is pending seeking conviction or adjudication;
7-1 <and>
7-2 (3) it is unlikely the person will engage in further
7-3 delinquent conduct or conduct indicating a need for supervision or
7-4 will commit a felony or a misdemeanor involving moral turpitude;
7-5 and
7-6 (4) the finding that the person engaged in delinquent
7-7 conduct was not based on the violation of a penal law of this state
7-8 of the grade of felony.
7-9 (b) The court may grant the relief authorized in Subsection
7-10 (a) of this section at any time after final discharge of the person
7-11 or after the last official action in his case if there was no
7-12 adjudication.
7-13 (c) Reasonable notice of the hearing shall be given to:
7-14 (1) the person who made the application or who is the
7-15 subject of the files or records named in the motion;
7-16 (2) the prosecuting attorney for the juvenile court;
7-17 (3) the authority granting the discharge if the final
7-18 discharge was from an institution or from parole;
7-19 (4) the public or private agency or institution having
7-20 custody of files or records named in the application or motion; and
7-21 (5) the law-enforcement agency having custody of files
7-22 or records named in the application or motion.
7-23 (d) The order of destruction shall apply to the files and
7-24 records relating to the person's adjudication and disposition that
7-25 are in the custody of a law-enforcement officer or agency, a
8-1 prosecuting attorney, or a public or private agency or institution.
8-2 Copies of the <sealing> order requiring the destruction of records
8-3 shall be sent to each agency or official <therein> named in the
8-4 order. The files and records in the custody of the clerk of the
8-5 court or juvenile court, and all declarations of delinquency based
8-6 on the violation of a penal law of this state of the grade of
8-7 felony, shall be ordered sealed and shall be the only files and
8-8 records not ordered destroyed or subject to an order of
8-9 destruction.
8-10 (e) On entry of the order:
8-11 (1) all law-enforcement, prosecuting attorney, clerk
8-12 of court, and juvenile court files and records ordered sealed shall
8-13 be sent to the court issuing the order, and the court shall seal
8-14 those files and records;
8-15 (2) all files and records of a public or private
8-16 agency or institution ordered destroyed <sealed> shall be sent to
8-17 the court issuing the order, and the court shall destroy those
8-18 files and records;
8-19 (3) all index references to the files and records
8-20 ordered destroyed <sealed> shall be deleted;
8-21 (4) the juvenile court, clerk of court, prosecuting
8-22 attorney, public or private agency or institution, and
8-23 law-enforcement officers and agencies shall properly reply that no
8-24 record exists with respect to such person upon inquiry in any
8-25 matter; and
9-1 (5) the adjudication shall be vacated and the
9-2 proceeding dismissed and treated for all purposes, including the
9-3 purpose of showing a prior finding of delinquency, as if it had
9-4 never occurred.
9-5 (f) All law-enforcement files and records which were created
9-6 prior to a person's 17th birthday shall be removed and destroyed
9-7 automatically and without further action or court order on the
9-8 person's 23rd birthday unless the law-enforcement agency petitions
9-9 the court and shows good cause why the records should not be
9-10 destroyed.
9-11 (g) Notwithstanding the entry of an order under this section
9-12 providing for the destruction of a person's files and records, the
9-13 court shall provide that the following information concerning the
9-14 person for whom the order was entered is recorded in the
9-15 computerized criminal history system as provided by Article 60.053,
9-16 Code of Criminal Procedure:
9-17 (1) the name and date of birth of person;
9-18 (2) a state identification number for the person
9-19 assigned by the Department of Public Safety; and
9-20 (3) the court in which the files and records for the
9-21 person are sealed and the municipality in which that court is
9-22 located.
9-23 (h) Inspection of the sealed files and records may be
9-24 permitted thereafter by an order of the juvenile court on the
9-25 petition of the person who is the subject of the files or records
10-1 or a prosecuting attorney or assistant prosecuting attorney who
10-2 shows good cause to the court. Only <and only by> those persons
10-3 named in the order may view the file or record.
10-4 (i) <(g)> On the final discharge of a child or on the last
10-5 official action in the child's <his> case if there is no
10-6 adjudication, the child shall be given a written explanation of the
10-7 child's <his> rights under this section and a copy of the
10-8 provisions of this section.
10-9 (j) <(h)> A person whose files and records have been sealed
10-10 and destroyed under this section <Act> is not required in any
10-11 proceeding or in any application for employment, information, or
10-12 licensing to state that the person <he> has been the subject of a
10-13 proceeding under this title, <Act;> and any statement that the
10-14 person <he> has never been found to be a delinquent child may not
10-15 <shall never> be held against the person in any criminal or civil
10-16 proceeding.
10-17 <(i) Except as provided by Subsection (j) of this section,
10-18 on the motion of a person in whose name files and records are kept
10-19 or on the court's own motion, the court may order the destruction
10-20 of all files and records concerning a person who has been
10-21 adjudicated to be a child in need of supervision or a delinquent
10-22 child if:>
10-23 <(1) seven years have elapsed since the child's 16th
10-24 birthday; and>
10-25 <(2) the person has not been convicted of a felony.>
11-1 <(j) A court may not order under this section the
11-2 destruction of files and records concerning a person adjudicated as
11-3 having engaged in delinquent conduct that violated a penal law of
11-4 the grade of felony.>
11-5 (k) A court may not order under this section the sealing of
11-6 files and records concerning a person adjudicated as having engaged
11-7 in delinquent conduct that violated a penal law of the grade of
11-8 felony unless:
11-9 (1) the person is 23 years of age or older;
11-10 (2) the files and records have not been:
11-11 (A) made a part of the person's adult record as
11-12 a result of the use of the files or records after the juvenile
11-13 court under Section 54.02 of this code transferred the person to a
11-14 criminal court for prosecution; or
11-15 (B) used as evidence in the punishment phase of
11-16 a criminal proceeding under Section 3(a), Article 37.07, Code of
11-17 Criminal Procedure; and
11-18 (3) the provisions of this section have been met
11-19 <person has not been convicted of a penal law of the grade of
11-20 felony after becoming age 17>.
11-21 (l) A prosecuting attorney may, by motion before a juvenile
11-22 court, reopen at any time the files and records of a person
11-23 adjudicated as having engaged in delinquent conduct that violated a
11-24 penal law of the grade of felony sealed by the court under
11-25 Subsection (k) of this section if, after the court ordered the
12-1 sealing, the person is indicted for a criminal offense that
12-2 occurred before the person's 23rd birthday or at any time is
12-3 charged with a capital offense or a felony of the first degree.
12-4 (m) A person who acquires knowledge of an arrest while an
12-5 officer or employee of the state or of any agency or other entity
12-6 of the state or of any political subdivision of the state and who
12-7 knows of an order sealing or destroying the records and files
12-8 relating to that arrest has a duty not to release, disseminate, or
12-9 otherwise use the records or files. A person who is subject to an
12-10 order to seal or destroy records or files has a duty to comply with
12-11 the order and with all time limitations set out in the order for
12-12 compliance with the order.
12-13 SECTION 4. Subsection (a), Section 3, Article 37.07, Code of
12-14 Criminal Procedure, is amended to read as follows:
12-15 (a) Regardless of the plea and whether the punishment be
12-16 assessed by the judge or the jury, evidence may be offered by the
12-17 state and the defendant as to any matter the court deems relevant
12-18 to sentencing, including but not limited to the prior criminal
12-19 record of the defendant, his general reputation, his character, an
12-20 opinion regarding his character, the circumstances of the offense
12-21 for which he is being tried, and, notwithstanding Rules 404 and
12-22 405, Texas Rules of Criminal Evidence, any other evidence of an
12-23 extraneous crime or bad act that is shown beyond a reasonable doubt
12-24 by evidence to have been committed by the defendant or for which he
12-25 could be held criminally responsible, regardless of whether he has
13-1 previously been charged with or finally convicted of the crime or
13-2 act. A court may consider as a factor in mitigating punishment the
13-3 conduct of a defendant while participating in a program under
13-4 Chapter 17 of this code as a condition of release on bail.
13-5 Additionally, notwithstanding Rule 609(d), Texas Rules of Criminal
13-6 Evidence, evidence may be offered by the state and the defendant of
13-7 an adjudication of delinquency based on a violation by the
13-8 defendant of a penal law of the grade of felony subject to Section
13-9 51.16, Family Code, providing for the sealing and destruction of
13-10 files and records relating to that adjudication <unless:>
13-11 <(1) the adjudication is based on conduct committed
13-12 more than five years before the commission of the offense for which
13-13 the person is being tried; and>
13-14 <(2) in the five years preceding the date of the
13-15 commission of the offense for which the person is being tried, the
13-16 person did not engage in conduct for which the person has been
13-17 adjudicated as a delinquent child or a child in need of supervision
13-18 and did not commit an offense for which the person has been
13-19 convicted>.
13-20 SECTION 5. The heading to Chapter 55, Code of Criminal
13-21 Procedure, is amended to read as follows:
13-22 CHAPTER 55. EXPUNCTION, SEALING, AND DESTRUCTION
13-23 OF CRIMINAL RECORDS
13-24 SECTION 6. Chapter 55, Code of Criminal Procedure, is
13-25 amended by designating Articles 55.01 through 55.05 as Subchapter
14-1 A, by adding a heading to Subchapter A, and by adding Subchapter B
14-2 to read as follows:
14-3 SUBCHAPTER A. EXPUNCTION OF CRIMINAL RECORDS
14-4 SUBCHAPTER B. SEALING AND DESTRUCTION OF RECORDS FOR
14-5 CRIMES COMMITTED BEFORE THE AGE OF 17 YEARS
14-6 Art. 55.21. SEALING AND DESTRUCTION OF RECORDS. (a) A
14-7 person 23 years of age or older may apply for the sealing and
14-8 destruction of the files and records in the person's case for
14-9 crimes committed before the person's 17th birthday as provided by
14-10 this subchapter.
14-11 (b) After final discharge of the person or after the last
14-12 official act in the person's case if there was not a conviction,
14-13 the court shall order the sealing and destruction of a person's
14-14 records, other than records of declarations of delinquent conduct
14-15 which were based on violations of a penal law of this state of the
14-16 grade of felony, under this section if, after a hearing, the court
14-17 finds that on or after the person's 17th birthday:
14-18 (1) the person has not been convicted of a felony and
14-19 is not presently under indictment for a felony offense;
14-20 (2) the person has not been incarcerated in a penal
14-21 institution for a substantial period of time during the five years
14-22 preceding the person's request; and
14-23 (3) the files and records of the person have not been:
14-24 (A) made a part of the person's adult record as
14-25 a result of the use of the files or records after the juvenile
15-1 court under Section 54.02, Family Code, transferred the person to a
15-2 criminal court for prosecution; or
15-3 (B) used as evidence in the punishment phase of
15-4 a criminal proceeding under Section 3(a), Article 37.07, of this
15-5 code.
15-6 Art. 55.22. NOTICE OF HEARING. Reasonable notice of the
15-7 hearing must be given to:
15-8 (1) the person who made the application;
15-9 (2) the prosecuting attorney for the district court or
15-10 criminal district court;
15-11 (3) the authority granting the discharge if the final
15-12 discharge was from an institution or from parole;
15-13 (4) the public or private agency or institution having
15-14 custody of files or records named in the application; and
15-15 (5) the law enforcement agency having custody of files
15-16 or records named in the application.
15-17 Art. 55.23. RECORDS SEALING AND DESTRUCTION ORDER.
15-18 (a) Copies of the order requiring the destruction of records shall
15-19 be sent to each agency or official named in the order.
15-20 (b) On entry of the order:
15-21 (1) the files and records of the clerk of the court
15-22 and district court or criminal district court files and records
15-23 shall be ordered sealed;
15-24 (2) all files and records of a law enforcement agency,
15-25 a prosecuting attorney, or a public or private agency or
16-1 institution that are ordered destroyed, except those files and
16-2 records sent to the court, shall be destroyed, and the entity
16-3 destroying the records shall, not later than the 10th day after the
16-4 destruction, notify the court in writing that the files and records
16-5 have been destroyed;
16-6 (3) the district court or criminal district court,
16-7 clerk of a court, prosecuting attorney, public or private agency or
16-8 institution, and law enforcement officers and agencies shall
16-9 properly reply on inquiry in any matter with respect to the person
16-10 who is the subject of the order that no record exists; and
16-11 (4) the juvenile court finding of delinquency shall be
16-12 vacated and the proceeding dismissed and treated for all purposes,
16-13 including the purpose of showing a prior conviction, as if it never
16-14 occurred.
16-15 Art. 55.24. INFORMATION SENT TO COMPUTERIZED CRIMINAL
16-16 HISTORY SYSTEM. Notwithstanding the entry of an order under this
16-17 subchapter providing for the sealing and destruction of a person's
16-18 criminal records, the court shall provide that the following
16-19 information concerning the person for whom the order was entered is
16-20 recorded in the computerized criminal history system as provided by
16-21 Article 60.053 of this code:
16-22 (1) the name and date of birth of the person;
16-23 (2) a state identification number for the person
16-24 assigned by the Department of Public Safety; and
16-25 (3) the court in which the records for the person are
17-1 sealed and the city in which that court is located.
17-2 Art. 55.25. EXPLANATION OF RIGHTS. On the final discharge
17-3 of the person or on the last official action in the person's case,
17-4 the person shall be given a written explanation of the person's
17-5 rights under this subchapter and a copy of the provisions of this
17-6 subchapter.
17-7 Art. 55.26. DISCLOSURE OF DECLARATION OF DELINQUENCY NOT
17-8 REQUIRED. A person whose files and records have been sealed and
17-9 destroyed under this subchapter is not required in any proceeding
17-10 or in any application for employment, information, or licensing to
17-11 state that the person has been declared delinquent or convicted.
17-12 Any statement that the person has never been convicted may not be
17-13 held against the person in a criminal or civil proceeding.
17-14 SECTION 7. Chapter 60, Code of Criminal Procedure, is
17-15 amended by adding Article 60.053 to read as follows:
17-16 Art. 60.053. INFORMATION RELATING TO CONDUCT OR OFFENSE
17-17 COMMITTED BY A PERSON BEFORE AGE 17. (a) Notwithstanding any
17-18 other provision of this chapter, the computerized criminal history
17-19 system shall include the information listed in Subsection (b) of
17-20 this article concerning a person whose files and records are
17-21 ordered sealed and destroyed under Section 51.16, Family Code, or
17-22 Article 55.21 of this code.
17-23 (b) The computerized criminal history system shall contain
17-24 only the following information concerning a person under this
17-25 article:
18-1 (1) the name and date of birth of the person;
18-2 (2) a state identification number for the person
18-3 assigned by the Department of Public Safety; and
18-4 (3) the court in which the records for the person are
18-5 sealed and the city in which that court is located.
18-6 (c) The information required to be included in the
18-7 computerized criminal history system under this article shall be
18-8 provided to the Department of Public Safety by a court entering an
18-9 order under Section 51.16, Family Code, or Article 55.21 of this
18-10 code. The department shall delete from the system any other
18-11 information contained in the system concerning a person for whom
18-12 information is included in the system under this article.
18-13 (d) The Texas Department of Criminal Justice shall delete
18-14 from the corrections tracking system any information contained in
18-15 that system concerning a person included in the computerized
18-16 criminal history system under this article.
18-17 SECTION 8. This Act takes effect September 1, 1996.
18-18 SECTION 9. (a) The change in law made by this Act applies
18-19 only to files and records created with regard to conduct that
18-20 occurs on or after the effective date of this Act. Conduct
18-21 violating a penal law of this state occurs on or after the
18-22 effective date of this Act if every element of the violation occurs
18-23 on or after date.
18-24 (b) The files and records created with regard to conduct
18-25 that occurs before the effective date of this Act is covered by the
19-1 law in effect at the time the conduct occurred, and the former law
19-2 is continued in effect for that purpose.
19-3 (c) The change in law made by Subchapter B, Chapter 55, Code
19-4 of Criminal Procedure, as added by this Act, applies only to the
19-5 records for an offense committed on or after the effective date of
19-6 this Act. For purposes of this section, an offense is committed
19-7 before the effective date of this Act if any element of the offense
19-8 occurs before the effective date.
19-9 (d) The records of an offense committed before the effective
19-10 date of this Act is covered by the law in effect at the time the
19-11 offense was committed, and the former law is continued in effect
19-12 for that purpose.
19-13 SECTION 10. The importance of this legislation and the
19-14 crowded condition of the calendars in both houses create an
19-15 emergency and an imperative public necessity that the
19-16 constitutional rule requiring bills to be read on three several
19-17 days in each house be suspended, and this rule is hereby suspended.