Bill Text: TX HB2863 | 2017-2018 | 85th Legislature | Comm Sub

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Bill Title: Relating to confidentiality, sharing, sealing, and destruction of juvenile records.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2017-05-12 - Returned to Local & Consent Calendars Comm. [HB2863 Detail]

Download: Texas-2017-HB2863-Comm_Sub.html

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85R15500 MK-F
By: White H.B. No. 2863
Substitute the following for H.B. No. 2863:
By: Dutton C.S.H.B. No. 2863

A BILL TO BE ENTITLED
AN ACT
relating to confidentiality, sharing, sealing, and destruction of
juvenile records.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 62.007(e), Code of Criminal Procedure,
is amended to read as follows:
(e) Records [Notwithstanding Chapter 58, Family Code,
records] and files, including records that have been sealed under
Chapter 58, Family Code [Section 58.003 of that code], relating to a
person for whom a court, the Texas Department of Criminal Justice,
or the Texas Juvenile Justice Department is required under this
article to determine a level of risk shall be released to the court,
the Texas Department of Criminal Justice, or the Texas Juvenile
Justice Department, as appropriate, for the purpose of determining
the person's risk level.
SECTION 2. Section 54.04(h), Family Code, is amended to
read as follows:
(h) At the conclusion of the dispositional hearing, the
court shall inform the child of:
(1) the child's right to appeal, as required by Section
56.01; and
(2) the procedures for the sealing of the child's
records under Subchapter C-1, Chapter 58 [Section 58.003].
SECTION 3. Section 54.04012(d), Family Code, is amended to
read as follows:
(d) Following a child's successful completion of the
program, the court may order the sealing of the records of the case
in the manner provided by Subchapter C-1, Chapter 58 [Sections
58.003(c-7) and (c-8)].
SECTION 4. The heading to Subchapter A, Chapter 58, Family
Code, is amended to read as follows:
SUBCHAPTER A. CREATION AND CONFIDENTIALITY OF JUVENILE RECORDS
SECTION 5. The heading to Section 58.001, Family Code, is
amended to read as follows:
Sec. 58.001. LAW ENFORCEMENT COLLECTION AND TRANSMITTAL OF
RECORDS OF CHILDREN.
SECTION 6. Sections 58.002(a), (b), and (c), Family Code,
are amended to read as follows:
(a) Except as provided by Chapter 63, Code of Criminal
Procedure, a child may not be photographed or fingerprinted without
the consent of the juvenile court unless the child is:
(1) taken into custody; or
(2) referred to the juvenile court for conduct that
constitutes a felony or a misdemeanor punishable by confinement in
jail, regardless of whether the child has been taken into custody.
(b) On or before December 31 of each year, the head of each
municipal or county law enforcement agency located in a county
shall certify to the juvenile board for that county that the
photographs and fingerprints required to be destroyed under Section
58.001 have been destroyed. The juvenile board may [shall] conduct
or cause to be conducted an audit of the records of the law
enforcement agency to verify the destruction of the photographs and
fingerprints and the law enforcement agency shall make its records
available for this purpose. If the audit shows that the
certification provided by the head of the law enforcement agency is
false, that person is subject to prosecution for perjury under
Chapter 37, Penal Code.
(c) This section does not prohibit a law enforcement officer
from photographing or fingerprinting a child who is not in custody
or who has not been referred to the juvenile court for conduct that
constitutes a felony or misdemeanor punishable by confinement in
jail if the child's parent or guardian voluntarily consents in
writing to the photographing or fingerprinting of the child.
Consent of the child's parent or guardian is not required to
photograph or fingerprint a child described by Subsection (a)(1) or
(2).
SECTION 7. Section 58.0021(b), Family Code, is amended to
read as follows:
(b) A law enforcement officer may take temporary custody of
a child to take the child's photograph, or may obtain a photograph
of a child from a juvenile probation department in possession of a
photograph of the child, if:
(1) the officer has probable cause to believe that the
child has engaged in delinquent conduct; and
(2) the officer has probable cause to believe that the
child's photograph will be of material assistance in the
investigation of that conduct.
SECTION 8. Section 58.004, Family Code, is amended to read
as follows:
Sec. 58.004. REDACTION OF VICTIM'S PERSONALLY IDENTIFIABLE
INFORMATION. (a) Notwithstanding any other law, before disclosing
any juvenile court record [or file] of a child as authorized by this
chapter or other law, the custodian of the record [or file] must
redact any personally identifiable information about a victim of
the child's delinquent conduct or conduct indicating a need for
supervision who was under 18 years of age on the date the conduct
occurred.
(b) This section does not apply to information that is:
(1) necessary for an agency to provide services to the
victim;
(2) necessary for law enforcement purposes; [or]
(3) shared within the statewide juvenile information
and case management system established under Subchapter E;
(4) shared with an attorney representing the child in
a proceeding under this title; or
(5) shared with an attorney representing any other
person in a juvenile or criminal court proceeding arising from the
same act or conduct for which the child was referred to juvenile
court.
SECTION 9. Section 58.005, Family Code, is amended to read
as follows:
Sec. 58.005. CONFIDENTIALITY OF FACILITY RECORDS. (a)
This section applies only to the inspection, copying, and
maintenance of a record [Records and files] concerning a child and
to the storage of information from which a record could be
generated, including personally identifiable information, [and]
information obtained for the purpose of diagnosis, examination,
evaluation, or treatment of the child or for making a referral for
treatment of the [a] child, and other records or information,
created by or in the possession of:
(1) the Texas Juvenile Justice Department;
(2) an entity having custody of the child under a
contract with the Texas Juvenile Justice Department; or
(3) another [by a] public or private agency or
institution [providing supervision of a child by arrangement of the
juvenile court or] having custody of the child under order of the
juvenile court, including a facility operated by or under contract
with a juvenile board or juvenile probation department.
(a-1) Except as provided by Article 15.27, Code of Criminal
Procedure, the records and information to which this section
applies may be disclosed only to:
(1) the professional staff or consultants of the
agency or institution;
(2) the judge, probation officers, and professional
staff or consultants of the juvenile court;
(3) an attorney for the child;
(4) a governmental agency if the disclosure is
required or authorized by law;
(5) a person or entity to whom the child is referred
for treatment or services if the agency or institution disclosing
the information has entered into a written confidentiality
agreement with the person or entity regarding the protection of the
disclosed information;
(6) the Texas Department of Criminal Justice and the
Texas Juvenile Justice Department for the purpose of maintaining
statistical records of recidivism and for diagnosis and
classification; or
(7) with permission from [leave of] the juvenile
court, any other person, agency, or institution having a legitimate
interest in the proceeding or in the work of the court.
(b) This section does not affect the collection,
dissemination, or maintenance of information as provided by
Subchapter B or [apply to information collected under Section
58.104 or under Subchapter] D-1.
SECTION 10. Section 58.0052(b), Family Code, is amended to
read as follows:
(b) Subject to Subsection (c), at [At] the request of a
juvenile service provider, another juvenile service provider shall
disclose to that provider a multi-system youth's personal health
information or a history of governmental services provided to the
multi-system youth, including:
(1) identity records;
(2) medical and dental records;
(3) assessment or diagnostic test results;
(4) special needs;
(5) program placements; [and]
(6) psychological diagnoses; and
(7) other related records or information.
SECTION 11. The heading to Section 58.007, Family Code, is
amended to read as follows:
Sec. 58.007. CONFIDENTIALITY OF PROBATION DEPARTMENT,
PROSECUTOR, AND COURT [PHYSICAL] RECORDS [OR FILES].
SECTION 12. Section 58.007, Family Code, is amended by
amending Subsections (a), (b), (g), and (i) and adding Subsection
(b-1) to read as follows:
(a) This section applies only to the inspection, copying,
and maintenance of a [physical] record [or file] concerning a child
and the storage of information, by electronic means or otherwise,
concerning the child from which a [physical] record [or file] could
be generated and does not affect the collection, dissemination, or
maintenance of information as provided by Subchapter B or D-1. This
section does not apply to a record [or file] relating to a child
that is:
(1) required or authorized to be maintained under the
laws regulating the operation of motor vehicles in this state;
(2) maintained by a municipal or justice court; or
(3) subject to disclosure under Chapter 62, Code of
Criminal Procedure.
(b) Except as provided by Section 54.051(d-1) and by Article
15.27, Code of Criminal Procedure, the records, whether physical or
electronic, [and files] of a juvenile court, a clerk of court, a
juvenile probation department, or a prosecuting attorney relating
to a child who is a party to a proceeding under this title may be
inspected or copied only by:
(1) the judge, probation officers, and professional
staff or consultants of the juvenile court;
(2) a juvenile justice agency as that term is defined
by Section 58.101;
(3) an attorney representing [for] a party in a [to
the] proceeding under this title;
(4) a person or entity to whom the child is referred
for treatment or services, if the agency or institution disclosing
the information has entered into a written confidentiality
agreement with the person or entity regarding the protection of the
disclosed information;
(5) a public or private agency or institution
providing supervision of the child by arrangement of the juvenile
court, or having custody of the child under juvenile court order; or
(6) [(5)] with permission from [leave of] the juvenile
court, any other person, agency, or institution having a legitimate
interest in the proceeding or in the work of the court.
(b-1) A person who is the subject of the records is entitled
to access the records for the purpose of preparing and presenting a
motion or application to seal the records.
(g) For the purpose of offering a record as evidence in the
punishment phase of a criminal proceeding, a prosecuting attorney
may obtain the record of a defendant's adjudication that is
admissible under Section 3(a), Article 37.07, Code of Criminal
Procedure, by submitting a request for the record to the juvenile
court that made the adjudication. If a court receives a request
from a prosecuting attorney under this subsection, the court shall,
if the court possesses the requested record of adjudication,
certify and provide the prosecuting attorney with a copy of the
record. If a record has been sealed under this chapter, the
juvenile court may not provide a copy of the record to a prosecuting
attorney under this subsection.
(i) In addition to the authority to release information
under Subsection (b)(6) [(b)(5)], a juvenile probation department
may release information contained in its records without leave of
the juvenile court pursuant to guidelines adopted by the juvenile
board.
SECTION 13. Subchapter A, Chapter 58, Family Code, is
amended by adding Section 58.008 to read as follows:
Sec. 58.008. CONFIDENTIALITY OF LAW ENFORCEMENT RECORDS.
(a) This section applies only to the inspection, copying, and
maintenance of a record concerning a child and to the storage of
information, by electronic means or otherwise, concerning the child
from which a record could be generated and does not affect the
collection, dissemination, or maintenance of information as
provided by Subchapter B. This section does not apply to a record
relating to a child that is:
(1) required or authorized to be maintained under the
laws regulating the operation of motor vehicles in this state;
(2) maintained by a municipal or justice court; or
(3) subject to disclosure under Chapter 62, Code of
Criminal Procedure.
(b) Except as provided by Subsection (d), law enforcement
records concerning a child and information concerning a child that
are stored by electronic means or otherwise and from which a record
could be generated may not be disclosed to the public and shall be:
(1) if maintained on paper or microfilm, kept separate
from adult records;
(2) if maintained electronically in the same computer
system as adult records, accessible only under controls that are
separate and distinct from the controls to access electronic data
concerning adults; and
(3) maintained on a local basis only and not sent to a
central state or federal depository, except as provided by
Subsection (c) or Subchapter B, D, or E.
(c) The law enforcement records of a person with a
determinate sentence who is transferred to the Texas Department of
Criminal Justice may be transferred to a central state or federal
depository for adult records after the date of transfer and may be
shared in accordance with the laws governing the adult records in
the depository.
(d) Law enforcement records concerning a child may be
inspected or copied by:
(1) a juvenile justice agency, as defined by Section
58.101;
(2) a criminal justice agency, as defined by Section
411.082, Government Code;
(3) the child; or
(4) the child's parent or guardian.
(e) Before a child or a child's parent or guardian may
inspect or copy a record concerning the child under Subsection (d),
the custodian of the record shall redact:
(1) any personally identifiable information about a
juvenile suspect, offender, victim, or witness who is not the
child; and
(2) any information that is excepted from required
disclosure under Chapter 552, Government Code, or any other law.
(f) If a child has been reported missing by a parent,
guardian, or conservator of that child, information about the child
may be forwarded to and disseminated by the Texas Crime Information
Center and the National Crime Information Center.
SECTION 14. Section 58.0072, Family Code, is redesignated
as Section 58.009, Family Code, and amended to read as follows:
Sec. 58.009 [58.0072]. DISSEMINATION OF JUVENILE JUSTICE
INFORMATION BY THE TEXAS JUVENILE JUSTICE DEPARTMENT. (a) Except
as provided by this section, juvenile justice information collected
and maintained by the Texas Juvenile Justice Department for
statistical and research purposes is confidential information for
the use of the department and may not be disseminated by the
department.
(b) Juvenile justice information consists of information of
the type described by Section 58.104, including statistical data in
any form or medium collected, maintained, or submitted to the Texas
Juvenile Justice Department under Section 221.007, Human Resources
Code.
(c) The Texas Juvenile Justice Department may grant the
following entities access to juvenile justice information for
research and statistical purposes or for any other purpose approved
by the department:
(1) criminal justice agencies as defined by Section
411.082, Government Code;
(2) the Texas Education Agency, as authorized under
Section 37.084, Education Code;
(3) any agency under the authority of the Health and
Human Services Commission; or
(4) a public or private university.
(d) The Texas Juvenile Justice Department may grant the
following entities access to juvenile justice information only for
a purpose beneficial to and approved by the department to:
(1) a person working on a research or statistical
project that:
(A) is funded in whole or in part by state or
federal funds; and
(B) meets the requirements of and is approved by
the department; or
(2) a person working on a research or statistical
project that:
(A) meets the requirements of and is approved by
the department; and
(B) [governmental entity that] has a specific
agreement with the department that[, if the agreement]:
(i) [(A)] specifically authorizes access
to information;
(ii) [(B)] limits the use of information to
the purposes for which the information is given;
(iii) [(C)] ensures the security and
confidentiality of the information; and
(iv) [(D)] provides for sanctions if a
requirement imposed under Subparagraph (i), (ii), or (iii)
[Paragraph (A), (B), or (C)] is violated.
(e) The Texas Juvenile Justice Department shall grant
access to juvenile justice information for legislative purposes
under Section 552.008, Government Code.
(f) The Texas Juvenile Justice Department may not release
juvenile justice information in identifiable form, except for
information released under Subsection (c)(1), (2), or (3) or under
the terms of an agreement entered into under Subsection (d)(2). For
purposes of this subsection, identifiable information means
information that contains a juvenile offender's name or other
personal identifiers or that can, by virtue of sample size or other
factors, be reasonably interpreted as referring to a particular
juvenile offender.
(g) Except as provided by Subsection (e), the [The] Texas
Juvenile Justice Department is permitted but not required to
release or disclose juvenile justice information to any person
[not] identified under this section.
SECTION 15. Section 58.102(c), Family Code, is amended to
read as follows:
(c) The department may not collect, [or] retain, or share
information relating to a juvenile except as provided by [if] this
chapter [prohibits or restricts the collection or retention of the
information].
SECTION 16. Sections 58.104(a), (b), and (f), Family Code,
are amended to read as follows:
(a) Subject to Subsection (f), the juvenile justice
information system shall consist of information relating to
delinquent conduct committed or alleged to have been committed by a
juvenile offender that, if the conduct had been committed by an
adult, would constitute a criminal offense other than an offense
punishable by a fine only, including information relating to:
(1) the juvenile offender;
(2) the intake or referral of the juvenile offender
into the juvenile justice system;
(3) the detention of the juvenile offender;
(4) the prosecution of the juvenile offender;
(5) the disposition of the juvenile offender's case,
including the name and description of any program to which the
juvenile offender is referred; [and]
(6) the probation or commitment of the juvenile
offender; and
(7) the termination of probation supervision or
discharge from commitment of the juvenile offender.
(b) To the extent possible and subject to Subsection (a),
the department shall include in the juvenile justice information
system the following information for each juvenile offender taken
into custody, detained, or referred under this title for delinquent
conduct:
(1) the juvenile offender's name, including other
names by which the juvenile offender is known;
(2) the juvenile offender's date and place of birth;
(3) the juvenile offender's physical description,
including sex, weight, height, race, ethnicity, eye color, hair
color, scars, marks, and tattoos;
(4) the juvenile offender's state identification
number, and other identifying information, as determined by the
department;
(5) the juvenile offender's fingerprints;
(6) the juvenile offender's last known residential
address, including the census tract number designation for the
address;
(7) the name and identifying number of the agency that
took into custody or detained the juvenile offender;
(8) the date of detention or custody;
(9) the conduct for which the juvenile offender was
taken into custody, detained, or referred, including level and
degree of the alleged offense;
(10) the name and identifying number of the juvenile
intake agency or juvenile probation office;
(11) each disposition by the juvenile intake agency or
juvenile probation office;
(12) the date of disposition by the juvenile intake
agency or juvenile probation office;
(13) the name and identifying number of the
prosecutor's office;
(14) each disposition by the prosecutor;
(15) the date of disposition by the prosecutor;
(16) the name and identifying number of the court;
(17) each disposition by the court, including
information concerning probation or custody of a juvenile offender
by a juvenile justice agency [or probation];
(18) the date of disposition by the court;
(19) the date any probation supervision, including
deferred prosecution supervision, was terminated;
(20) any commitment or release under supervision by
the Texas Juvenile Justice Department;
(21) [(20)] the date of any commitment or release
under supervision by the Texas Juvenile Justice Department; and
(22) [(21)] a description of each appellate
proceeding.
(f) Records maintained by the department in the depository
are subject to being sealed under Subchapter C-1 [Section 58.003].
SECTION 17. Sections 58.106(a-2) and (b), Family Code, are
amended to read as follows:
(a-2) Information disseminated under Subsection (a) [or
(a-1)] remains confidential after dissemination and may be
disclosed by the recipient only as provided by this title.
(b) Subsection (a) does [Subsections (a) and (a-1) do] not
apply to a document maintained by a juvenile justice or law
enforcement agency that is the source of information collected by
the department.
SECTION 18. Chapter 58, Family Code, is amended by adding
Subchapter C-1 to read as follows:
SUBCHAPTER C-1. SEALING AND DESTRUCTION OF JUVENILE RECORDS
Sec. 58.251. DEFINITIONS. In this subchapter:
(1) "Electronic record" means an entry in a computer
file or information on microfilm, microfiche, or any other
electronic storage media.
(2) "Juvenile matter" means a referral to a juvenile
court or juvenile probation department and all related court
proceedings and outcomes, if any.
(3) "Physical record" means a paper copy of a record.
(4) "Record" means any documentation related to a
juvenile matter, including information contained in that
documentation.
Sec. 58.252. EXEMPTED RECORDS. The following records are
exempt from this subchapter:
(1) records relating to a criminal combination or
criminal street gang maintained by the Department of Public Safety
or a local law enforcement agency under Chapter 61, Code of Criminal
Procedure;
(2) sex offender registration records maintained by
the Department of Public Safety or a local law enforcement agency
under Chapter 62, Code of Criminal Procedure; and
(3) records collected or maintained by the Texas
Juvenile Justice Department for statistical and research purposes,
including data submitted under Section 221.007, Human Resources
Code, and personally identifiable information.
Sec. 58.253. SEALING RECORDS WITHOUT APPLICATION:
DELINQUENT CONDUCT. (a) This section does not apply to the records
of a child referred to a juvenile court or juvenile probation
department solely for conduct indicating a need for supervision.
(b) A person who was referred to a juvenile probation
department for delinquent conduct is entitled to have all records
related to the person's juvenile matters, including records
relating to any matters involving conduct indicating a need for
supervision, sealed without applying to the juvenile court if the
person:
(1) is at least 19 years of age;
(2) has not been adjudicated as having engaged in
delinquent conduct or, if adjudicated for delinquent conduct, was
not adjudicated for delinquent conduct violating a penal law of the
grade of felony;
(3) does not have any pending delinquent conduct
matters;
(4) has not been transferred by a juvenile court to a
criminal court for prosecution under Section 54.02;
(5) has not as an adult been convicted of a felony or a
misdemeanor punishable by confinement in jail; and
(6) does not have any pending charges as an adult for a
felony or a misdemeanor punishable by confinement in jail.
(c) A person who was referred to a juvenile probation
department for delinquent conduct is entitled to have all records
related to the person's juvenile matters, including records
relating to any matters involving conduct indicating a need for
supervision, sealed without applying to the juvenile court if the
person:
(1) is at least 25 years of age;
(2) was adjudicated as having engaged in delinquent
conduct violating a penal law of the grade of felony;
(3) did not receive a determinate sentence for
engaging in:
(A) delinquent conduct that violated a penal law
listed under Section 53.045; or
(B) habitual felony conduct as described by
Section 51.031;
(4) has not been required to register as a sex offender
under Chapter 62, Code of Criminal Procedure;
(5) does not have any pending delinquent conduct
matters;
(6) has not been transferred by a juvenile court to a
criminal court for prosecution under Section 54.02;
(7) has not as an adult been convicted of a felony or a
misdemeanor punishable by confinement in jail; and
(8) does not have any pending charges as an adult for a
felony or a misdemeanor punishable by confinement in jail.
Sec. 58.254. CERTIFICATION OF ELIGIBILITY FOR SEALING
RECORDS WITHOUT APPLICATION FOR DELINQUENT CONDUCT. (a) The
Department of Public Safety shall certify to a juvenile probation
department that has submitted records to the juvenile justice
information system that the records relating to a person referred
to the juvenile probation department appear to be eligible for
sealing under Section 58.253.
(b) The Department of Public Safety may issue the
certification described by Subsection (a) by electronic means,
including by electronic mail.
(c) Except as provided by Subsection (d), not later than the
60th day after the date the juvenile probation department receives
a certification under Subsection (a), the juvenile probation
department shall:
(1) give notice of the receipt of the certification to
the juvenile court; and
(2) provide the court with a list of all referrals
received by the department relating to that person and the outcome
of each referral.
(d) If a juvenile probation department has reason to believe
the records of the person for whom the department received a
certification under Subsection (a) are not eligible to be sealed,
the juvenile probation department shall notify the Department of
Public Safety not later than the 15th day after the date the
juvenile probation department received the certification. If the
juvenile probation department later determines that the person's
records are eligible to be sealed, the juvenile probation
department shall notify the juvenile court and provide the court
the information described by Subsection (c) not later than the 30th
day after the date of the determination.
(e) If, after receiving a certification under Subsection
(a), the juvenile probation department determines that the person's
records are not eligible to be sealed, the juvenile probation
department and the Department of Public Safety shall update the
juvenile justice information system to reflect that determination
and no further action related to the records is required.
(f) Not later than the 60th day after the date a juvenile
court receives notice from a juvenile probation department under
Subsection (c), the juvenile court shall issue an order sealing all
records relating to the person named in the certification.
Sec. 58.255. SEALING RECORDS WITHOUT APPLICATION: CONDUCT
INDICATING NEED FOR SUPERVISION. (a) A person who was referred to
a juvenile probation department for conduct indicating a need for
supervision is entitled to have all records related to all conduct
indicating a need for supervision matters sealed without applying
to the juvenile court if the person:
(1) is at least 18 years of age;
(2) has not been referred to the juvenile probation
department for delinquent conduct;
(3) has not as an adult been convicted of a felony; and
(4) does not have any pending charges as an adult for a
felony or a misdemeanor punishable by confinement in jail.
(b) The juvenile probation department shall:
(1) give the juvenile court notice that a person's
records are eligible for sealing under Subsection (a); and
(2) provide the juvenile court with a list of all
referrals relating to that person received by the department and
the outcome of each referral.
(c) Not later than the 60th day after the date the juvenile
court receives notice from the juvenile probation department under
Subsection (b), the juvenile court shall issue an order sealing all
records relating to the person named in the notice.
Sec. 58.256. APPLICATION FOR SEALING RECORDS. (a)
Notwithstanding Sections 58.253 and 58.255, a person may file an
application for the sealing of records related to the person in the
juvenile court served by the juvenile probation department to which
the person was referred. The court may not charge a fee for filing
the application, regardless of the form of the application.
(b) An application filed under this section must include
either the following information or the reason that one or more of
the following is not included in the application:
(1) the person's:
(A) full name;
(B) sex;
(C) race or ethnicity;
(D) date of birth;
(E) driver's license or identification card
number; and
(F) social security number;
(2) the conduct for which the person was referred to
the juvenile probation department, including the date on which the
conduct was alleged or found to have been committed;
(3) the cause number assigned to each petition
relating to the person filed in juvenile court, if any, and the
court in which the petition was filed; and
(4) a list of all entities the person believes have
possession of records related to the person, including the
applicable entities listed under Section 58.258(b).
(c) Except as provided by Subsection (d), the juvenile court
may order the sealing of records related to all matters for which
the person was referred to the juvenile probation department if the
person:
(1) is at least 18 years of age, or is younger than 18
years of age and at least two years have elapsed after the date of
final discharge in each matter for which the person was referred to
the juvenile probation department;
(2) does not have any delinquent conduct matters
pending with any juvenile probation department or juvenile court;
(3) was not transferred by a juvenile court to a
criminal court for prosecution under Section 54.02;
(4) has not as an adult been convicted of a felony; and
(5) does not have any pending charges as an adult for a
felony or a misdemeanor punishable by confinement in jail.
(d) A court may not order the sealing of the records of a
person who:
(1) received a determinate sentence for engaging in:
(A) delinquent conduct that violated a penal law
listed under Section 53.045; or
(B) habitual felony conduct as described by
Section 51.031;
(2) is currently required to register as a sex
offender under Chapter 62, Code of Criminal Procedure; or
(3) was committed to the Texas Juvenile Justice
Department or to a post-adjudication secure correctional facility
under Section 54.04011, unless the person has been discharged from
the agency to which the person was committed.
(e) On receipt of an application under this section, the
court may:
(1) order the sealing of the person's records
immediately, without a hearing; or
(2) hold a hearing under Section 58.257 at the court's
discretion to determine whether to order the sealing of the
person's records.
Sec. 58.257. HEARING REGARDING SEALING OF RECORDS. (a) A
hearing regarding the sealing of a person's records must be held not
later than the 60th day after the date the court receives the
person's application under Section 58.256.
(b) The court shall give reasonable notice of a hearing
under this section to:
(1) the person who is the subject of the records;
(2) the person's attorney who made the application for
sealing on behalf of the person, if any;
(3) the prosecuting attorney for the juvenile court;
(4) all entities named in the application that the
person believes possess eligible records related to the person; and
(5) any individual or entity whose presence at the
hearing is requested by the person or prosecutor.
Sec. 58.258. ORDER SEALING RECORDS. (a) An order sealing
the records of a person under this subchapter must include either
the following information or the reason one or more of the following
is not included in the order:
(1) the person's:
(A) full name;
(B) sex;
(C) race or ethnicity;
(D) date of birth;
(E) driver's license or identification card
number; and
(F) social security number;
(2) each instance of conduct indicating a need for
supervision or delinquent conduct alleged against the person or for
which the person was referred to the juvenile justice system;
(3) the date on which and the county in which each
instance of conduct was alleged to have occurred;
(4) if any petitions relating to the person were filed
in juvenile court, the cause number assigned to each petition and
the court and county in which each petition was filed; and
(5) a list of the entities believed to be in possession
of the records that have been ordered sealed, including the
entities listed under Subsection (b).
(b) Not later than the 60th day after the date of the entry
of the order, the court shall provide a copy of the order to:
(1) the Department of Public Safety;
(2) the Texas Juvenile Justice Department, if the
person was committed to the department;
(3) the clerk of court;
(4) the juvenile probation department serving the
court;
(5) the prosecutor's office;
(6) each law enforcement agency that had contact with
the person in relation to the conduct that is the subject of the
sealing order;
(7) each public or private agency that had custody of
or that provided supervision or services to the person in relation
to the conduct that is the subject of the sealing order; and
(8) each official, agency, or other entity that the
court has reason to believe has any record containing information
that is related to the conduct that is the subject of the sealing
order.
(c) On entry of the order, all adjudications relating to the
person are vacated and the proceedings are dismissed and treated
for all purposes as though the proceedings had never occurred. The
clerk of court shall:
(1) seal all court records relating to the
proceedings, including any records created in the clerk's case
management system; and
(2) send copies of the order to all entities listed in
the order.
Sec. 58.259. ACTIONS TAKEN ON RECEIPT OF ORDER TO SEAL
RECORDS. (a) An entity receiving an order to seal the records of a
person issued under this subchapter shall, not later than the 61st
day after the date of receiving the order, take the following
actions, as applicable:
(1) the Department of Public Safety shall:
(A) limit access to the records relating to the
person in the juvenile justice information system to only the Texas
Juvenile Justice Department for the purpose of conducting research
and statistical studies;
(B) destroy any other records relating to the
person in the department's possession, including DNA records as
provided by Section 411.151, Government Code; and
(C) send written verification of the limitation
and destruction of the records to the issuing court;
(2) the Texas Juvenile Justice Department shall:
(A) seal all records relating to the person,
other than those exempted from sealing under Section 58.252; and
(B) send written verification of the sealing of
the records to the issuing court;
(3) a public or private agency or institution that had
custody of or provided supervision or services to the person who is
the subject of the records, the juvenile probation department, a
law enforcement entity, or a prosecuting attorney shall:
(A) seal all records relating to the person; and
(B) send written verification of the sealing of
the records to the issuing court; and
(4) any other entity that receives an order to seal a
person's records shall:
(A) send any records relating to the person to
the issuing court;
(B) delete all index references to the person's
records; and
(C) send written verification of the deletion of
the index references to the issuing court.
(b) Physical or electronic records are considered sealed if
the records are not destroyed but are stored in a manner that allows
access to the records only by the custodian of records for the
entity possessing the records.
(c) If an entity that received an order to seal records
relating to a person later receives an inquiry about a person or the
matter contained in the records, the entity must respond that no
records relating to the person or the matter exist.
(d) If an entity receiving an order to seal records under
this subchapter is unable to comply with the order because the
information in the order is incorrect or insufficient to allow the
entity to identify the records that are subject to the order, the
entity shall notify the issuing court not later than the 30th day
after the date of receipt of the order. The court shall take any
actions necessary and possible to provide the needed information to
the entity, including contacting the person who is the subject of
the order or the person's attorney.
(e) If an entity receiving a sealing order under this
subchapter has no records related to the person who is the subject
of the order, the entity shall provide written verification of that
fact to the issuing court not later than the 30th day after the date
of receipt of the order.
Sec. 58.260. INSPECTION AND RELEASE OF SEALED RECORDS. (a)
A juvenile court may allow, by order, the inspection of records
sealed under this subchapter or under Section 58.003, as that law
existed before September 1, 2017, only by:
(1) a person named in the order, on the petition of the
person who is the subject of the records;
(2) a prosecutor, on the petition of the prosecutor,
for the purpose of reviewing the records for possible use:
(A) in a capital prosecution; or
(B) for the enhancement of punishment under
Section 12.42, Penal Code; or
(3) a court, the Texas Department of Criminal Justice,
or the Texas Juvenile Justice Department for the purposes of
Article 62.007(e), Code of Criminal Procedure.
(b) After a petitioner inspects records under this section,
the court may order the release of any or all of the records to the
petitioner on the motion of the petitioner.
Sec. 58.261. EFFECT OF SEALING RECORDS. (a) A person whose
records have been sealed under this subchapter or under Section
58.003, as that law existed before September 1, 2017, is not
required to state in any proceeding or in any application for
employment, licensing, admission, housing, or other public or
private benefit that the person has been the subject of a juvenile
matter.
(b) If a person's records have been sealed, the information
in the records, the fact that the records once existed, or the
person's denial of the existence of the records or of the person's
involvement in a juvenile matter may not be used against the person
in any manner, including in:
(1) a perjury prosecution or other criminal
proceeding;
(2) a civil proceeding, including an administrative
proceeding involving a governmental entity;
(3) an application process for licensing or
certification; or
(4) an admission, employment, or housing decision.
(c) A person who is the subject of the sealed records may not
waive the protected status of the records or the consequences of the
protected status.
Sec. 58.262. INFORMATION GIVEN TO CHILD REGARDING SEALING
OF RECORDS. (a) When a child is referred to the juvenile probation
department, an employee of the juvenile probation department shall
give the child and the child's parent, guardian, or custodian a
written explanation describing the process of sealing records under
this subchapter and a copy of this subchapter.
(b) On the final discharge of a child, or on the last
official action in the matter if there is no adjudication, a
probation officer or official at the Texas Juvenile Justice
Department, as appropriate, shall give the child and the child's
parent, guardian, or custodian a written explanation regarding the
eligibility of the child's records for sealing under this
subchapter and a copy of this subchapter.
(c) The written explanation provided to a child under
Subsections (a) and (b) must include the requirements for a record
to be eligible for sealing, including an explanation of the records
that are exempt from sealing under Section 58.252, and the
following information:
(1) that, regardless of whether the child's conduct
was adjudicated, the child has a juvenile record with the
Department of Public Safety and the Federal Bureau of
Investigation;
(2) the child's juvenile record is a permanent record
unless the record is sealed under this subchapter;
(3) except as provided by Section 58.260, the child's
juvenile record, other than treatment records made confidential by
law, may be accessed by a police officer, sheriff, prosecutor,
probation officer, correctional officer, or other criminal or
juvenile justice official unless the record is sealed as provided
by this subchapter;
(4) sealing of the child's records under Section
58.253 or Section 58.255, as applicable, does not require any
action by the child or the child's family, including the filing of
an application or hiring of a lawyer, but occurs automatically at
age 18, 19, or 25, as applicable based on the child's referral and
adjudication history;
(5) the child's juvenile record may be eligible for an
earlier sealing date under Section 58.256, but an earlier sealing
requires the child or an attorney for the child to file an
application with the court;
(6) the impact of sealing records on the child; and
(7) the circumstances under which a sealed record may
be reopened.
(d) The Texas Juvenile Justice Department shall adopt rules
to implement this section and to facilitate the effective
explanation of the information required to be communicated by this
section.
Sec. 58.263. DESTRUCTION OF RECORDS: NO PROBABLE CAUSE.
The court shall order the destruction of the records relating to the
conduct for which a child is taken into custody, including records
contained in the juvenile justice information system, if:
(1) a determination is made under Section 53.01 that
no probable cause exists to believe the child engaged in the conduct
and the case is not referred to a prosecutor for review under
Section 53.012; or
(2) a determination that no probable cause exists to
believe the child engaged in the conduct is made by a prosecutor
under Section 53.012.
Sec. 58.264. PERMISSIBLE DESTRUCTION OF RECORDS. (a)
Subject to Subsections (b) and (c) of this section, Section
202.001, Local Government Code, and any other restrictions imposed
by an entity's records retention guidelines, the following persons
may authorize the destruction of records in a closed juvenile
matter, regardless of the date the records were created:
(1) a juvenile board, in relation to the records in the
possession of the juvenile probation department;
(2) the head of a law enforcement agency, in relation
to the records in the possession of the agency; and
(3) a prosecuting attorney, in relation to the records
in the possession of the prosecuting attorney's office.
(b) The records related to a person referred to a juvenile
probation department may be destroyed if the person:
(1) is at least 18 years of age, and:
(A) the most serious conduct for which the person
was referred was conduct indicating a need for supervision, whether
or not the person was adjudicated; or
(B) the referral or information did not relate to
conduct indicating a need for supervision or delinquent conduct and
the juvenile probation department, prosecutor, or juvenile court
did not take action on the referral or information for that reason;
(2) is at least 21 years of age, and:
(A) the most serious conduct for which the person
was adjudicated was delinquent conduct that violated a penal law of
the grade of misdemeanor; or
(B) the most serious conduct for which the person
was referred was delinquent conduct and the person was not
adjudicated as having engaged in the conduct; or
(3) is at least 31 years of age and the most serious
conduct for which the person was adjudicated was delinquent conduct
that violated a penal law of the grade of felony.
(c) If a record contains information relating to more than
one person referred to a juvenile probation department, the record
may only be destroyed if:
(1) the destruction of the record is authorized under
this section; and
(2) information in the record that may be destroyed
under this section can be separated from information that is not
authorized to be destroyed.
(d) Electronic records are considered to be destroyed if the
electronic records, including the index to the records, are
deleted.
(e) Converting physical records to electronic records and
subsequently destroying the physical records while maintaining the
electronic records is not considered destruction of a record under
this subchapter.
(f) This section does not authorize the destruction of the
records of the juvenile court or clerk of court.
(g) This section does not authorize the destruction of
records maintained for statistical and research purposes by the
Texas Juvenile Justice Department in a juvenile information and
case management system authorized under Section 58.403.
(h) This section does not affect the destruction of physical
records and files authorized by the Texas State Library Records
Retention Schedule.
Sec. 58.265. JUVENILE RECORDS NOT SUBJECT TO EXPUNCTION.
Records to which this chapter applies are not subject to an order of
expunction issued by any court.
SECTION 19. Section 58.112, Family Code, is transferred to
Chapter 203, Human Resources Code, and redesignated as Section
203.019, Human Resources Code, to read as follows:
Sec. 203.019 [58.112]. REPORT TO LEGISLATURE. Not later
than August 15 of each year, the Texas Juvenile Justice Department
shall submit to the lieutenant governor, the speaker of the house of
representatives, and the governor a report that contains the
following statistical information relating to children referred to
a juvenile court during the preceding year:
(1) the ages, races, and counties of residence of the
children transferred to a district court or criminal district court
for criminal proceedings; and
(2) the ages, races, and counties of residence of the
children committed to the Texas Juvenile Justice Department, placed
on probation, or discharged without any disposition.
SECTION 20. Section 411.151(a), Government Code, is amended
to read as follows:
(a) The director shall expunge a DNA record of an individual
from a DNA database if the person:
(1) notifies the director in writing that the DNA
record has been ordered to be expunged under this section or Chapter
55, Code of Criminal Procedure, and provides the director with a
certified copy of the court order that expunges the DNA record; or
(2) provides the director with a certified copy of a
court order issued under Subchapter C-1, Chapter 58 [Section
58.003], Family Code, that seals the juvenile record of the
adjudication that resulted in the DNA record.
SECTION 21. The following provisions of the Family Code are
repealed:
(1) Section 58.001(b);
(2) Section 58.003;
(3) Section 58.006;
(4) Sections 58.007(c), (d), (e), and (f);
(5) Section 58.0071;
(6) Section 58.00711;
(7) Section 58.106(a-1); and
(8) Subchapter C, Chapter 58.
SECTION 22. The changes in law made by this Act apply to
records created before, on, or after the effective date of this Act.
SECTION 23. This Act takes effect September 1, 2017.