SEALING RECORDS IN JUVENILE COURT By Miriam Riskind

TFC 58.003(a) Sealing is authorized on the application of the person who has been found to have engaged in delinquent conduct or conduct indicating a need for supervision, or a person taken into custody to determine whether the person engaged in juvenile conduct indicating a need for supervision. Juvenile court can, on its own motion, order records sealed even without a prior application where authorized by law. Sealing can also be initiated on receipt of DPS certification that the records of the juvenile are eligible.

Rights To Sealing Six different circumstances covered by TFC 58.003: (1) NEVER permitted when the juvenile received a determinate sentence; (2) Discretionary when juvenile received a felony adjudication, is 19 or older, juvenile was not transferred to adult court for prosecution (certified), the records have not been used in evidence in the punishment phase of a criminal proceeding, and person has not been convicted of a felony after age 17;

Rights to Sealing (3) Two years after the juvenile exits the system for a non-adjudication disposition or adjudication for a misdemeanor or conduct indicating a need for supervision. Since that time, the person cannot have been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

Rights to Sealing (4) Sealing is permitted in the discretion of the court any time after the juvenile exits the system following a non-adjudication disposition or an adjudication for a non-felony. This eliminates the 2 year waiting period but it still requires no adjudications or convictions since the applicant exited the system.

Rights to Sealing (5) Immediate sealing is required if, at the end of a trial, the juvenile is found not to have engaged in each offense alleged in the petition. The court shall immediately seal the records and files relating to the case. This is mandatory and reaches only the records and files in the case for which the juvenile was tried and found not to have engaged in delinquent conduct. (6) The court may order the sealing of records for a juvenile adjudicated for a felony or misdemeanor if the juvenile successfully completes a drug program under Chapter 469, Health and Safety Code.

Rights to Sealing The court may order sealing at once without a hearing, or hold a hearing to determine whether to seal. If the records are sealed, a juvenile probation department or prosecuting attorney may maintain a separate record of the juvenile’s name, date of birth, and

Rights to Sealing the date the juvenile completed the drug program. They can manage this until the juvenile’s 17th birthday. At that time, or as soon as practicable, they shall send that information and record to the court to be added to the other sealed records. A juvenile applicant can waive the right to a hearing in writing but the court and prosecuting attorney must consent to the waiver.

Contents of the Application Application must be filed in the juvenile court in the county where the proceedings occurred. Application must contain applicant’s full name, sex, race or ethnicity, date of birth, driver’s license or identification card number, and social security number. The charge against the applicant must be

Contents of the Application contained, or the charge for which the applicant was referred to the juvenile court, the date on which and the county where the offense was alleged to have been committed, and, if a petition was filed, the cause number and the court and county in which the petition was filed. TFC 58.003(p)

Notice Requirements Reasonable notice of the hearing must be given to: The person who made the application or who is the subject of the records named in the application; The prosecuting attorney for the juvenile court; The authority granting the discharge if the final discharge was from an institution or on parole; The public or private agency or institution having custody of records named in the application, and (5) The law enforcement agency having custody of files or records named in the application.

Time To Comply With Order Once the court has approved the application and signed the Order, a certified copy must be sent to all those who received notice. These entities shall send all records ordered sealed to the court before the 61st day after the date the order is received. TFC 58.003 (e)

The Bottom Line A person whose records have been sealed is not required in any proceeding or in any application for employment, information, or licensing, to state they have been the subject under Title 3, and any statement they have never been found to be a delinquent child shall never be held against the person in any criminal or civil proceeding.

Destruction of Records The court shall order the destruction of records relating to conduct for which a juvenile is taken into custody, including records contained in the Juvenile Justice Information System if there was no probable cause to believe the child engaged in the conduct and the case was not referred to a prosecutor and there was a determination that no probable cause existed to believe the child engaged in the conduct made by a prosecutor. TFC 58.006 The records shall be destroyed if the child is not

Destruction of Records referred to juvenile court on or before the 10th day after the date the child is taken into custody under TFC 52.01. TFC 58.001 c On the motion of a person in whose name the records were kept , or on the court’s own motion, the court may order the destruction of records that have been sealed if: the records relate to conduct that did not violate a penal law of a felony or a misdemeanor punishable by confinement in jail; five years have elapsed since the person’s 16th birthday; (3) the person has not been convicted of a felony.

Restricted Access to Juvenile Records In 2001, the Legislature added provisions to TFC 58 to restrict access. Rationale: research showed that only a small percentage of juveniles took advantage of sealing, due largely to economic reasons. Under TFC 58, Subchapter C, the records remain in place but under restricted access, available only to criminal justice agencies for those purposes.

Restricted Access For other purposes such as employment, education and occupational licensing, those records are considered no longer in existence. The individual can deny the events authorizing the restricted access ever occurred. When a juvenile is put on probation or committed to TJJD, officials will advise the juvenile about the system and how restricted access changes it.

The Role of DPS The Department of Public Safety (DPS) shall certify to the juvenile probation department to which a referral was made that resulted in information being submitted to the Juvenile Justice Information System that the records are subject to automatic restriction of access if:

The Role of DPS a) the person is at least 21 years of age; b) the juvenile case did not include violent or habitual felony conduct resulting in the proceedings in the juvenile court referred to a grand jury – determinate sentence; c) the juvenile case was not certified to the criminal court; AND d) DPS has not received a report in its

The Role of DPS criminal history system that the person was granted deferred adjudication for or convicted of a felony or a misdemeanor punishable by confinement in jail for an offense committed after the person became 17 years of age.

The Role of DPS Remember that merely because the case was referred to a grand jury does not automatically become a determinate sentence case. If the grand jury did NOT approve it as a determinate sentence case, it is handled as a regular juvenile case and it is eligible for restricted access.

The Role of DPS Once DPS certifies records are subject to restricted access, DPS may not disclose any information from their records in response to inquiries from law enforcement, criminal or juvenile justice agencies, governmental or other agency given access to information under CH. 411, Government Code, or any other person, agency, entity or

The Role of DPS organization. DPS SHALL respond to the requests for information by saying that the records DO NOT EXIST. TFC 58.204. EXCEPTIONS: If a criminal justice agency is making an inquiry for a criminal justice purpose such as investigation, prosecution and punishment, and for screening applicants for employment by a criminal

The Role of DPS justice agency, the records exist. The right of restricted access does not apply in criminal investigations, prosecutions and court proceedings. Unless it is for those reasons, DPS must say the records do not exist.

The FBI Once DPS certifies records are subject to restricted access, DPS shall request the National Crime Information Center (NCIC) of the FBI to place the information on the individual on restricted access. If it is not possible, the FBI is requested to delete the information. It is unclear whether this is being done at this time.

The FBI The FBI’s Criminal Justice Information Services Division (CJIS) serves as the central repository for fingerprint identification and related criminal history record information (CHRI). As custodian of such information, the CJIS Division does not have the authority to effect any modification unless specifically notified to do so by the owner of the information.

The FBI The CJIS Division treats a sealing order concerning a non federal arrest as an expungement of that arrest and deletes the pertinent information from the FBI Criminal File. However, notifications must be submitted to the state central repository. Thus, any request for modification or removal of CHRJ originating from the State

The FBI of Texas must be processed through and received from the Crime Records Service, Texas Department of Public Safety, P. O. Box 4143, Austin, Texas 78765-4143, (512) 424-2524. It is up to the attorney filing the Order with the Agency to follow up directly to obtain the status.

The FBI This attorney has been assured that the CJIS Division will comply with requests processed through and submitted by the proper authorities. The FBI’s CJIS Division removes fingerprints and related arrest information from its system as a matter of comity, upon receipt of notification from state authorities through established channels which provide authentication for

The FBI the expungement action. The FBI’s CJIS Division is NOT mandated to comply with all edicts contained in a state/local court order, such as filing an affidavit of compliance or return of finger prints, photographs, etc.

Effects of Restricted Access The individual can deny the existence of their records (taking into custody, prosecution and adjudication) in applications for employment, licensing or other public or private benefit. This is the same right persons who have sealed their records have. This right to deny applies in all situations except when the individual is testifying as a

Effects of Restricted Access defendant in a criminal trial. The right to restricted access cannot be waived by the individual. This is to prevent prospective employers and others from obtaining access by requiring waivers as a condition of application. The right is there to protect your client. TFC 58.206. Be sure they understand this right.

Not Part of the Juvenile Justice Information System Juvenile Motor Vehicle Records Municipal and JP court records Records subject to disclosure under Ch. 62, Texas Code of Criminal Procedure Juvenile court, prosecutor and probation records Agency records Law Enforcement records

Gang Records Chapter 61, Code of Criminal Procedure covers gang records. It contains information about street gangs maintained by law enforcement as an intelligence data base. It is operated by DPS and includes juveniles and adults. A person can be put into this system if there is reasonable suspicion to believe gang members have

Gang Records engaged in crime. It can be accessed by criminal justice agencies, courts or the subject person. The attorney representing the juvenile can also access this information. Adults or parents of the child may review the records and can remove if the person is a juvenile and has gone 2 years without an arrest.

Gang Records The 2 year period does NOT include time the child was committed to TJJD or in TDCJ. Article 61.07. These records are exempt from restriction of access: Sex offender registration records Criminal combinations and street gangs TFC 58.202 – access cannot be restricted to these records

DNA Samples DNA samples are now required if the juvenile is placed on probation for a 3g felony (murder, capital murder, indecency with a child, aggravated sexual assault, aggravated kidnapping, aggravated robbery and Ch. 481, Health and Safety Code) or felonies involving use or exhibition of a deadly weapon. TFC 54.0409.

Photographs and Fingerprints Unless the child is taken into custody or referred to the juvenile court for conduct that is a felony or misdemeanor punishable by confinement in jail, a child may not be photographed or fingerprinted without the consent of the juvenile court. If the parents or guardian voluntarily consent in writing, law enforcement can fingerprint and photograph the child.

Photographs and Fingerprints If a child is reported missing, identifying information is to be entered into the missing children’s clearinghouse database. TFC 58.002, 58.0021

Notification to Schools Article 15.27, Code of Criminal Procedure – major exception to the confidentiality provisions for juveniles Creates a notification system by juvenile justice officials to the schools when a juvenile is taken into custody, adjudicated or changes schools while on probation or parole.

Notification to Schools School officials are required to report offenses which occur on school grounds or at school functions to law enforcement. If it cannot be determined in which school district the person arrested or referred is enrolled, the agency is required to notify the district in which “the student is believed to be enrolled.”

Sharing Information – Interagency Agreements Within each county, the juvenile probation department and the district school superintendent may enter into a written interagency agreement to share information about juvenile offenders. This information must relate to the juvenile system’s ability to serve, before adjudication, the student whose records are being released. TFC 58.0051

Sharing Information – Interagency Agreements The Texas Juvenile Probation Commission may enter into an interagency agreement to share educational information for research, audit and analytical purposes with the Texas Education Agency, Texas Juvenile Justice Department, and the Texas Department of Criminal Justice. TFC 58.0072, TEC 37.084

Use of Juvenile Record in Other Proceedings TFC 51.13 allows the juvenile’s record to be used in other juvenile justice code proceedings in which the juvenile is a party, in sentencing proceedings in criminal court, against the party, and in civil commitment proceedings as an adult sexual predator.

Juvenile Record at Penalty Phase of Criminal Trial Evidence may be offered by the State and the defendant of an adjudication of delinquency based on a violation of the grade of felony or a misdemeanor punishable by confinement in jail. Fineable misdemeanors are not admissible.

Juvenile Record at Penalty Phase of Criminal Trial Only the juvenile court judgment of adjudication or adjudication and disposition is admissible in the penalty phase of a criminal trial, and the State may offer a certified copy of the judgment into evidence. Disposition evidence can be introduced by the State.

Unadjudicated Juvenile Offenses The State is permitted to introduce evidence of unadjudicated criminal conduct at the penalty phase. The State can introduce any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally

Unadjudicated Juvenile Offenses responsible, regardless of whether he has been previously charged with or finally convicted of the crime or act.

Juvenile Adjudication as Prior Felony Conviction TFC 51.13 was amended to create an exception that a juvenile adjudication is not a conviction of a crime. It provides a child who engaged in conduct after January 1, 1996 that constitutes a felony resulting in commitment to TJJD, whether determinate, non-determinate or determinate habitual felony conduct, or a modification hearing,

Juvenile Adjudication as Prior Felony Conviction IS A FINAL FELONY CONVICTION only for the purposes of 12.42(a), (b), c(1) and (e) Penal Code. Juvenile adjudications cannot be used for either or both of the prior felony convictions needed to invoke the habitual felony offender provision with its minimum 25 years as set out in Penal Code 12.42(d).

Juvenile Justice Information System - JJIS Under TFC 58.102, DPS is responsible for maintaining a database and recording data for a computerized juvenile justice information system (JJIS). Other agencies involved are TJJD, Criminal Justice Policy Council, juvenile courts and clerks of juvenile courts.

Purpose of JJIS Its purpose is to provide information to the agencies and personnel within the system accurate information as to the children who come into the system. Where authorized by law, it also provides information on children who come into the system to adult criminal justice agencies.

Purpose of JJIS Statewide database provides information used for decision making regarding subsequent cases involving the same juvenile. It assists in solving crimes because any fingerprints found can be compared to those in the database.

Transmittal of Information to the FBI All information submitted to JJIS by DPS is forwarded to the FBI pursuant to TFC 58.102(a)(2). This information becomes part of the nationwide computerized criminal history database maintained by the FBI, and access to that information is controlled by federal laws.

What is Included in JJIS Only felonies and jailable misdemeanors are included in the system. Conduct indicating a need for supervision is NOT included. Information is based on a referral to the juvenile court, not just taking the juvenile into custody.

What is Included in JJIS If the child is not referred to the court within 10 days, all information created about the juvenile, including fingerprints and photographs, must be destroyed, UNLESS they are placed in a first offender program or an informal disposition.

Access to Information Information is confidential for the use of DPS. It may not be disseminated except with the permission of the juvenile, to military personnel of Texas or the United States. It may be disseminated to an agency or person to which DPS may grant access through Government Code 411.083.

Access to Information It may be disseminated to a juvenile justice agency, to TJJD for analytical purposes. It may be disseminated to the office of Independent Ombudsman of TJJD.

Statewide Information and Case Management System System is being developed to provide accurate information at the statewide level relating to children who come into contact with the juvenile justice system, to facilitate communication and information sharing among authorized entities in criminal and juvenile justice agencies and partner agencies regarding effective and efficient

Statewide Information and Case Management System Identification of and service delivery to juvenile offenders. It is authorized to collect and maintain all information related to juvenile offenders and the offenses they commit, including information contained in the statewide and local juvenile justice information systems. TFC 58.404