1. SEALING OF JUVENILE RECORDS
Juvenile and Capital Advocacy Project (JCAP)
Katya Dow
Legal Programs Director
Professor of Practice, UH Law Center

2. JCAP Program for Sealing and Expunction
Started in May 2015
Have sealed over 400 juvenile records in that time.
Have a 97* success rate in sealing all requested records.
Conduct an annual audit so that we can research issues that arose during process that prevented an agency from complying with order.

3. WHAT ARE THE COLLATERAL CONSEQUENCES TO YOUTH WITH JUVENILE RECORDS?

4. Barriers to Employment
Nearly 9 in 10 employers conduct juvenile and criminal background checks on potential employees.**
**Society for Human Resource Management, "Background Checking - The Use of Criminal Background Checks in Hiring Decisions" (2012).

5. Barriers to Employment
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 and the child’s juvenile record is a permanent record unless the record is sealed.
Tex. Fam. Code, (c) (1)(2) (2017).
Individuals must therefore report these offenses when asked about criminal history on employment applications.

6. Barriers to Employment
Employers are more than 50% less likely to make a callback or job offer to applicants with a criminal record.*
*Michelle Natividad Rodriguez and Maurice Emsellem, National Employment Law Project, 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks for Employment (March 2011).

7. Barriers to Employment
Bad for juveniles, bad for society: Many studies have shown that providing individuals the opportunity for stable employment actually lowers crime recidivism rates and thus increases public safety.*
*Michelle Natividad Rodriguez and Maurice Emsellem, National Employment Law Project, 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks for Employment (March 2011).

8. Barriers to Education
Thankfully, the Common Application used to apply to colleges nationwide just announced it will no longer ask about criminal history:   This was because Sen. Durbin and Sen. Schatz made a huge effort for national policies to stop hindering youth from moving forward because of open records.*
However, more than half of universities nationwide still collect juvenile and criminal justice information during the admissions process, apart from the Common Application.** *
**Center for Community Alternatives, Boxed Out: Criminal History Screening and College Application Attrition (2015), at 12 [Boxed Out],

9. Barriers to Education
Very commonly, youth with juvenile records will drop out of the application process once they realize information about their records must be disclosed or investigated by the school.
*Id.

10. Barriers to Education
In addition, youth can be barred from receiving financial aid for criminal or juvenile offenses.* *

11. Public Housing
A juvenile adjudication may foreclose an entire family from seeking public housing: Following the passage of the National Affordable Housing Act, the United States Supreme Court upheld Public Housing Authorities’ abilities to evict residents based on the offenses of their relatives, and public housing authorities are permitted to consider juvenile adjudications in determining whether families are eligible. *
*National Affordable Housing Act, Pub. L. No , 110 Stat. 836q (1996); Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002); Margaret Colgate Love et al., Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2013).

12. Law Enforcement and DA Access
Juvenile records are accessible by law enforcement, so adult with juvenile records may be treated more harshly. Recent case – criminal mischief as adult, his juvenile record was part of the DA file. DA may not be able to use this information in trial, but it may impact potential negotiation of case.

13. Youth in Foster Care
Will affect their ability to obtain better placements. Recent case – youth with deferred and then non-suited offense; case worker claimed she could only place him in an emergency shelter for many months due to his record.

14. JCAP Experience
Over the course of four years doing these sealings, we can attest to seeing many individuals who have been affected in all of these ways by having a juvenile record that hasn’t been sealed.

15. HOW HAS OUR GREAT STATE LEGISLATURE RECENTLY ADDRESSED THIS ONGOING PROBLEM? SB 1304, TEX. FAM. CODE, CH. 58

16. GOOD NEWS, BAD NEWS: “SEALING RECORDS WITHOUT AN APPLICATION”
PURPORTED “GOOD NEWS”: the legislature mandated that individuals with juvenile records for non-adjudications or misdemeanors become eligible for the process of “sealing records without an application” when they turn 19. BAD NEWS: Wisely, the legislature did not call this “automatic sealing,” because it is far from automatic. It requires a number of maneuvers by a number of different agencies, all of which require additional manpower. And it is unfunded. So it’s not actually happening.

17. Sec. 58.253: Sealing Records without Application -- Who is eligible?
(b) A person who was referred to a juvenile probation
department for delinquent conduct is eligible if:
(1) at least 19 years old
(2) either was not adjudicated or was adjudicated for a misdemeanor
(3) no pending delinquency matters
(4) not certified as an adult
(5) not convicted of adult felony or “misdemeanor punishable by confinement in jail”
(6) no pending adult charges for felony or misdemeanor punishable by confinement

18. Sec. 58.254 : How sealing without application is supposed to work
Eligible person turns 19
DPS will inform JPDs of records eligible for automatic sealing
Within 60 days of receiving certification from DPS, JPDs will confirm or deny eligibility and notify court
Within 60 days of court receiving notice, juvenile court will issue order sealing records and send these orders out to all of the agencies which may have these records.

19. Issues: Court Requirements of Service
As with all attorneys who perform juvenile sealings in Harris County, we take on the responsibility of sending out service of notices of hearing, as well the signed sealing orders to all of the agencies because our juvenile court system has not been equipped to do this.

20. Issues: Court Requirements of Service
Each juvenile record is held by at least 5 agencies that the order must be served on:
HCJPD
DA’s office
DPS
HCSO
Arresting agency if not HCSO
Often schools and school districts have these records as well

21. Since this law was made to be applied retroactively to all juvenile records ever created, in Harris county alone around 200,000 records would need to be evaluated for eligibility, with new records being added every day.

22. Assuming HCJPD is able to weed through all of these records and determine that just 50% of them are eligible for sealing (though it is likely more), that would mean our juvenile courts would be required to send out orders on 100,000+ records to all of the agencies that have them, with new records being added to this number every day.

23. It’s not happening.

24. Statewide
It appears it is not happening in other jurisdictions either, because in a recent FOI request to DPS that we conducted on whether there has been an increase in sealed records, there was no increase.

25. SO DO NOT TELL YOUR JUVENILE CLIENTS THEIR RECORD WILL BE SEALED WITHOUT ANY ACTION ON THEIR PART
When you are advising your client, whether you are an attorney or a probation officer, about what having a juvenile record means, you need to be clear about this! Sec requires what juvenile probation departments are required to give to juveniles in writing about the consequences of having a juvenile record and sealing options, but attorneys should be discussing this with their clients as well, and to be accurate, you should definitely be discussing the issues with sealing without an application or you are not giving your client complete information.

26. FILING AN APPLICATION FOR SEALING RECORDS: HOW HAS THIS CHANGED?

27. Sec is REPEALED
Sec Application for Sealing Records
(a) notwithstanding new “automatic sealing” provisions, person may file application to seal
(c) except as provided by (d), court may order sealing (it is discretionary by the court) if:
(1) person is 18 or younger than 18 but 2+ years have elapsed from discharge in each matter;
(2) no juvenile delinquency matters pending;
(3) not certified as an adult;
(4) no adult felony convictions; and
(5) no pending adult charges for felony or “misdemeanor punishable by confinement in jail”

28. (d) ineligible for sealing if:
(1) determinate sentence in conduct listed under Sec or habitual felony conduct as described by ;
(2) currently required to register as a sex offender;
(3) was committed to TJJD or to a post-adjudication secure correctional facility (unless person was discharged from agency to which they were committed).

29. WAIT! ISN’T SOMETHING MISSING?

30. YES. There is no longer any avenue to seal records immediately after “the last action in the case.”
(d) is repealed and there is no language like it in the new statute.
An individual only becomes eligible upon turning 18 or if two years have elapsed from discharge.
This means that there are now a lot of 16 and 17 year olds who are wanting to apply to college or get a job who will need to divulge this on applications, including those who completed divert 90, divert 180, deferred adjudication and those whose cases were non-suited for no probable cause.

31. You need to let your clients know this when you are discussing plea deals!
Note re Not Guilty Verdicts and Conduct Indicating a need for Supervision

32. Strangely, individuals with felony formal adjudications are now eligible earlier than they used to be to file an application for sealing
They used to have to be 19 years old; now they are lumped together with all of the non-suits and misdemeanors and only need to be 18. (However, they are not eligible at all for sealing without an application, so you need to be sure to let any client with a felony adjudication know they need to file an application to try to seal it.)

33. Process

34. The court may not charge a fee for filing the application, regardless of the form of the application. Sec (a)
Some courts outside of Harris County have tried to charge us, but when presented with this language, backtracked and said they would only charge a fee if we wanted them to complete service on the agencies.

35. What an Application for Sealing must contain (Forms for Application and Order included in materials)
An application 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 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 (listed in Sec (b) and enumerated on next slide.)

36. List of agencies to include in Application and Order
(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 (Always include HCSO); (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 (If youth is or was in DFPS care, always include them!); 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.

37. Under the statute, the court clerk is supposed to be sending out the granted sealing orders to all of the agencies. Sec (c)
Right now this isn’t happening, so counsel for the applicant will continue to send out service until this can feasibly be implemented.

38. Helpful Hint
If you can include the offense report number as well as the CJIS number, this helps DPS, HCSO and the arresting agencies locate this record information more easily. In Harris County, HCJPD is very helpful in assisting people to obtain this information.

39. WHAT IS THE EFFECT OF SEALING. Sec. 58. 259
WHAT IS THE EFFECT OF SEALING? Sec.    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) DPS 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 , 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, 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.

40. Note that the way this is set up, the court receives all of the verification notices from the agencies when they comply. Because this goes into a file that is then sealed by the court, it is pretty much impossible to verify when, or if, this has been done. Because of this, we include verification forms in our order requesting that the agencies verify to us their compliance as well.

41. Templates – Come and Get Them
We are happy to share our resources, including templates, pleadings and contact lists.
All that we ask is that you attend a Sealing CLE before we share them with you. The reason for this is that we have gotten several clients over the past years that have had attorneys either evaluate their eligibility for sealing incorrectly or have performed the sealings incorrectly. We just want to make sure everyone out there doing this is doing it right.
For those of you interested, please let me know after this talk – we will be scheduling a training very soon.

42. Response requirements of agencies upon receipt of order to seal
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. (DA’s Office)

43. Sec. 58.261. EFFECT OF SEALING RECORDS
(a) A person whose records have been sealed under this subchapter or under Section , 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.

44. Sec. 58.261. EFFECT OF SEALING RECORDS
(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.

45. Katya Dow katya@jcaptexas.org 713-743-1011