ETHICS: RESTRICTED ACCESS AND SEALING OF JUVENILE RECORDS IN TEXAS

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1 ETHICS: RESTRICTED ACCESS AND SEALING OF JUVENILE RECORDS IN TEXAS PRESENTED BY RILEY N. SHAW CHIEF JUVENILE PROSECUTOR TARRANT COUNTY CRIMINAL DISTRICT ATTORNEY S OFFICE OFFICE rshaw@tarrantcountytx.gov *PAPER WRITTEN BY KACI SOHRT DIRECTOR OF COURT ADMINISTRATION TRAVIS COUNTY JUVENILE PROBATION DEPARTMENT OFFICE kaci.sohrt@co.travis.tx.us *THANK YOU, KACI!* 1

2 JUVENILE RECORDS IN TEXAS CONFIDENTIALITY The general rule is that all records and files concerning a child, including information about a child from which a physical record or file could be generated, are confidential and may not be shared unless specifically authorized by law. COURT, PROBATION DEPARTMENT, & PROSECUTING ATTORNEY RECORDS The physical records and files of a juvenile court, a clerk of court, a juvenile probation department, or a prosecuting attorney that relate to a child who is a party to a proceeding under Title 3, Family Code, are open to inspection or copying only by 1 : 1. the judge, probation officers, and professional staff or consultants of the juvenile court; 2. a juvenile justice agency with custody or control over juvenile offenders; 3. an attorney for a party to the proceeding; 2 4. 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 5. with leave of the juvenile court, anyone having a legitimate interest in the proceedings or work of the court. The juvenile probation department (but not the other entities) may release information contained in its records without leave of the court pursuant to guidelines adopted by the juvenile board. 3 PROVIDER RECORDS Records and files of a public or private agency supervising the child by arrangement of the juvenile court or having custody of the child under court order, including information obtained for the purpose of diagnosis, examination, evaluation, or treatment or for referring a child for treatment is confidential and may be disclosed only to 4 : 1. professional staff or consultants of the agency or institution; 2. 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 if there is a written confidentiality agreement; 1 Texas Family Code (b) 2 Parents are parties to a proceeding under Title 3; however, the attorney needs to be an attorney for Title 3 proceeding, not for another proceeding involving some or all of the same parties. 3 Texas Family Code (i) 4 Texas Family Code

3 6. TDCJ and TJJD for the purpose of maintaining statistical records of recidivism and for diagnosis and classification; or 7. with leave of the juvenile court, anyone having a legitimate interest in the proceedings or work of the court. LAW ENFORCEMENT RECORDS Law enforcement records and files concerning a child may be inspected or copied only by 5 : 1. a juvenile justice agency with custody or control over juvenile offenders; 2. a criminal justice agency as defined by Government Code , which is a. a federal or state agency engaged in the administration of criminal justice under a statute or executive order and that allocates a substantial portion of its annual budget to the administration of criminal justice; or b. a nongovernmental railroad or campus police department that has obtained an originating agency identifier from the FBI; and 3. the child and the child s parent or guardian. Before the child or the child s parent or guardian may inspect or copy the law enforcement record or file, the custodian of the record must redact 6 : 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 disclosure under Chapter 552, Government Code (Public Information Act) or other law. Law enforcement records concerning the child from which a record could be generated shall be 7 : 1. if maintained on paper or microfilm, kept separate from adult files and records; 2. if maintained electronically in the same computer system as adult records or files, accessible under controls separate and distinct from controls to access electronic data concerning adults; and 3. maintained on a local basis only and sent to a state or federal depository only as required by Subchapter B (JJIS), Subchapter D (Local JJIS), and Subchapter E (Caseworker/JCMS). 5 Texas Family Code (e) 6 Texas Family Code (j) 7 Texas Family Code (c) 3

4 EXCEPTIONS The confidentiality provisions do not apply to the following 8 : 1. Records maintained under laws regulating operation of motor vehicles; 2. Records subject to disclosure under Chapter 62, Code of Criminal Procedure (sex offender registration); and 3. Records maintained by a municipal or justice court, except that under other provisions of law, all records and files and information from which a record or file could be created of a child charged with anything other than a traffic-offense in municipal or justice court are confidential and may not be disclosed to the public. 9 Other exceptions: 1. Records must be released as required by Article 15.27, Code of Criminal Procedure After transfer of determinate sentence probation to adult court, the petition, grand jury approval, adjudication, and transfer order become a part of the district clerk s public record If certified as an adult, petition for discretionary transfer, order of transfer, and order of commitment (to jail or juvenile detention) become a part of the district clerk s public record If a prosecutor in an adult case requests a record of adjudication for the purposes of punishment under Section 3(a), Article 37.07, Code of Criminal Procedure, the court must certify and provide a copy to the prosecutor. 13 AIDING APPREHENSION The juvenile court can release information to the public if there is a directive to apprehend or warrant arrest out for a child who cannot be located. This information is shared for the purpose of apprehending the child. The information that may be shared is: Name, including aliases; Physical description (sex, weight, height, ethnicity, eye color, hair color, scars, marks, tattoos); Photograph of the child; Description of alleged conduct, including level and degree of offense. 14 SHARING OF RECORDS 8 Texas Family Code (a) 9 Texas Family Code , but see Code of Criminal Procedure Article (b) for a list of entities who may inspect those records [judges/court staff; criminal justice agency for criminal justice purpose; DPS; attorney for a party to the proceeding; child defendant; or defendant s parent/guardian/managing conservator]. 10 Texas Family Code (b) 11 Texas Family Code Texas Family Code 54.02(s) 13 Texas Family Code (g) 14 Texas Family Code (h) 4

5 In 2011, in order to ensure more coordinated care for juveniles, the legislature passed laws that make it possible for otherwise confidential information to be shared with certain entities for certain reasons. EDUCATIONAL RECORDS At the request of a juvenile service provider (JSP), which is defined as a governmental entity that provides juvenile justice or prevention, medical, educational, or other support services to a juvenile, an independent school district (ISD) or charter school must provide to the requesting JSP confidential information contained in the student s educational records if the student has been: 1. taken into custody under Family Code 52.01; or 2. referred to a juvenile court for allegedly engaging in delinquent conduct or conduct indicating a need for supervision. The JSP that receives the information must certify in writing that they have agreed not to disclose the information to a third party, other than another JSP, and may use the information only to verify the identity of the student involved in the juvenile justice system and to provide delinquency prevention or treatment services to the student. The shared information retains its confidential status and the JSP receiving it may only share it with a third party as directed by a court order or as otherwise authorized by law. The shared information is not subject to disclosure under the Public Information Act. The school that shares the records must keep a record of the shared information for at least seven years. 15 NON-EDUCATIONAL RECORDS The non-educational records provision applies only to multi-system youth, which is defined as a person under 19 who has received services from two or more juvenile service providers 16. A JSP, upon receipt of a request for information from another JSP, must disclose the youth s personal health information or a history of governmental services provided to the youth, including the youth s identity, medical records, assessment results, special needs, program placements, and psychological diagnoses. The only limitation is that the information may be disclosed only for the purposes of identifying a multi-system youth, coordinating and monitoring care for the youth, and improving the quality of juvenile services provided to the youth. The shared information retains its confidential status and the JSP receiving it may only share it with a third party as directed by a court order or as otherwise authorized by law. The shared information is not subject to disclosure under the Public Information Act. 17 SEALING OF RECORDS If a juvenile record is sealed, the following things happen: 1. The adjudication is vacated and the proceeding is dismissed and treated as if it had never occurred, except for the purposes of a subsequent capital prosecution; 15 Texas Family Code As a school is a JSP, every child in the juvenile justice system who has attended school is a multi-system youth. 17 Texas Family Code

6 2. All law enforcement, prosecuting attorney, clerk of court, juvenile court, and public or private agency or institution records ordered sealed must be sent to the court within 61 days; 3. All index references to the records must be deleted within 61 days and verification of the deletion sent to the court; 4. All the entities listed in #2 must reply no record exists in response to an inquiry in any matter 18 ; 5. The juvenile is not required to state in any proceeding or application for employment, information, or licensing that he or she was ever a party to a proceeding in the juvenile system and such denial cannot be held against the person in a criminal or civil proceeding. 19 NOT GUILTY FINDING If the child is found not guilty on all counts, the court shall immediately order the records sealed. 20 NO ADJUDICATION OR CINS/MISDEMEANOR ADJUDICATION GENERALLY MANDATORY If the records relate to a CINS or Misdemeanor adjudication or to a person taken into custody and never adjudicated, on application of the person, the court shall on its own motion order sealing if the court finds: 1. Two years have passed since the final discharge or last official action in the case (if no adjudication); and 2. During that time, the person has not been convicted of a felony or misdemeanor involving moral turpitude or adjudicated for delinquent conduct or CINS and there are no pending proceedings seeking conviction or adjudication Texas Family Code (g) 19 Texas Family Code (j) 20 Texas Family Code (d) 21 Texas Family Code (a) 6

7 DISCRETIONARY If the criteria for mandatory sealing are met, the court may in its discretion order the records sealed earlier. A hearing is required unless the applicant waives the right to a hearing in writing and the prosecutor consents. 22 FELONY ADJUDICATION GENERALLY Felony sealing is always discretionary. On application of the person, the court may order sealing only if: 1. The person is 19 years of age or older; The person was not certified as an adult; 3. The records have not been used as evidence in the punishment phase of an adult criminal proceeding; and 4. The person has not been convicted of a felony after becoming age A hearing is required unless the applicant waives the hearing in writing and the prosecutor consents. SPECIAL SEALING PROVISIONS DRUG COURT Court may order sealing for a child adjudicated for CINS, felony, or misdemeanor once the child successfully completes a drug court program under Government Code Chapter 123 or former law (Health and Safety Code Ch. 469). The sealing can be ordered with or without a hearing. The prosecutor may maintain a separate record of child s name, birth date, and date of program completion until child turns 17, at which time it must be added to the child s other sealed records. 25 The court may order the sealing any time after final discharge or the last official action in the case (if no adjudication), subject to any applicable hearing provisions in (e). 26 CINS PROSTITUTION If a child is taken into custody or adjudicated for engaging in conduct constituting prostitution as defined by 51.03(b)(7), the court on its own motion and without a hearing shall order sealing of records related to that conduct. 27 The prosecutor may maintain a separate record of child s name, birth date, and date of program completion until child turns 17, at which time it must be added to the child s other sealed records. The court may order the sealing any time after final discharge or the last official action in the case (if no adjudication). 28 CINS ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR ( SEXTING ) 22 Texas Family Code (d) and (e) 23 This is a 2011 legislative change; previously it was 21 years of age. 24 Texas Family Code (c) 25 Texas Family Code (c-1) and (c-2) 26 Texas Family Code (d) 27 Texas Family Code (c-3) and (c-4) 28 Texas Family Code (d) 7

8 Court may order sealing for a child taken into custody or adjudicated for CINS conduct described by Penal Code ( sexting statute) under Family Code 51.03(b)(8) if the child successfully completes an Educational Program under Education Code The sealing can be ordered with or without a hearing. The prosecutor may maintain a separate record of child s name, birth date, and date of program completion until child turns 17, at which time it must be added to the child s other sealed records. 29 The court may order the sealing any time after final discharge or the last official action in the case (if no adjudication), subject to any applicable hearing provisions in (e). 30 VICTIMS OR POSSIBLE VICTIMS OF HUMAN TRAFFICKING Court may order sealing for a child taken into custody or adjudicated for CINS conduct or delinquent conduct if the child successfully completed a trafficked persons program under Human Resources Code The sealing can be ordered with or without a hearing. The prosecutor may maintain a separate record of child s name, birth date, and date of program completion until child turns 18, at which time it must be added to the child s other sealed records. 31 Records may not be sealed if: EXCEPTIONS 1. The person was given a determinate sentence 32 ; or 2. It is a record created or maintained pursuant to sex offender registration laws and the person still has an obligation to register. 33 REOPENING SEALED RECORDS 1. By court order, the subject of the records may be permitted to inspect sealed records Prosecuting attorney may petition to have records of a felony adjudication reopened for purposes of Penal Code 12.42(a)-(c) and (e), related to penalties for repeat and habitual felony offenders On the request of DPS, the court must reopen and allow DPS to inspect the files and records related to an applicant for a license to carry a concealed handgun. 36 JUVENILE JUSTICE INFORMATION SYSTEM The Juvenile Justice Information System (JJIS) is a computerized database maintained by DPS that serves as the record creation point for juvenile justice information maintained by the state and for the entry of records into the FBI database. Information in JJIS is subject to sealing and, unlike adult records, is not public. It may be accessed only by criminal justice agencies and other agencies identified by statute. 29 Texas Family Code (c-5) and (c-6) 30 Texas Family Code (d) 31 Texas Family Code (c-7) and (c-8) 32 Texas Family Code (b) 33 Texas Family Code (n) 34 Texas Family Code (h) 35 Texas Family Code (k) 36 Texas Family Code (m) 8

9 JJIS includes only information relating to delinquent conduct that would be a criminal offense (class B misdemeanor or higher) if committed by an adult. The juvenile board, juvenile justice agency, and clerk of the juvenile court are responsible for providing the necessary information to DPS. 37 CONFIDENTIALITY The information in JJIS is confidential and for the use of DPS. DPS may share the information only with 38 : 1. The military, with permission of the juvenile offender; 2. A person or entity listed in Government Code ; 3. A juvenile justice agency; 4. TJJD for analytical purposes; 5. The TJJD Office of Independent Ombudsman; 6. A county, justice, or municipal court exercising jurisdiction over a juvenile for truancy. 39 Information shared retains its confidential nature and can be shared by the recipient only if allowed by Title 3, Family Code. The information that DPS may share is only the information in JJIS; DPS is not authorized to share the underlying document that contained the information. JJIS contains the following information: INFORMATION IN JJIS 1. Juvenile s name and aliases; date and place of birth; physical description; 2. State ID number and other identifying info; fingerprints; last known residential address; 3. Agency that took into custody or detained juvenile; dates of detention or custody 4. Conduct for which taken into custody, detained, or referred (level and degree of offense) 5. Juvenile intake agency/probation office disposition and date; Prosecutor disposition and date 6. Disposition and date by court; Appellate proceedings 7. Commitment to or parole by TJJD and date. 40 DESTRUCTION OF RECORDS NO REFERRAL If a child is not referred to juvenile court on or before the 10 th day after being taken into custody, the law enforcement agency must destroy all information, including photographs and fingerprints, relating to the child. Destruction is not required if the child is placed in a first offender program under Family Code or on informal disposition under Family Code until after the child completes the 37 Texas Family Code and This sharing is only permitted for records not sealed or under restricted access. 39 Texas Family Code Texas Family Code

10 informal disposition or until the 90 th day after the child successfully completes the first offender program. 41 NO PROBABLE CAUSE The court must order the destruction of records, including records in JJIS, if: 1. At intake, a determination is made that no probable cause exists and the case is not forwarded to a prosecutor; or 2. The prosecutor determines no probable cause exists. 42 SEALED RECORDS On the motion of the child or on the court s own motion, the court may order the destruction of records that have been sealed if they do not relate to an adjudication of a felony or a class A or B misdemeanor, the person is at least 21, and the person has not been convicted of a felony. 43 SPRING CLEANING Physical records and files, including entries in a computer file or information on microfilm, microfiche, or other electronic storage media, may be destroyed if certain criteria are met. This destruction method is an option for records custodians; it is not a sealing provision and there is no authority for a juvenile to request it. Family Code (b) authorizes the custodian of physical records and files in a juvenile case to destroy hard-copy, original paper records and files at any time if the custodian electronically duplicates and stores the information in the records and files. 44 Family Code (c) authorizes a juvenile board, law enforcement agency, or prosecuting attorney (no other persons or entities are covered) to permanently destroy all paper-based and electronic records and files of closed juvenile cases subject to the restrictions of subsections (d) and (e). 45 This type of destruction does not result in the removal of the records from JJIS. It is important to note that while Court records can be converted from paper to electronic, they can never be completely destroyed. If the record or file contains information regarding more than one juvenile case, the information may only be destroyed if it can be separated from information not authorized to be destroyed. 46 JUVENILE PROBATION DEPARTMENT RECORDS If ordered by the juvenile board, 47 physical records may be destroyed as follows: 41 Texas Family Code (c); Law enforcement may maintain information after the 90 th day but only to determine eligibility to participate in a first offender program. 42 Texas Family Code Texas Family Code (l) 44 Texas Attorney General Opinion GA-1017, 2013 WL , August 13, Id. 46 Texas Family Code (e) 10

11 1. Most serious alleged or adjudicated conduct is CINS and the person is at least 18; No action was taken because the referral did not relate to CINS or delinquent conduct and the person is at least 18; Most serious conduct adjudicated was a misdemeanor and the person is at least 21; Misdemeanor or felony conduct was alleged but there was no adjudication and the person is at least 21; There was a felony adjudication and the person is at least LAW ENFORCEMENT AGENCY RECORDS Physical records of a law enforcement agency may be destroyed under same rules as Juvenile Probation Department records. Destruction is allowed only if ordered by the head of the agency. 53 PROSECUTING ATTORNEY S OFFICE RECORDS Physical records of the prosecuting attorney s office may be destroyed under the same rules as Juvenile Probation Department records. Destruction is allowed only if ordered by the prosecuting attorney. 54 HARD COPIES MAY BE ELECTRONICALLY DUPLICATED AND DESTROYED In addition to the above, for those seeking to convert to paperless systems or to save storage space, physical records and files may also be destroyed after they have been duplicated in a computer file, on microfilm or microfiche, or in any other electronic storage medium. 55 Please note, however, that such duplicated records, once created, may not be destroyed except as provided by Family Code (c), (d), and (e). RESTRICTED ACCESS 56 Certain records are subject to having access to them automatically restricted by law. This means the records can be accessed by even fewer entities than could access them when simply confidential. Records with restricted access are not sealed. Therefore, they remain in place. ELIGIBILITY AND PROCESS 1. DPS is responsible for certifying to the juvenile probation department that records are restricted Automatic restriction of access(subject to #5, below) occurs when: 47 Texas Family Code (c)(1) 48 Texas Family Code (d)(1)(A), and (B) 49 Texas Family Code (d)(1)(C) 50 Texas Family Code (d)(2)(A) 51 Texas Family Code (d)(2)(B) 52 Texas Family Code (d)(3) 53 Texas Family Code (c)(2) 54 Texas Family Code (c)(3) 55 Texas Family Code (b); Texas Attorney General Opinion GA-1017, 2013 WL , August 13, Texas Family Code Texas Family Code

12 a. the child is 17 years old 58 ; b. it was not a determinate sentence case; and c. the case was not certified for adult prosecution. 3. When the juvenile probation department gets the notice from DPS that the records have been restricted, the juvenile court is required to order that the following records are restricted: a. if child committed to TJJD, records maintained by TJJD; b. records maintained by juvenile probation department; c. records maintained by the clerk of the court; d. records maintained by the prosecutor s office; and e. records maintained by a law enforcement agency The court must also order the probation department to make a reasonable effort to notify the child about the restriction if the child requested notification and provided an address If the child is still under the jurisdiction of the juvenile court or TJJD at the time the probation department receives the notice from DPS, the records are not treated as restricted by the entities in #3 above. 61 Once the child is discharged, the records are restricted. ACCESS GENERALLY Once records are restricted, the records and any information from them may not be disclosed to: 1. a law enforcement agency; 2. a criminal or juvenile justice agency; 3. a governmental or other agency given access to information under Government Code Chapter 411; or 4. anyone else. The proper answer to a request for such records is, No records exist. 62 Restricted Access does not apply to: INAPPLICABILITY 1. Sex offender registration records maintained by DPS or local law enforcement agency; or 2. Records relating to criminal combination or street gang maintained by DPS or local law enforcement agency This is a 2011 legislative change; previously it was 21 years of age. 59 Texas Family Code Texas Family Code and Texas Family Code (c), as added by HB 2862 (83 rd Legislature, 2013) 62 Texas Family Code (a) 63 Texas Family Code

13 WHEN RELEASE IS PERMITTED DPS and entities receiving the court orders may give access to the information in JJIS (not the underlying documents) to the following 64 : 1. A criminal justice agency for a criminal justice purpose. a. Criminal Justice Agency: a federal or state agency that is engaged in the administration of criminal justice under a statute or executive order and that allocates a substantial portion of its annual budget to the administration of criminal justice. 65 b. Criminal Justice Purpose: an activity included in the administration of criminal justice or the screening of applicants for employment with a criminal justice agency 66. c. Administration of Criminal Justice: detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of an offender. Includes criminal identification activities and the collection, storage, and dissemination of criminal history record information For research purposes, to TJJD or the Criminal Justice Policy Council To the person who is the subject of the records, with permission of the juvenile court To any person, at the request of the person who is the subject of the records, with permission of the juvenile court To a party to a civil suit in which the juvenile has put facts relating to the juvenile s record at issue, with permission of the juvenile court 71. RELEASE TO THE MILITARY 1. DPS may release JJIS info to the military with the permission of a juvenile who is applying for enlistment 72. This is the same as for non-restricted records under Family Code (a)(1). 2. Probation department, court, or prosecutor may release records (actual documents, not just JJIS summary info) to the military with the juvenile s written permission in the same manner as those entities can release non-restricted records, which is: a. With leave of court; or b. Pursuant to Juvenile Board guidelines. 73 IMPACT ON THE PERSON WHO IS THE SUBJECT OF THE RECORDS Once records are restricted, the person is not required to say he or she has been a respondent in a juvenile case in any: a. Proceeding; Texas Family Code (b); If release is allowed, it is only the information contained in JJIS that may be released, not the underlying documents. 65 Government Code Id. 67 Code of Criminal Procedure Article Texas Family Code (b)(2) 69 Texas Family Code (b)(3) 70 Texas Family Code (b)(4) 71 Texas Family Code (b)(5) 72 Texas Family Code (b)(3) 73 Texas Family Code (c) 74 Texas Family Code

14 b. application for employment; c. application for licensing; or d. application for other public or private benefit. 2. The person may not be punished, by perjury prosecution or otherwise, for denying: a. the existence of the records or b. the person s participation in a juvenile proceeding related to the records. 3. The person may not waive the restricted status of the records and may not authorize their release. 76 RESCINDING RESTRICTED ACCESS Records lose their restricted status if the person is convicted of or placed on deferred adjudication for a Class B misdemeanor or higher after turning 17. DPS must notify the juvenile probation department that the records are no longer restricted. The juvenile probation department must then notify the entities that received the court order at the time of restriction Except in a criminal proceeding as the defendant, if otherwise required by law 76 Texas Family Code Texas Family Code