By Kathleen Takamine
Assistant Criminal District Attorney in Bexar County
If you’re prosecuting in the juvenile system long enough, you will run across applications to seal juvenile records. It is another advantage that the Texas Family Code gives to juvenile offenders. On the whole, juvenile records are kept strictly confidential. The code limits access to such records, with the public having no right to them. Sealing is basically an additional benefit. While juvenile records have always been protected, sealing records heightens those protections.
This all goes back to the general purpose of the juvenile justice system, which is to ensure the safety of the public while still providing treatment and rehabilitation for juveniles.[1] Our duty as prosecutors is to ensure this balance by weighing the safety of the public with appropriate consideration for the juvenile.
What are “juvenile records”
Family Code §58.251 defines record as “any documentation related to a juvenile matter, including information contained in that documentation.”[2] It also defines juvenile matter as “a referral to a juvenile court or juvenile probation department and all related court proceedings and outcomes, if any.”[3] This section includes electronic and physical records.[4] There are records that are exempt from this section, such as Texas Juvenile Justice Department (TJJD) records collected or maintained for statistical or research purposes, Department of Public Safety (DPS) or local law enforcement records relating to a criminal combination or criminal street gangs under Chapter 67, and DPS records on sex offender registration under Code of Criminal Procedure Chapter 62.[5]
The bottom line is that records subject to sealing include all files of the juvenile courts; juvenile probation department; prosecutor’s office; law enforcement agencies; TJJD; and any private or public agency that had custody of, provided supervision to, or provided services to the juvenile.[6] That is a lot of records from a lot of agencies across the board. When an application comes across your desk and is set for a hearing, it pays to read it carefully and know what laws apply and find out if there have been any changes in the law since the last time you read up on them.
Sealing vs. expunction
I’ve had attorneys bring up expunctions in juvenile court. Sealing a record under Chapter 58 of the Family Code and expunging a record under Chapter 55A of the Code of Criminal Procedure are not the same.
Texas Family Code §58.265 specifically states that any juvenile record to which the code applies can’t be expunged. Really, there is only one place where a juvenile’s records can be expunged and that is found in the Alcoholic Beverage Code.[7] A “minor” under the Alcoholic Beverage Code is anyone under 21, which includes persons defined as a child under the Family Code.[8] However, these offenses as applied to juveniles are Class C misdemeanors and are outside the jurisdiction of juvenile courts.[9] These are not considered “juvenile matters” as defined by the Family Code[10] and therefore do not fall under §58.265.
Another difference is that when you expunge a record, you are erasing all records on one specific case. When a juvenile court seals a juvenile record under the Family Code, in most cases, the youth’s entire juvenile criminal history will be sealed.[11] The only situation where the sealing affects only one case is where the juvenile court enters a finding of “not true” (juvenile-speak for “not guilty”). In this situation, the court will automatically order the sealing of the records on that specific case,[12] and it will not include any other cases.
Finally, in expunctions, all records related to that one case are basically destroyed. The Code of Criminal Procedure prohibits “the release, maintenance, dissemination, or use of the expunged records and files for any purpose.”[13] A sealed juvenile record is not destroyed. Sealed records can still be accessed by petitioning the juvenile court for access by only a few parties.[14] Keep in mind that the decision to release sealed juvenile records will rest on the juvenile court that signed the order. I will touch upon the effects of record sealing later.
Records ineligible for sealing
Before I discuss how to seal juvenile records, note that some records are absolutely not eligible to be sealed. These are found in Family Code §58.256(d) and include the following:
1) if a person was adjudicated and received a determinate sentence,
2) a person who is currently required to register as a sex offender, and
3) a juvenile who was sentenced to TJJD and has not yet been discharged.
If any of these situations is present, the juvenile court cannot order the sealing of the record. In regard to sex offender registration and commitment to TJJD, once the person is no longer required to register or has been released from all TJJD supervision (including parole), the person can apply to have the juvenile records sealed.[15]
Two ways of sealing records without application
In some circumstances, juveniles can have their records sealed without an application. These will obviously not cross a prosecutor’s desk. Juveniles in these situations do not have to apply to the juvenile courts to have their records sealed. Instead, government entities will initiate the process once they determine that certain criteria have been met.[16] Or, if the juvenile court finds that the delinquent conduct allegations are “not true” (“not guilty”), the court shall order the sealing of the records under §58.2551.
For no-application sealings, there are two different criteria: one for delinquent-conduct cases[17] and one for Conduct Indicating a Need for Supervision (CINS)[18] cases.
For delinquent cases,[19] the criteria include that the juvenile:
• be at least 19 years old,
• has no felony adjudications (misdemeanor adjudications are fine),
• has no pending juvenile delinquent charges or adult felony or jailable misdemeanor charges,
• has not ever been certified as an adult in a juvenile case, and
• has no adult felony or jailable misdemeanor convictions.
For CINS cases,[20] the criteria include:
• records relating to CINS conduct must have been filed with the juvenile court clerk,
• the juvenile is at least 18 years old,
• the case has not been referred to the juvenile probation office,
• the juvenile has no adult felony convictions, and
• the juvenile has no pending adult felony or jailable misdemeanor charges.
In cases involving delinquent-conduct char-ges, DPS initiates the no-application sealings because it is in the best position to find out whether a juvenile has meet the criteria for sealing. DPS maintains the Juvenile Justice Information System (JJIS) and has access to this information.[21] Once DPS determines that a juvenile is eligible for record sealing, authorities there contact the juvenile probation department that submitted the records.[22] The juvenile probation department verifies that the juvenile is eligible, notifies the juvenile court within 60 days of receiving the information from DPS, and turns over a list of all the referrals related to the juvenile.[23] The juvenile court will then seal the record within 60 days of receiving the information from the probation department.[24] If the juvenile probation department finds that the juvenile is not eligible, it must notify DPS within 15 days of receiving the information.[25]
CINS cases are not reported to JJIS, so it is up to the local probation department to monitor and report a juvenile’s eligibility.[26] For these types of cases, the juvenile probation department notifies the juvenile court and turns over the entire list of referrals.[27] The juvenile court has 60 days to seal the record.[28] This is not discretionary. The Family Code is clear that the probation department shall notify the juvenile court once the criteria is met.
This was mentioned earlier, but one other way to have a record sealed without an application is if a juvenile court enters a “not true” finding on a juvenile. This is automatic on the court’s part and is done without a hearing.
Two ways of sealing records with application
These are the cases where the prosecutor’s office will be able to argue its point of view. Juveniles who have been adjudicated in a felony case or have not met the criteria for sealing without application have to apply for sealing.[29] There are requirements that must be met before the court can grant a sealing with application, and the court has full discretion in granting or denying an application for sealing.[30]
Every application is required to have:[31]
• the person’s full name, gender, race or ethnicity, date of birth, driver’s license or identification number, and Social Security number;
• the conduct or offense that was referred to the juvenile probation department, including the date of the offense; and
• a list of all the entities that the juvenile believes have possession of records on him or her.
If any of this information is not included, there should be an explanation of why it’s missing.[32] If the information is missing and no reason is given, it does not necessarily mean that the application will be denied. In my experience, these cases are set for a hearing and the information or reason is given at the hearing.
A prosecutor can also agree to the sealing, thus negating any need for a hearing. Whether I agree depends on the person’s record. Once I receive the application (it has to be served on the State from the court), it is imperative to have the person’s criminal background checked. For example, if the juvenile had a misdemeanor evading detention case and no other criminal history, it likely doesn’t serve anyone to fight that application. It gets more complicated in cases with serious charges, when a prosecutor should proceed to a hearing before the juvenile court.
Once an application is filed, the juvenile court can either sign the application without a hearing, as long as the required information listed above is included, or set the matter for a hearing.[33] If the court sets it for a hearing, it must be set within 60 days of the application being filed.[34]
What is the basic criteria for sealing a record? At the least, the person applying for the sealing must show:
• s/he is at least 17 years old; if under 17, s/he must show that one year has passed after the “final discharge” of the juvenile case;[35]
• s/he does not have a current pending juvenile referral with any juvenile probation department or juvenile court (this is where criminal background checks come into play);[36]
• s/he had not been certified as an adult in their juvenile case;[37]
• s/he does not have an adult felony conviction;[38] and
• s/he does not have any pending adult felony or jailable misdemeanor cases.[39]
This is the bare minimum of what must be proven.
At the hearing, prosecutors have an opportunity to oppose the application. The Family Code gives the court discretion to grant or deny the application, but the court cannot deny it without a hearing.[40] The hearing may simply be the prosecutor arguing the case, or the prosecutor may bring in witnesses, such as the victims, victims’ families, or the juvenile probation officer.
After the hearing, the court will make its ruling. If the court denies the application, the matter is done. There’s nothing specific in the Family Code that prohibits the person from submitting another application sometime later, but I personally have not seen it done.
If the court grants the application, then the sealing process begins.
Orders to seal records
This section applies to both sealing with application and sealing without application scenarios.
Once the order is signed, all adjudications relating to the person are vacated and the proceedings are dismissed and treated as though they had never occurred.[41] People whose juvenile records are sealed could honestly say that they had never had any cases in the juvenile system.[42]
The court has 60 days to send out the order to the court clerk, the prosecutor’s office, law enforcement agencies, DPS, TJJD (if the person had been sentenced to TJJD), the juvenile probation office, and all entities listed in the order.[43] The Family Code clearly outlines the actions required of the agencies receiving the court order, and these are all mandatory actions—no discretion is allowed. If any of these entities do not have any records on the person, they must send written verification of that fact to the juvenile court.[44] If the entity receives the order but can’t verify the person due to lack of identifying information in the order, the entity has 30 days to inform the juvenile court of the matter.[45] The court will then have to procure the missing information and send it to the inquiring entity.[46]
If each of these agencies receive any inquiries about the person who is the subject of the sealing order, they must report that records do not exist on that person.[47]
Department of Public Safety. Under the Family Code, DPS is required to limit access to JJIS records to only TJJD for purposes of conducting research and statistical studies and destroy any other records relating to the person in the order.[48] This includes all DNA records.[49] Once this is done, DPS must send written verification of its required actions to the juvenile court.[50]
Texas Juvenile Justice Department. TJJD is required to seal all records pertaining to the person subject to the order with the exception of records kept for the purpose of research and statistical studies.[51] The Department must also send written verification of its actions to the juvenile court.[52]
Public or private agencies and institutions. These include agencies or institutions that had custody of or provided supervision or services to the person who is subject of the order.[53] This would be juvenile detention centers, secured placement centers, residential treatment centers, and the like. They are required to seal all records concerning the person subject to the order and send written verification of the sealing to the juvenile court.[54]
Others. This is the catch-all category in which they must send all records to the juvenile court, delete anything that references the person’s record, and send written verification of the reference deletion to the juvenile court.[55] In 2017, the process was changed in that prosecutor offices, juvenile probation offices, and various other agencies did not have to send the records to the juvenile courts. Instead, they were allowed to seal their records in place.
Remember that the best way to get the most up-to-date information on sealing records or other juvenile topics is to rely heavily on the actual statute. Bottom line: Always familiarize yourself with the law in any matter dealing with defense motions. Do not get stuck with outdated information.
Conclusion
This is my penultimate article in a series on juvenile matters. I have been in the juvenile system for so long, it’s good to be reminded of how the juvenile process works and why such processes are in place. My next article will be on juvenile specialty courts in Bexar County. I look forward to sharing this information and hope that it gives other jurisdictions ideas to help balance the goals of protecting the public while rehabilitating juveniles.
[1] Tex. Family Code §51.01.
[2] Tex. Family Code §58.251(4).
[3] Tex. Family Code §58.251(2).
[4] Tex. Family Code §58.251(1) & (3).
[5] Tex. Family Code §58.252.
[6] Tex. Family Code §58.259.
[7] Tex. Alcoholic Beverage Code §106.12.
[8] See Tex. Family Code §51.02(2).
[9] See Tex. Family Code §51.03 and §51.04.
[10] Tex. Family Code §58.251.
[11] See Tex. Family Code §58.258.
[12] Tex. Family Code §58.2551.
[13] Tex. Code Crim. Proc. Art. 55a.401(1).
[14] Tex. Family Code §58.260. “(a) A juvenile court may allow, by order, the inspection of records sealed under this subchapter or under §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 §12.42, Penal Code; or (3) a court, the Texas Department of Criminal Justice, or the Texas Juvenile Justice Department for the purposes of Art. 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.”
[15] Robert O. Dawson, Texas Juvenile Law, p 399 (Texas Juvenile Probation Commission 9th ed. 2008).
[16] Tex. Family Code §§58.253 and 58.255. See also Dawson, Texas Juvenile Law, p 396.
[17] See Texas Family Code §51.03 for the definition of delinquent conduct.
[18] See Texas Family Code §51.03. Basically, conduct of juveniles who commit fine-only offenses.
[19] Tex. Family Code §58.253.
[20] Tex. Family Code §58.255.
[21] Tex. Family Code §58.254. See also Dawson, Texas Juvenile Law, p. 396. JJIS is covered under Tex. Family Code, Chapter 58, Subchapter B, and is basically a computerized database of all information involving the juvenile justice system.
[22] Tex. Family Code §58.254(a); see also Dawson, Texas Juvenile Law, p. 396.
[23] Tex. Family Code §58.254(c); see also Dawson, Texas Juvenile Law, p. 396.
[24] Tex. Family Code §58.254(f).
[25] Tex. Family Code §58.254(e).
[26] Dawson, Texas Juvenile Law, p. 397.
[27] Tex. Family Code §58.255(b).
[28] Tex. Family Code §58.255(c).
[29] Tex. Family Code §58.256. See also Dawson, Texas Juvenile Law, p. 397.
[30] Tex. Family Code §58.256(e).
[31] Tex. Family Code §58.256(b).
[32] Id.
[33] Tex. Family Code §58.256(e).
[34] Tex. Family Code §58.257.
[35] Tex. Family Code §58.256(c)(1).
[36] Tex. Family Code §58.256(c)(2).
[37] Tex. Family Code §58.256(c)(3).
[38] Tex. Family Code §58.256(c)(4).
[39] Tex. Family Code §58.256(c)(5).
[40] Dawson, Texas Juvenile Law, p. 397.
[41] Tex. Family Code §58.258(c).
[42] See Tex. Family Code §58.261.
[43] Tex. Family Code §58.257(b).
[44] Tex. Family Code §58.259(e).
[45] Tex. Family Code §58.259(d).
[46] Id.
[47] Tex. Family Code §58.259(c).
[48] Tex. Family Code §58.259(a)(1)(A) & (B).
[49] Tex. Family Code §58.259(a)(1)(B).
[50] Tex. Family Code §58.259(a)(1)(C).
[51] Tex. Family Code §58.259(a)(2)(A).
[52] Tex. Family Code §58.259(a)(2)(B).
[53] Tex. Family Code §58.259(a)(3).
[54] Tex. Family Code §58.259(a)(3)(A) & (B).
[55] Tex. Family Code §58.259(a)(4).