Presentation Outline: Juvenile Records

Presentation Outline: Juvenile Records Catherine Klier

Administration Manager, City of Houston Municipal Courts Department

Course Objectives

By the end of this session, participants will be able to:

1. Distinguish between confidential and public records;

2. Compare the changes made by the 83rd Legislature regarding confidentiality of juvenile records;

3. Summarize additional aspects of juvenile record confidentiality, including expunction, dissemination authority, and

information sharing between governmental entities; and

4. List six persons/entities that have access to confidential juvenile records.

I. Confidential and Public Records

� Juvenile Confidentiality- 2009-2011

� Public Records

o Texas Public Information Act

� Chapter 552, Government Code

o Texas Rules of Judicial Administration

� Rule 12

� Confidential Records

o Chapter 58, Texas Family Code

o Recent additions- Articles 44.2811 & 45.0217, Texas Code of Criminal Procedure

� Types of Records- Municipal/Justice/Juvenile Courts

o Criminal records- Municipal/Justice Courts

o Juvenile record- Juvenile Court

o Record formats

II. Legislative Changes (Courtesy of the 83rd

Legislature)

� SB 393- Expanded “conditional” confidentiality

o Effective September 1st

o Offers confidentiality for juvenile defendants who satisfy the components of deferred disposition.

� HB 528- Absolute confidentiality

o Effective January 1st

o Records in municipal/justice courts are confidential from the time of charging.

� SB 393 v. HB 528- Issues facing Municipal/Justice Courts

� Request for Opinion- Texas Office of the Attorney General

III. Expunction, Dissemination Authority, and Interagency Sharing of Records

� Expunction- Open court notification of right to expunge records required.

o Code of Criminal Procedure- Art. 45.055

� Pertains to Failure to Attend School

o Code of Criminal Procedure- Art. 45.0216

� Penal Code Offenses- §8.07(a)(4) or (5)

� Dissemination Authority- criminal record history

o Chapter 411- Government Code

� Interagency Sharing of Records

o §58.0051, Family Code- Interagency sharing of educational records

o §58.0052, Family Code- Interagency sharing of non-educational records

IV. Entities with Access to Confidential Juvenile Records

� Article 45.0217(b), Code of Criminal Procedure

Juvenile Records: Defining a New Path for Criminal Courts

2

3

4

Distinguish between confidential and public records;1

Compare the changes made by the 83rd Legislature regarding the confidentiality of records;

List six persons/entities that have access to confidential records of juvenile defendants.

Summarize additional aspects of record confidentiality for juveniles and;

AGENDA

Juvenile Confidentiality ContinuumFine‐Only Misdemeanors

No confidentiality‐records public

SB 393/HB 528‐“Expanded

Conditional” v. “Absolute”

Confidentiality

SB 1056‐ Orders of Non‐Disclosure

HB 961‐“Conditional” Confidentiality

Statutes which govern access:

Texas Public Information Act

Chapter 552, Texas Government Code

Texas Rules of Judicial Administration

Rule 12, Public Access to Judicial Records

Common Law

Texas Family Code

Texas Code of Criminal Procedure

Access to Court Information

Case Records

Usually governed by common law;

The record has been generated as a result of connectionto a case that has been before a court;

Judicial Records‐ Rule 12.2(d)

Record “made or maintained” by a court/judicial entity inits “regular course of business”;

Does not pertain to the court’s “adjudicative function”;

Has not been generated in connection with any case thathas been before a court.

Case v. Judicial Records

Governs Case Records not controlled by othercommon law.

§552.003‐ Definitions of “governmental body”

§552.003(1)(B)‐ “does not include thejudiciary”

§552.101‐ Confidential Information

Information is exempted if it is “confidentialby law, constitutional, statutory, or by judicialdecision.”

Texas Public Information Act (PIA)

Judicial Records access is controlled by Rule 12.

Rule 12.3‐ Applicability

12.3(a)(4)‐ does not apply to Chapter 522,Government Code

Rule 12.4‐ Access to Judicial Records

Other than records covered by 12.3 or 12.5, recordsare open to the general public.

Rule 12.5‐ Exemptions from Disclosure‐ there are 7which apply in justice/municipal courts.

12.5(a)‐ work product and drafts

12.5(i)‐ information confidential under other law

Texas Rules of Judicial Administration

Juveniles have certain protections in place which override thePIA and the Texas Rules of Judicial Administration.

§58.00711, Texas Family Code:

Added 2011‐ 82nd Legislature

Exception: Art. 45.0217(b), CCP Art. 44.2811, Code of Criminal Procedure: Added 2011‐ 82nd Legislature Exception: Art. 45.0217(b), CCP

Art. 45.0217, Code of Criminal Procedure: Added 2011‐ 82nd Legislature Article also includes law enforcement records. Exceptions: Art. 15.27, 45.0217(b)

Juvenile Confidentiality

• Municipal/Justice Courts‐Criminal Records

Not all records concerning juveniles are “juvenilerecords”:

Types of Records

• Juvenile Courts‐ Juvenile Records

83rd Legislative Session

Amends §44.2811 and §45.0217 CCP

“Expanded” Conditionalconfidentiality of juvenile records.

Expands juvenile confidentiality to include cases dismissed after successful completion of deferred disposition.

Effective September 1, 2013.

SB 393

Amends §44.281, §45.0217 CCP, §58.00711 FC

Absolute confidentiality of juvenile records (non‐traffic, class C misdemeanors).

All records are confidential from the charging of the juvenile, regardless of satisfaction of the conditions of judgment.

Effective January 1, 2014.

HB 528

SB 393 v. HB 528

The Office of Court Administration submitted an RQ with the Attorney General’s Office to determine if SB 393 and HB 528 can be reconciled.

RQ‐1136‐GA‐ Decision made: January 2, 2014!

Four questionswere asked by the OCA.

GA‐1035‐ decision from AG’s Office.

AG’s goals:

“Ascertain and give effect to the Legislature’s intent.”

Create harmonization between statutes, if possible.

AG Opinion

Question 1: Does HB 528 irreconcilably conflict with SB 393/SB 394?

Answer: Irreconcilable conflicts arise when it is “impossible to comply with both provisions at the same time.”

It was found that a court can comply with “simultaneously” with the amendments of the Senate Bills and House Bill, as it relates to Art. 44.2811, 45.0217, CCP and Sec. 58.00711 FC, so there is no irreconcilable conflict.

AG Opinion SB 393/HB 528 ‐ Dissected

Question 2: If there were an irreconcilable conflict, would SB 393 control over HB 528?

Answer: Since there is no irreconcilable conflict, the Attorney General’s office did not answer this question.

AG Opinion SB 393/HB 528‐ Dissected

Question 3: Assuming no irreconcilable conflict, with SB 393/394 in effect September 1, 2013 and HB 528 in effect January 1, 2014, will HB 528 “supplant the provisions” of SB 393/394?

Answer: No. Each statute is effective on January 1, 2014 since the statutes do not conflict.


Question 4a: Assuming no irreconcilable conflict, should proceedings involving children with non‐traffic, fine‐only cases be closed to the public?

Answer: No. The Senate Bills and House Bill do not require such action.

Art. 1.24, CCP‐ “[t]he proceedings and trials in all courts shall be public.”

Art. 45.041(d), CCP‐ “All judgments, sentences and final orders of the…judge shall be rendered in open court.”


Question 4b: Assuming no irreconcilable conflict, can court dockets be publicly disclosed?

Answer: Yes. “Schedule” dockets are considered an “administrative instrument” of the court and provide the public with knowledge of pending hearings and proceedings. These dockets are not considered a “record” or “file” subject to confidentiality.


Municipal and JP Courts are required to keep all criminal records, files, and information on juvenile non‐traffic, fine‐only cases confidential from the public from the time the juvenile is charged with the offense.

Dockets utilized for the purpose of scheduling are able to be posted in public view.

Proceedings on juvenile cases can be open to the public.

The AG’s opinion provides clarity on legislative intent. Courts must apply their own judgment and interpretation as to how the changes in law are to be applied.

Takeaways from the AG’s Opinion

3rd Parties and HB 528 It was not the intent of the legislature to affect the

Court’s normal business operations.

What about…

Collection companies

Community service agencies

Teen court agencies

Bondsmen

Simple solution: Institute a “release of information”

Expunction of certain conviction records:

Art. 45.0216(e) “The judge shall inform the person and any parent in

open court of the person’s expunction rights…”

Art. 45.0216(f) “The court shall order the conviction, together with

all complaints, verdicts, sentences, and prosecutorial and law enforcement records…expunged from the person’s record…”

Expunctions‐ Code of Criminal Procedure

Expunction of conviction and records in Failure to Attend School Cases:

Art. 45.055(c) “[T]he court shall order the conviction, together

with all complaints, verdicts, sentences, and other documents relating to the offense…to be expunged from the applicant’s record.”

Expunctions‐ Code of Criminal Procedure

Dissemination of criminal history record information:

§411.081, Government Code

This subchapter does not apply to criminal record history that is:

§411.081(a)(3)‐ public, judicial, administrative, or legislative proceedings;

411.081(a)(4)‐ court records of public judicial proceedings.

Dissemination Authority

Interagency sharing of educational records:

§58.0051, Family Code

§58.0051(2)(I)‐ “[A] court with jurisdiction over juveniles” is considered a “juvenile service provider” under this statute.

§58.0051(f)‐ juvenile service providers can share confidential educational information with other juvenile service providers.

§58.0051(g)‐ records provided to a juvenile service provider under this statute remain confidential.

Interagency Sharing of Records

Interagency sharing of non‐educational records:

§58.0052, Family Code

58.0052(a)(1)‐ “juvenile service provider” has the same meaning as 58.0051

§58.0052(e)‐ juvenile service providers can share confidential educational information with other juvenile service providers.

§58.0052(f)‐ records provided to a juvenile service provider under this statute remain confidential.

Interagency Sharing of Records

Entities With Access to Confidential Records

Open inspection of confidential records related to the conviction of a child:Art. 45.0217(b), Code of Criminal Procedure

Confidential juvenile court information may be open to inspection by:

Judges or court staff;

A criminal justice agency for a criminal justice purpose;

DPS;

Attorney for a party to the proceeding;

Child defendant; or

Defendant’s parent, guardian, managing conservator

Entities With Access to Confidential Records

Notification to schools required:Art. 15.27(b), Code of Criminal Procedure

Relates to providing notification to school campuses if a juvenile has been charged and adjudicated of an offense.

15.27(h)‐ applies to any felony offense and the following misdemeanors:

Offense under §20.02, 21.08, 22.01, 22.05, 22.07, 71.02, Penal Code;

Unlawful use, sale, possession of controlled substance, drug paraphernalia, marijuana;

Unlawful possession of weapons/devices listed in §46.01(1)‐(14), 46.05, Penal Code

Questions?(and hopefully answers)

??

Thank you!

For more information:Catherine A. Klier

Administration ManagerCity of Houston Municipal Courts

(713) 247‐4426 (office)[email protected]

JUVENILE CONFIDENTIALITYJUVENILE CONFIDENTIALITY

-- SB 393 v. HB 528SB 393 v. HB 528

�� SB 393SB 393

� Amends §44.2811 and §45.0217 CCP

�� ““ExpandedExpanded”” ConditionalConditional

confidentiality of juvenile records.

� Expands juvenile confidentiality to include cases dismissed after

successfulsuccessful completion of deferred disposition.

� Effective September 1, 2013September 1, 2013.

�� HB 528HB 528

� Amends §44.281, §45.0217 CCP, §58.00711 FC

�� AbsoluteAbsolute confidentiality of juvenile records (non-traffic, class C misdemeanors).

�� AllAll records are confidential from the charging of the juvenile, regardless of satisfaction of the conditions of judgment.

� Effective January 1, 2014January 1, 2014.


-- Issues Facing Municipal CourtsIssues Facing Municipal Courts

�� SB 393SB 393

� Cases that are dismissed are not confidential if the case was never adjudicated.

� Records are not confidential at the time of the charge, or while the case is in a pending/open status or delinquent.

�� HB 528HB 528

� Problematic for required posting of dockets.

� Can these cases be heard in open court due to the confidentiality requirements?

� Juvenile defendants are entitled to confidentiality of records regardless of if the conditions of adjudication have been met.


-- AG Opinion/Records AccessAG Opinion/Records Access

� The Office of Court Administration submitted an RQ with the Attorney General’s Office to determine if SB 393 and HB 528 can be reconciled.� RQ-1136-GA

� Your opinion: are SB 393 and HB 528 reconcilable?

� There was no changeno change in who has access to confidential juvenile records:� Judges and court staff

� Criminal Justice Agencies for criminal justice purposes

� DPS

� Juvenile defendant’s attorney

� Child defendant

� Child defendant’s parent/guardian/managing conservator

SB 393- Juvenile Records

Art. 44.2811. RECORDS RELATING TO CHILDREN CONVICTED OF OR RECEIVING DEFERRED

DISPOSITION FOR FINE-ONLY MISDEMEANORS. (a) This article applies only to a misdemeanor offense

punishable by fine only, other than a traffic offense.

(b) All records and files and information stored by electronic means or otherwise, from which a

record or file could be generated, relating to a child who is convicted of and has satisfied the judgment

for or who has received a dismissal after deferral of disposition for an [a fine-only misdemeanor]

offense described by Subsection (a) [other than a traffic offense] are confidential and may not be

disclosed to the public except as provided under Article 45.0217(b). [All records and files and

information stored by electronic means or otherwise, from which a record or file could be generated,

relating to a child whose conviction for a fine-only misdemeanor other than a traffic offense is affirmed

are confidential upon satisfaction of the judgment and may not be disclosed to the public except as

provided under Article 45.0217(b).]

SECTION 4. Article 45.0217, Code of Criminal Procedure, is amended to read as follows:

Art. 45.0217. CONFIDENTIAL RECORDS RELATED TO THE CONVICTION OF OR DEFERRAL OF

DISPOSITION FOR A CHILD. (a) This article applies only to a misdemeanor offense punishable by fine

only, other than a traffic offense.

(a-1) Except as provided by Article 15.27 and Subsection (b), all records and files, including

those held by law enforcement, and information stored by electronic means or otherwise, from which

a record or file could be generated, relating to a child who is convicted of and has satisfied the

judgment for or who has received a dismissal after deferral of disposition for an [a fine-only

misdemeanor] offense described by Subsection (a) [other than a traffic offense] are confidential and

may not be disclosed to the public.

(b) Information subject to Subsection (a-1) [(a)] may be open to inspection only by:

(1) judges or court staff;

(2) a criminal justice agency for a criminal justice purpose, as those terms are defined

by Section 411.082, Government Code;

(3) the Department of Public Safety;

(4) an attorney for a party to the proceeding;

(5) the child defendant; or

(6) the defendant's parent, guardian, or managing conservator.

HB 528- Juvenile Records

SECTION 1. Article 44.2811, Code of Criminal Procedure, is amended to read as follows:

Art. 44.2811. RECORDS RELATING TO CERTAIN [CHILDREN CONVICTED OF] FINE-ONLY

MISDEMEANORS COMMITTED BY A CHILD. [All records and files and information stored by electronic

means or otherwise, from which a record or file could be generated, relating to a child who is

convicted of and has satisfied the judgment for a fine-only misdemeanor offense other than a traffic

offense are confidential and may not be disclosed to the public except as provided under Article

45.0217(b).] All records and files and information stored by electronic means or otherwise, from which

a record or file could be generated, relating to a criminal case [child whose conviction] for a fine-only

misdemeanor, other than a traffic offense, that is committed by a child and that is appealed [affirmed]

are confidential [upon satisfaction of the judgment] and may not be disclosed to the public except as

provided under Article 45.0217(b).

SECTION 2. The heading to Article 45.0217, Code of Criminal Procedure, is amended to read as

follows:

Art. 45.0217. CONFIDENTIAL RECORDS RELATED TO CHARGES AGAINST OR THE CONVICTION

OF A CHILD.

SECTION 3. Article 45.0217(a), Code of Criminal Procedure, is amended to read as follows:

(a) Except as provided by Article 15.27 and Subsection (b), all records and files, including those

held by law enforcement, and information stored by electronic means or otherwise, from which a

record or file could be generated, relating to a child who is charged with, is convicted of, is found not

guilty of, had a charge dismissed for, or is granted deferred disposition [and has satisfied the judgment]

for a fine-only misdemeanor offense other than a traffic offense are confidential and may not be

disclosed to the public.

SECTION 4. Section 58.00711, Family Code, is amended to read as follows:

Sec. 58.00711. RECORDS RELATING TO CHILDREN CHARGED WITH OR CONVICTED OF FINE-

ONLY MISDEMEANORS. Except as provided by Article 45.0217(b), Code of Criminal Procedure, all

records and files and information stored by electronic means or otherwise, from which a record or file

could be generated, relating to a child who is charged with, is convicted of, is found not guilty of, had a

charge dismissed for, or is granted deferred disposition [and has satisfied the judgment] for a fine-only

misdemeanor offense other than a traffic offense are confidential and may not be disclosed to the

public.

SECTION 5. Articles 44.2811 and 45.0217, Code of Criminal Procedure, and Section 58.00711,

Family Code, as amended by this Act, apply to an offense committed before, on, or after the effective

date of this Act.

SECTION 6. This Act takes effect January 1, 2014.

0 ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

Mr. David Slayton Administrative Director Office of Court Administration Post Office Box 12066 Austin, Texas 78711-2066

Dear Mr. Slayton:

January 2, 2014

Opinion No. GA-1035

Re: Confidentiality of records in juvenile misdemeanor cases (RQ-1136-GA)

You ask four questions regarding recent amendments to articles 44.2811 and 45.0217 of the Code of Criminal Procedure and section 58.00711 of the Family Code (the "confidentiality statutes"). 1 You explain that the Eighty-third Legislature adopted three bills-Senate Bill 393, Senate Bill 394, and House Bill 528-tbat amended each of the confidentiality statutes. Request Letter at 1-2. Senate Bills 393 and 394 became effective on September 1, 2013? Your questions arise because when House Bill 528 becomes effective on January 1, 2014,3 there will be two versions of each of the confidentiality statutes, and you are unsure how to reconcile them.4 !d. at 2. Senate Bill 394 incorporates the pertinent amendments of Senate Bill 393, so we refer generally to the "Senate Bills" and the "House Bill."

You first ask whether the Senate Bills irreconcilably conflict with the House Bill. !d. Like the courts, our primary objective when construing statutes "is to ascertain and give effect to the Legislature's intent." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011 ). At the outset, we assume that the Legislature, in enacting a statute, intended for the entire

1Letter from Mr. David Slayton, Admin. Dir., Office of Ct. Admin., to Honorable Greg Abbott, Tex. Att'y Gen. at 2-3 (July 10, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").

2See Act of May 23, 2013, 83d Leg., R.S., ch. 1407, § 23, 2013 Tex. Sess. Law Serv. 3732, 3738 (Senate Bill393); Act of May 16,2013, 83d Leg., R.S., ch. 1319, § 5, 2013 Tex. Sess. Law Serv. 3501, 3502 (Senate Bill 394).

3 See Act of May 22, 2013, 83d Leg., R.S., ch. 1257, § 6, 2013 Tex. Sess. Law Serv. 3181, 3182 (House Bill 528).

4We received briefing concerning the effect of House Bill 528 on the constitutional openness of criminal courts. However, you did not raise that issue in your request, so we do not address it here.

Mr. David Slayton - Page 2 (GA-1035)

statute to be effective and intended a just and reasonable result that is feasible of execution. TEX. Gov'T CODE ANN. § 311.021 (West 2013). When "amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each." !d. § 311.025(b). The Senate Bills make no reference to the House Bill, and vice versa. Further, nothing in the language of the Senate Bills precludes the amendments contained in the House Bill, and none of the bills contain a saving provision that resolves potential conflicts with other laws. Thus, we look to the plain language of the confidentiality statutes as amended by the Senate Bills and the House Bill to determine whether they can be harmonized. To that end, this office has previously stated that an irreconcilable conflict exists when it is impossible to comply with both provisions at the same time. Tex. Att'y Gen. Op. No. GA-0369 (2005) at 4 (relying on State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)).

Article 44.2811 is located in chapter 44 of the Code of Criminal Procedure, which governs appeals and writs of error. See generally TEX. CODE CRIM. PROC. ANN. arts. 44.01-.47 (West 2006 & Supp. 2013). As amended by the Senate Bills, article 44.2811 provides that records relating to "a child who is convicted of and has satisfied the judgment for or who has received a dismissal after deferral of disposition for" a non-traffic, fine-only misdemeanor offense may not be disclosed to the public. !d. art. 44.2811 (West Supp. 2013). The House Bill amends article 44.2811 to prohibit the disclosure of records relating to a non-traffic, fine-only misdemeanor offense "that is committed by a child and that is appealed."5 Taken together, the Senate Bills and the House Bill establish three separate, independent conditions for confidentiality under article 44.2811. As a result, complying with the Senate Bills does not result in violating the House Bill, and vice versa. Therefore, with respect to article 44.2811, the amendments of the Senate Bills and the House Bill do not irreconcilably conflict.

Article 45.0217 of the Code of Criminal Procedure, applicable to justice and municipal courts, and section 58.00711 of the Family Code, applicable to juvenile justice courts, are virtually identical, so we discuss them together. The Senate Bills amend these statutes to make confidential records "relating to a child who is convicted of and has satisfied the judgment for or who has received a dismissal after deferral of disposition for" a non-traffic, fine-only misdemeanor offense. TEX. CODE CRIM. PROC. ANN. art. 45.0217 (West Supp. 2013); TEX. FAM. CODE ANN. § 58.00711 (West Supp. 2013). The House Bill makes confidential any records "relating to a child who is charged with, is convicted of, is found not guilty of, had a charge dismissed for, or is granted deferred disposition for" such an offense. 6

5 Act of May 22, 2013, 83d Leg., R.S., ch. 1257, § 1, 2013 Tex. Sess. Law Serv. 3181, 3181 (to be codified at TEX. CODE CR!M. PROC. ANN. art. 44.2811 (West Supp. 2013)).

6Act of May 22,2013, 83d Leg., R.S., ch. 1257, §§ 3-4,2013 Tex. Sess. Law Serv. 3181,3181-82 (to be codified at TEX. CODE CRIM. PROC. ANN. art. 45.0217 (West Supp. 20 13); TEX. F AM. CODE ANN. § 58.00711 (West Supp. 2013)).


The conditions of the House Bill include both of the conditions of the Senate Bills. 7

Thus, a court that withholds a record pursuant to the Senate Bills would also be complying with the House Bill. Indeed, some records will be required to be withheld under the House Bill but not the Senate Bills. This does not mean, however, that withholding such records violates the Senate Bills, for noncompliance with a confidentiality statute occurs only if a court discloses a record that the statute requires to be withheld, and none of the amendments in the Senate Bills or the House Bill require the disclosure of records under any circumstances. A court, then, may simultaneously comply with the amendments of both the Senate Bills and the House Bill. Therefore, with respect to article 45.0217 and section 58.00711, the Senate Bills and the House Bill do not irreconcilably conflict. Because your second question assumes that a conflict exists, we do not address it.

In your third question, you ask whether the Senate Bills went into effect on September 1, 2013, and whether the provisions of the House Bill will supplant the provisions of the Senate Bills when it goes into effect on January 1, 2014. Request Letter at 3. The Senate Bills became effective on September 1, 2013.8 Because the Senate Bills and the House Bill do not conflict, they will each be effective on January 1, 2014.

In your fourth question, you ask (1) whether the enactment of the House Bill means that all non-traffic, fine-only misdemeanor cases involving children in justice and municipal courts will need to be closed to the public, and (2) whether the dockets in such cases can be publicly posted. Request Letter at 3. The confidentiality statutes govern "[a]ll records and files and information stored by electronic means or otherwise, from which a record or file could be generated." TEX. CODE CRIM. PROC. ANN. arts. 44.2811 (West Supp. 2013), 45.0217(a) (describing "all records and files" as "including those held by law enforcement"); TEX. FAM. CODE ANN. § 58.0071l(b) (West Supp. 2013). As amended by the House Bill, the statutes do not make live courtroom proceedings confidential, and the Code of Criminal Procedure generally provides that "[t]he proceedings and trials in all courts shall be public." TEX. CODE CRIM. PROC. ANN. art. 1.24 (West 2005); see also id. art. 45.041(d) (West Supp. 2013) ("All judgments, sentences, and final orders of the justice or judge shall be rendered in open court."). Thus, a court would likely conclude that the Senate Bills and the House Bill do not require that

7With regard to article 45.0217 and section 58.00711, the House Bill arguably makes the Senate Bills superfluous, and "[c]ourts 'do not lightly presume that the Legislature may have done a useless act' or enacted a meaningless statute." Tex. Att'y Gen. Op. No. GA-1014 (2013) at 2-3 (quoting Tex. Lottery Comm 'n v. First Bank ofDeQueen, 325 S.W.3d 628,637 (Tex. 2010)). However, as discussed herein, the Senate Bills became effective on September 1, 2013, four months before the House Bill, indicating that the Legislature intended for the Senate Bills to operate independently during that time. Therefore, it cannot be said that the Legislature, in adopting the Senate Bills, "enacted a meaningless statute .... " If, in practice, the House Bill obviates the Senate Bills, the "wisdom or expediency of the law is the Legislature's prerogative." Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968).

8Act of May 23,2013, 83d Leg., R.S., ch. 1407, § 23,2013 Tex. Sess. Law Serv. 3732,3738 (Senate Bill 393); Act ofMay 16,2013, 83d Leg., R.S., ch. 1319, § 5, 2013 Tex. Sess. Law Serv. 3501,3502 (Senate Bill394).


courtroom proceedings in all non-traffic, fine-only misdemeanor cases involving children be closed to the public.

A docket is subject to the confidentiality statutes to the extent that it is a "record" or a "file." See, e.g., id. arts. 44.2811(b), 45.0217(a). Because neither "record" nor "file" is defined in the Code of Criminal Procedure, a court will look to their common meanings and the context in which they are used for guidance. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). A "docket" can be defined both as a "formal record [of] all the proceedings and filings in a court case" and as a "schedule of pending cases." BLACK'S LAw DICTIONARY 552 (9th ed. 2009). The former is similar to "record" when that word is defined as "[t]he official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits." !d. at 1387. The "formal record" definition of docket is also analogous to "file," defined as "[a] court's complete and official record of a case." !d. at 704. Such dockets, therefore, are confidential as provided by the Senate Bills and the House Bill. By contrast, a "schedule" docket is merely an administrative instrument used by a court to provide general public notice of pending hearings and proceedings. As such, a court would likely conclude that such a "docket" is not a "record" or "file" subject to the confidentiality statutes.


SUMMARY

Senate Bill 393, Senate Bill 394, and House Bill 528, enacted by the Eighty-third Texas Legislature, do not irreconcilably conflict. Senate Bills 393 and 394 became effective on September 1, 2013. House Bill 528 will become effective on January 1, 2014. A court would likely conclude that the enactment of House Bill 528 will not require that the proceedings of nontraffic, fine-only misdemeanor cases involving children in justice and municipal courts must be closed to the public.

DANIEL T. HODGE First Assistant Attorney General

JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER Chair, Opinion Committee

Stephen L. Tatum, Jr.

Very truly yours,

Assistant Attorney General, Opinion Committee

From the General Counsel: January 10, 2014 Page 1

Making Sense of GA-1035: Attorney General Opines Conflicts Between Recent Juvenile

Confidentiality Amendments Are Not Irreconcilable

Ryan Kellus Turner

General Counsel and Director of Education

TMCEC

On January 2, 2014, the Office of the Attorney General of Texas issued Opinion No. GA-1035. The

announcement of the opinion, which has been highly anticipated by courts and juvenile justice

practitioners since last summer, is of particular interest to courts with jurisdiction of fine-only

misdemeanors involving children. It was issued in response to a request from the Office of Court

Administration (OCA) on July 10, 2013 (RQ-1136-GA).

The conflicts between S.B. 3931/S.B 394

2 and H.B. 528

3 are detailed in the August 2013 issue of The

Recorder. The conflict is also featured in the presentation on juvenile records featured in AY 2014

TMCEC Regional Programs.

As a preliminary matter, it is important to note that attorney general opinions do not relieve courts of their

duty to construe and reconcile statutes. An attorney general opinion is not a judgment by a court of

competent jurisdiction.4 As the Court of Criminal Appeals has stated, while attorney general opinions are

persuasive, they are not binding on courts.5 As one Texas Attorney General explained, an attorney general

opinion is highly persuasive only when it coincides with a court’s view of the law.6

I. Questions Answered

A. Whether H.B. 528 irreconcilably conflicts with S.B. 393 and S.B. 394?

In the opinion of the Attorney General, S.B. 393, S.B 394 and H.B. 528 do not irreconcilably conflict.

The Attorney General believes that the amendments to Article 44.2811 of the Code of Criminal Procedure

by the Senate Bills and House Bill, which govern records relating to children accused of non-traffic fine-

only misdemeanors when a case is before a court other than a court governed by Chapter 45 of the Code

of Criminal Procedure (i.e., county courts and appellate courts; not a municipal or justice court), “[t]aken

together, …establish three separate, independent conditions for confidentiality ...”7 Confidentiality

attaches when: (1) a child is convicted and has satisfied the judgment; (2) the child receives a dismissal

after deferral of disposition; or (3) the case is appealed.8

In terms of Article 45.0217 of the Code of Criminal Procedure, applicable to justice and municipal courts,

and Section 58.00711 of the Family Code, applicable to juvenile courts and juvenile records, the Attorney

General believes that “[t]he conditions of the House Bill include both of the conditions of the Senate

Bills.” H.B. 528 states that except as provided by Article 45.0217(b), all information may not be disclosed

to the public if the child either (1) is charged, (2) is convicted, (3) is found not guilty, (4) had a charged

dismissed, or (5) is granted deferred disposition. S.B. 393 and S.B. 394 state that except as provided by

Article 45.0217(b), all information may not be disclosed to the public if the child either (1) is convicted of

and has satisfied the judgment or (2) receives a dismissal after a deferral of disposition. The opinion

concedes in a footnote that this construction of the two versions of Article 45.0217 and Section 58.0711

arguably make the Senate Bills superfluous (i.e., redundant or unnecessary), but because H.B. 528 had an

enactment date four months after S.B. 393 and S.B. 394, it cannot be said that the Senate Bills enacted a

meaningless statute because the Senate Bills operated independently during that time.9 The opinion states

that some records will be required to be withheld under H.B. 528 but not under S.B. 393 and S.B. 394.

What records the Attorney General is referring to are not stated. Presumably, he is referring to cases in


which a child is charged, found not guilty, the charge has been dismissed, or deferred disposition is

granted. The Attorney General, citing a Supreme Court opinion, states that if in practice this obviates (i.e.,

removes or precludes) the Senate Bills, the “wisdom or expediency of law is the Legislature’s

prerogative.”10

A violation of a confidentiality statute only occurs when a court discloses a record that the

statute requires to be withheld.

B. What is the effective date of each amendment and did the House Bill supplant the Senate Bills?

The Attorney General states, “The Senate Bills became effective on September 1, 2013. Because the

Senate Bills and the House Bills do not conflict, they will each be effective on January 1, 2014.”11

C. Whether H.B. 528 constructively requires non-traffic, fine-only misdemeanors cases involving

children to be conducted in courtrooms closed to the public and whether dockets in such cases can

be publicly posted?

In the Attorney General’s opinion, he first acknowledges the broad scope of the confidentiality statutes,

then he notes that H.B 528 does not make live courtroom proceedings confidential. He then cites Article

1.24 of the Code of Criminal Procedure for the proposition that all proceedings and trials in all courts are

public and Article 45.041(d) that in municipal and justice courts all sentences and final orders of the

justice or judge shall be rendered in open court.

As to the public posting of dockets, a docket is subject to the confidentiality statutes to the extent that

they are a “record” or a “file.” Because neither “record” nor “file” is defined by statute, courts are likely

to refer to the plain meaning of these words. A docket can be defined either as a formal record of

proceedings or as a schedule of pending cases. Accordingly, a formal docket (i.e., the official report of the

proceedings in a case, including any filed papers, transcript, or tangible exhibits) is confidential. In

contrast, a “schedule docket,” an administrative instrument used to provide general public notice of

pending hearings and proceedings is neither a record nor a file subject to the confidentiality statutes.

II. Question Unanswered: Does H.B. 528 violate the constitutional openness of criminal courts in

Texas?

In both civil and criminal cases in Texas, there is a presumption that court records and proceedings are

open to public scrutiny. The records of children in juvenile court are generally presumed confidential.

However, not even juvenile court records are unconditionally confidential. The Family Code features

mechanisms, akin to release valves, where even those records presumed confidential, pursuant to a

juvenile court order, can be disclosed to “any other person, agency, or institution having a legitimate

interest in the proceeding or in the work of the court.”12

In contrast, the records of children in criminal

courts have historically been treated no differently than any other criminal record. Regardless if a child is

accused in criminal district court of first degree felony theft or charged in municipal court with fine-only

misdemeanor theft, there is a presumption that records and proceedings are open to public scrutiny.13

Society has a legal interest in such proceedings that can only be ensured by public access.14

Born from

what the Court of Criminal Appeals has called a “right of access” said to be guaranteed by the 1st and

14th Amendments, is a right to publicity in criminal proceedings that does not solely belong to criminal

defendants.15

H.B. 528 unconditionally mandates confidentiality beginning at the moment of charging

with no exceptions. In contrast to the Family Code and the law governing juvenile courts, municipal and

justice courts are provided no leeway to allow for the public inspection of records. H.B. 528 precludes

members of the media, researchers, and all other members of the public with a legitimate interest from

being able to inspect criminal case records.


The Attorney General received briefing concerning the constitutionality of H.B. 528 but because OCA did

not raise the issue in the request for an opinion, the Attorney General chose not to address it in GA-1035.

III. Analysis and Implications

A. What about “conditional confidentiality?”

Although OCA’s request clearly delineated the differences between “expanded conditional

confidentiality” and “total confidentiality,” GA-1035 makes no reference to either construct and makes no

effort to reconcile how they can co-exist. Readers can reasonably infer, however, that it is the Attorney

General’s opinion that expanded conditional confidentiality (S.B. 393 and S.B. 394) became effective

September 1, 2013 and the intent of the Senate Bills were obviated and arguably rendered superfluous

when H.B. 528 (total confidentiality) became effective on January 1, 2014. In other words, under the

Attorney General’s construction of the law, H.B. 528 enveloped S.B. 393 and S.B. 394. At the same

time, however, the Attorney General does not believe H.B. 528 supplants the Senate Bills. Each of the

bills remains effective on January 1, 2014.

B. Is H.B. 528 retrospective in application?

The amendments to Articles 44.2811 and 45.0217 of the Code of Criminal Procedure and Section

58.00711 of the Family Code, contained in H.B. 528, apply to an offense committed before, on, or after

January 1, 2014.

C. What are the implications of H.B. 528 on Third-Party Service Providers?

Perhaps there are none. The Attorney General’s rationale for why docket information can be shared

publicly and why H.B 528 does not make live courtroom proceedings confidential indirectly calls into

question the basis that TMCEC and others feared that H.B. 528 could inadvertently hinder the ability of a

court to share information with third-party service providers (non-profit teen court providers, community

service providers, social service providers, debt collectors, etc.). In both Senate Bills and in H.B.528, the

focus of Article 45.0217 is two-fold: (1) what information may not be disclosed to the public and (2) who

may inspect such information. Despite the differences between the Senate Bills and H.B. 528, all three

bills sought to prevent members of the public from gleaning information in the possession of courts and

law enforcement from records relating to children accused of non-traffic fine-only misdemeanors. None

of the bills sought to restrict courts from exercising powers or conveying information to third parties as

authorized by other statutes. Accordingly, the provisions of H.B. 528 should be construed narrowly and

with due deference to other legislative enactments that allow courts to utilize third-party service

providers. H.B. 528 is about protecting certain criminal records of children from public access, not

stifling the operation of local courts and shutting down non-profit teen court programs. Juvenile court

records are confidential under Title 3 of the Family Code. Juvenile courts have been authorized under

Section 54.032 of the Family Code to refer children to teen court since 1989. No one has questioned the

ability of a juvenile court to refer a child to a teen court program because of confidentiality. Why is this?

A likely explanation is because confidentiality is about public requests for information from the court and

has nothing to do with courts sharing information pursuant to other laws.

Conclusion

The Attorney General believes that H.B. 528 enveloped S.B. 393 and S.B. 394 and that there is no

conflict between the laws. In absence of future case law or further statutory revision by the Legislature,

Texas will have two different sets of laws on the books regarding the confidentiality of juvenile records

accused of certain fine-only misdemeanors. It is up to each municipal judge and justice of the peace to


decide whether they share the Attorney General’s opinion. Questions about the constitutionality of H.B.

528 remain unanswered. However, GA-1035 can be construed to support the proposition that laws

governing confidentiality of juvenile records from public access are distinct and not incongruent with

other laws pertaining to the operation of courts.

1 See, “Sections 3, 4, and 22: Conditional Confidentiality Extended to Deferral of Disposition for Certain Offenses”

p. 27. 2 See, “Conditional Confidentiality for Records of Children Receiving Deferred Disposition for Certain Fine-Only

Misdemeanors” p. 35. 3 See, “Total Confidentiality for Records of Children Charged with Fine-Only Misdemeanors” p. 21.

4 Tex. Atty. Gen. Op. GA-115 (2003) at 2.

5 Ex parte Schroeter, 958 S.W.2d 811, 812 (Tex. Crim. App. 1997) (citing Tussey v. State, 494 S.W.2d 866, 870, n.

3 (Tex. Crim. App. 1973)). 6 Tex. Atty. Gen. Op. 0-7234 (1946).

7 Tex. Atty. Gen. Op. GA-1035 (2014) at 2.

8 Id.

9 Id. at 3 n. 7.

10 Id.

11 Id. at 3.

12 Secs. 58.005(a)(7), 58.007(b)(5), F.C.

13 Tex. Atty. Gen. Op. GA-0422 (2006). Re: Confidentiality of grand and petit jury lists. This presumption is rooted

in the Texas Constitution and reflected in Article 1.24 of the Code of Criminal Procedure. Professor Robert O.

Dawson, who is considered the legal architect of the Texas juvenile justice system explained, “Records in

[municipal and justice] courts are criminal records even when they pertain to a defendant who is a child. They are

not subject to the confidentiality restrictions that apply to juvenile records. However, special expunction provisions

are available in such cases.” Robert Dawson, Texas Juvenile Law, 346 (8th ed. 2008). 14

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980), the Supreme Court held that “a presumption

of openness inheres in the very nature of a criminal trial under our system of justice.” 15

Houston Chronicle Pub. Co. v. Shaver, 630 S.W.2d 927, 931 (Tex. Crim. App. 1982).

Documents

Presentation Outline: Juvenile Records