Untitled Texas Attorney General Opinion

QBfficc of the 9Utornep QBeneral AiStateof PCexas DAN MORALES ATTOHNEY OENERAL March 6,1997

The Honorable Tii Curry Opinion No. DM-435 Tan-ant County Criminsl District Attorney 401 West Belknap Re: Whether Family Code section Fort Worth, Texas 76196-0201 58.001(c) requims a law enforcement agency to destroy all information relating to certain juveniles (BQ-879)

kM.T.cUrry:

You ask seve.rrd questions about section 58.001(c) of the Family Code, which K&RS law enforcement agencies to destroy all information mlating to certain juveniles. Tiie 3 of the Family Code, chapters 51 through 60, comprise the Juvenile Justice Code. Chapter58govemsrecmdsreMqtojuveniles. Sub&pterA&testorecords gemraUy, and suhchapter B requks the Department ofPublic safety (‘DPS”) to maimain a database for a computetiaed juvenile justice information system. Fam. Code 8 58.102. Juvenile boards rue chsrged with compiling information for the juvenile justice system on the local level. See id $58.105.

You ask about the mpirements of Fsmily Code section 58.001, which is in subchapter A relating to records generally, and provides as follows:

(a) Law eatbcement officers or other juvenile justice personnel shall collect information described by Section 58.104 as a part of the juvenile justice intbrmation system created under Subchapter B. (b) The it&ormation is available as provided by Subchapter B.

(c) A law enforcement agency may forward inthrmation, inch~ding photographs and Sngerprints relating to a child who has been detained or taken into custody by the agency to [DPS] for inclusion in the juvenile justice information system created under Subchapter B only if the child is referred to juvenile court on or before the 10th day ather the date the child is detained or taken into custody. Jfthe child is not referred to juvenile court within that time, the law enforcement agency shall destroy all infonnolion, including photographs and fIngerprin@ relating to the child unless the child is placed in a first offider program under Section 52.031 or on tiormal disposition under Section 52.03. The law enforcement agency may not forward any information to II)PS] rekting to the child while the child is in a tirst offender program under Section 52.031 or on informsl disposition under Section 52.03. On

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successfu1 completion by the child of a first offender program under Section 52.03 1 or informal disposition under Section 52.03, the law enforcement agency shall destroy all infommtion, including photographs and fingerprints, relating to the child. Emphasis added.] You are particularly interested in the requirements of subsection (c). The language of subsection (c) was added in 1995 by the Seventy-fourth Legislatures in conference ~nunittee. See S.R 1173, $18, 74th Leg., RS. (1995) (suspending Senate Rule 12.03(4) in order to add subsection (c) to section 58.001 in conference committee). Because this language was not considered by the legislature until the very end of the legislative process, we have not been able to find any legislative history that would shed light on the legislature’s intent. At any rate, subsection (c) is not ambiguous. It plainly requires a law enforcement agency to destroy all information relating to a child who has been taken into custody created pursuant to that arrest if the child is not referred to juvenile court within ten days, udess the child is placed in a first offender program under ‘. Family Code section 52.03 1 or on informal disposition under Family Code s6chon 52.03. Intheeventachildisplacedioafirstoffenderprogramoroninformaldisposition,thelaw enforcement agency must destroy all information relating to the child created pursuant to that arrest ifthe child succes&dly completes the program or informal disposition.

Your first questions focus on the meaning of the phrase “all information” in the second and fourth sentences of subsection (c). Fii you state that a juvenile and an adult may be arrested at the ssrne time for the same offense, and that the arrest report will include the names of both individuals. In other cases, two or more juveniles may be arrested and the srrest report will include all their names. In the event the child (or, in the latter case, one of the children) is not referred to juvenile court or successlUy completes a first offender program or tiormal disposition, you ask whether subsection (c) requires a law enforcement agency to destroy the entire arrest report. Subsection (c) speaks in terms of information rather than documents or records. For this reaso4 we do not believe it requires the destruction of the entire arrest report. The redaction of the report to remove any information identifying the child who was not referred to juvenile court or who successfully completed a first offender program or informal disposition would appear to satisfy subsection (c). We note, however, that section 58.007 requires that law enforcement records and fles concerning a child shall “be kept separate from adult files and records.” This would appear to require that separate records, including arr& reports, be made for a juvenile arrestee in the first situation you describe.2 Fiiy, we stress that

‘See Act of h&y 27, 1995,74thleg., RS., ch. 262.0 53.1995 Ta Gen. Laws 2517.2549-M.

zAltu redactinginformationdating to the anesl of a juvcnik from an adult arrestmod, we believeit would be pamis.siile for a law enforcementagencyto indicatein the adultarrestrecordthat the adult was meated with n juvenile, if the identityof the juwnile is not discbscd, or, aUematively,to list the juvenile as 8 witness to the offense, if then is no indicationthat the juvenile was armted. We also note.as a generalmatterthat the requirementin Family code section 58.007 that law enforcementrecords (footnotecontinued)

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section 58.001(c) requires only the destruction of information relating to a child created pursuant to the arrest. It does not require the destruction of information in the possession of a law enforcement agency pertaining to the child that was not created pursuant to the arrest, such as information in other records or files obtained prior to the arrest not directly related to the arrest.

You ask whether information must be destroyed regardless of its form and if it must be destroyed within a certain time period. Subsection (c) uses the words ‘WI information.” It applies to all infbrmation discussed above within the possession of the law enforcement agency regardless of its form, includmg information in computerized form. Subsection (c) does not specify a time period within which information must be destroyed. Section 58.002, however, requires a law enforcement agency to certify that photographs and fIngerprints required to be destroyed under section 58.001 have been destroyed at the end of each calendar year. Fam. Code 5 58.002(b). Section 58.002 appears to contemplate that photographs an4 Gngerprints must be destroyed before the end of the calendar year in which they Fe colhxted. With the exception noted .&low, we believe that it would be reasonable for a law enforcement agency to use this timetable for the destrution of all other information under section 58.001(~).~ It would be diffkult for a law enfbrcement agency to justify the retention of information for any greater length of time., given the requiem& of section 58.002.

Information relating to a child who has suw compkted a tirst offender program must be retained for 90 days afkr the date the child completes the program for the following reason. Section 52.0310) provides that the case of a child referred for disposition under a Grst offender program must be refexred to juvenile court if “the child completes the program but is taken into custody . . . before the 90th day after the date the child completes the program for conduct other than the conduct for which the child was &&red to the f%st offender program.” Id. 5 52.031(j)(3). Destruction of all information relating to the child pursuant to section 58.001(c) before the 90th day after the date the child completes the program would impede the enforcement of this requirement. Section 52.031(j) and section 58.001(c) were enacted in the same legislation4 and must be hamonized if possible. CJ Gov’t Code 3 311.025. They csn be harmonized by

(footaotcadimled) andlilcsmnecmin gachildshall”bc~separatefromadultfilesaadncords”nquirsthatalaw enforcementagency mustmaintain whollysqrste 6ling systemsforjuveniles snd ad&q but it does not prohibit informationabout a juvenile from appear@ in an adult record or informationabout an adult from appearingin a jwenilc nzwrd.

3C/: Houston Chmicle PublishingCo. v. Maftox, 767 S.W.2d 695, 689 (Tex. 1989) (what statutoryprovision contained no deli&e deadlines for attornq ~cnual decision, attorneygenaal was ~toectwithinrrasonabletimandnottodelaybcyondtimeoeededtorracbdecision).

‘See Ad of May 27, 1995,74th Leg., RS., ch. 262.8 19 (adding Fam. Chde 5 52.031(j)), 0 53 (addingFam. Code 5 58.001(c)), 1995 Tex. Gen. Laws 2517.2526-27.2549-50.

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construing section 58.001(c) not to require the destruction of information relating to a child who hss completed a first offender program before the 90th day after the date the child completes the program.

Next, you ask about the e.tTect of the destruction of information under section 58.001(c) on a law enforcement agency’s ability to administer a first offender program. You state that ifinformation on a juvenile is destroyed upon completion of a first offender program or informal dispositio4 there will be no way for the claw enforcement agency] to determine if a child has been [a] first offender or not. In effect, a juvenile could possibly have the option to participate in a tirst offender program on more than one occasion without the existence of the records to demonstrate to the contrary.

Your question assumes that a child who has successGUy completed the first offender program or informal disposition is therea& ineligiile for referral to the first offender program. Section 52.03 l(d)(l) provides that a law enforcement officer may refer a child to the law enfo rcement officer or agency designated to process children under the first otlknd~ program for disposition under the program if “the child has not previously been adjudicated as having engaged in delinquent conduct.” Nothing in section 52.031 (with the exception of the limited &umstances set forth in subsection (i) as discussed above) suggests that a child who has successtidly completed the tirst offender program or tiormal disposition is ineligible for referral to the tirst offender program. Section 52.03 1 is plain on its face. It is within the province of the legislature, not this office, to amend section 52.03 1 to tighten the eligibility requirements for the tirst offender program.

Fiiy, you express concern that the destruction of information under section 58.001(c) will negatively affect various operations of law enfbrcement agencies5 You point out, for example, that the destruction of information could affect law enforcement agencies’ abiity to evaluate juveniles’ continuing unnacts with police and to pursue leads in investigations of major crimes. As noted above, section 58.001(c) does not require a law e-nSorcementagency to destroy all information in its possession rehtting to a juvenile, but rather all information relating to the juvenile created pursuant to the particular arrest. Furthermore, although we understand your concerns about the impact of section 58.001(c), in enacting this provision the legislature appears to have balanced the privacy interests of children and law enforcement interests. It is for the legislature, not this office, to evaluate the e&ctiveness of this balance and to amend the statute if necessary.

5Youlii11arcasofaxxem. Itisnotclear~mthcitemsonthisListwhcthtryouintcndtoask aboutthe inter&ion of section58.001(c) and other pattiah statutoryrequhnents or manly to express your mnmm abootthe &ed of section 58.001(c) on law enfonxnent operationsin general. In tbc event that you have questionsaboul the implicationsof section 58.001(c) for particularstatutoryrequirements, please presentand briefthosequestionsspdically.

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SUMMARY

Family Code section 58.001(c) requires a law enforcement agency to destroy all information relating to a child who has been taken into custody created pursuant to the arrest if the child is not referred to juvenile court within ten days, unless the child is placed in a first offender program or on int&mal disposition. In the event a child is placed in a Srst offender program or on informal disposition, the law enforcement agency must destroy all information relating to the child created pursuant to the arrest if the child successWy completes the program or informal disposition.

Subsection (c) requires the destruction of all information relating to a child created pursuant to an arrest in the possession of a law enforcement agency regardless of its form, including information in computerized form. Subsection (c) requires the destruction only of information relating to the child created pursmmt to the arrest and does not necess&y require the destruction of entire documents. Family Code section 58.007 rquires that law entbrcement records and fdes concerning a child shall “be kept separate from adult tiles and records” It would be reasonable for a law enforcement agency to destroy information relating to a child created pmsuant to an arrest by the end of the calendar year in which it is collected. Information relating to a child who has completed a first offender program, however, must be retained for ninety days a&r the date the child completes the program.

DAN MORALES Attorney General of Texas

JORGE VEGA Fii Assistant Attorney General

SARAH J. SHIRLEY Chair, Opinion Committee

Prepared by Mary R Grouter Assistsnt Attorney General

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