                           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
 The Honorable Tim Curry - Page 2                 (DM-435)




             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)
 The Honorable Tim Curry - Page 3                  (DM-435)




 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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 The Honorable Tim Cuny - Page 4                 (DM-435)




 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.




                                                 p.   2426
 The Honorable Tim Curry - Page 5                (DM-435)




                                    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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