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                                        March 25,199l




Honorable Ronald Earle                          Opinion No. DM-9
Travis County District Attorney
P. 0. Box 1748                                  Re: Whether an individual whose juvenile
Austin Texas 78767                              files may not be sealed by virtue of section
                                                51.16(j) of the Family Code has an
                                                affirmative  duty to disclose his prior
                                                crimmal history in an application         for
                                                employment,     information,   or licensing
                                                (RQ-2188)

Dear Mr. Earle:

        You have requested our opinion regarding whether an individual whose juvenile
files may not be sealed has an affirmative duty to disclose his prior criminal history in an
application for employment, information, or licensing.

        Section 51.16 of the Family Code provides for the sealing of the files and records of
persons who are “found to have engaged in delinquent conduct or conduct in need of
supervision.” Subsection (a) describes the procedure by which an individual may apply to a
court for an order sealing his juvenile records, or by which the court may do so on its own
motion. Subsection (h) then declares:

               A person whose files and records have been sealed under this Act
          is not required in any proceeding or in any application for employment,
          information, or licensing to state that he has been the subject of a
          proceeding under this Act; and any statement that he has never been
          found to be a delinquent child shall never be held against the person in
          any criminal or civil proceeding.



In 1987, the legislature added’subsection   (j) to section 51.16. That provision reads:




                                                p.   44
Honorable    Ronald Fade - Page 2      ( DM-9 )




                 A court may not order under this section the sealing or destruction
            of files and records concerning an adjudication of delinquency based on
            the violation of a penal law of the grade of felony.

You ask whether subsection (j) prevents an individual who was adjudicated delinquent on
the basis of a felony charge from claiming the benefit afforded by subsection (h). You do
not raise any question about files sealed before the effective date of subsection (j).

        A person may not claim the benefit of subsection (h) unless his “files and records
have been sealed under this Act.” Since subsection (i) clearly prohibits a court from
ordering the sealing of any juvenile record “concerning an adjudication of delinquency
based on the violation of a penal law of the grade of felony,” it follows that subsection (h)
bas no application to such records. Thus, such person may not benefit from the.provision
of subsection (h) of section 51.16 of the Family Code that certain juvenile offenders are not
required to state that they have ‘been the subject of a proceeding” under title 3 of the
Family Code.

                                       SUMMARY

                  A person who has been adjudicated delinquent on the basis of the
            violation of a penal law of the grade of felony and whose records may
            not be sealed pursuant to section 51.16(h) of the Family Code is not
            entitled to state on an application for employment, information, or
            licensing that he has not been the subject of a proceeding under title 3
            of the Family Code.

                                                       Very truly yours,




                                                       DAN      MORALES
                                                       Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General




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Honorable   Ronald Earle - Page 3    ( DM- 9 )




JUDGE ZOLLIE !XEAKLEY (Ret)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

SUSAN GARRISON
Acting Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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