                            T~~~R-~~OI~NEYGENERAI~
                                     OF TEXAS

   JOEIN     L    x3xl.s.
*TroILN&y        OENEXCAL
                                    August 3, 1977




            Honorable Wilson E. Speir           Opinion No. H-1034
            Director, Texas Department of
              Public Safety                     Re: Records of breath
            5805 N. Lamar Boulevard             tests administered to
            Austin, Texas 78773                 minors.

            Dear Col. Speir:

                 You have asked our opinion whether article 67011-5,
            V.T.C.S., authorizes the administration of breathalyser
            tests to minors and, if so, whether the minor's name can be
            entered on a breathalyser log maintained by the Department
            of Public Safety. Article 67011-5 declares that "any person"
            who operates a motor vehicle on-the public highways shall be
            deemed to have given consenLc to a breath test for purposes
            of determining the alcoholic content of his blood. Refusal
            to submit to such test by "a person under arrest" may re-
            sult in suspension of the person's license to drive. Id. S
            2. Results of the test are admissible at "any . . . pz
            ceeding" arising out of the person's alleged driving while
            under the influence of intoxicating liquor. -Id. 9 3.

                  We believe it clear that the provisions of article 67011-5
            are applicable to minors as well as adults. Section 8.07(a)T2)
            of the Penal Code now prohibits criminal prosecution of a per-
            son for driving while intoxicated if the offender is younger
            than 15 years of age, and permits criminal prosecution of per-
            sons 15 and 16 vears old onlv if the juvenile court waives
            jurisdiction and certifies the individual for criminal prose-
            cution. EX parte Tulles, 541 S.W.2d 167, 170 n. 3 (Tex. Crim.
            App. 1976). Such behavior constitutes "conduct indicating a
            need for supervision," and is within the exclusive original
            jurisdiction of the juvenile court. Family Code 6s 51.03(b) (4);
            51.04. See Attorney General Opinion H-1020 (1977) at 2 - 3.
            Juvenilesay    be taken into custody "pursuant to the laws of
            arrest," see Attorney General Opinion H-487 (1975) at 2, al-
            though thaetention    is legally considered an "arrest" only
            "for the purpose of determining the validity of taking him
            into custody or the validity of a search." Family Code § 52.01
             (a) (21, (b). Testing procedures such as those authorized in




                                      p. 4265
Honorabie Wilson E. Speir - page 2     (H-1034)



article 67Oil-5 "plainly constitute searches." Schmerber v.
California, 384 U.S. 757, 767 (19661. The validity of any
breath test administered to a minor should, therefore, be de-
termined under article 67011-5, and we believe the provisions
of that article relative to-suspension of licenses and admis-
sion of evidence are likewise appiicable to minors.

     The records of any test administered to a minor must,
however, be maintained in conformity with the requirements
of sections 51.14 and 51.i6 or the Family Code. Section
51.14(c) requires that law enforcement files and records con-
cerning a child should be kept separate from adult records,
and maintained "on a local basis only and not sent to a central
state or rederal depository."  Such records "are not open to
public inspection" and are open only to tiersons designated in
section 51.14(d), unless the juveniie court certifies an of-
fender for prosecution as an aduit. Upon appropriate motion,
the juvenile court may order all law enforcement files on ,a
minor sent to the court, where the record shall be sealed.
Family Code ti 51.16(a).

     We believe, therefore, that any record which might "fur-
nish a basis for the identification of the child," Attorney
General Opinion H-529 (1975) at 4, must be maintained sepa-
rateiy from adult files, on a local basis only; and should be
maintained in a form permitting its severance from the records
of other individuais, to permit possible removal and sealing
and to prevent disclosure of the individual's identity in pro-
ceedings to which he is not a party.

                        SUMMARY

          Article 67011-5, V.T.C.S., authorizes the
          administration of breath tests to minors
          as well as aduits. Records of such a test,
          when administered to a person under 17
          years of age, must be maintained in confor-
          mance with the requirements of sections
          51.14 and 51.16 of the Family Code.




                                  ttorney General of Texas




                          p. '4266
Honorable Wilson fi. Speir - page 3   (H-1034)


APPROVED:




DAVID M. KtiNDALL, First Assistant




Opinion Committee

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