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ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### Mr. David Slayton AdministrativeDirector Office ofCourtAdministration Post OfficeBox 12066 Austin, Texas 78711-2066 DearMr. Slayton: January 2, 2014
OpinionNo. GA-1035 Re: Confidentiality of records in juvenile misdemeanorcases (RQ-1136-GA)

You ask four questions regarding recent amendments to articles 44.2811 and 45.0217 of the Code ofCriminal Procedure and section 58.00711 ofthe Family Code (the "confidentiality statutes"). 1 

### You explain that the Eighty-third Legislature adopted three bills-Senate Bill 393, Senate Bill 394, and HouseBill 528-tbatamended each ofthe 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 ofthe confidentiality statutes, and you are unsure how to reconcile them.4 !d. 

### at2. SenateBill 394 incorporatesthepertinentamendments ofSenate Bill 393, so we refer generallyto the "SenateBills" andthe "HouseBill." You first ask whether the Senate Bills irreconcilably conflict with the House Bill. !d. 

### Like the courts, ourprimary objective whenconstruing statutes "isto ascertain and give effectto the Legislature's intent." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). Atthe outset, we assume thatthe Legislature, inenacting a statute, intended for the entire

1Letter from Mr. David Slayton, Admin. Dir., Office ofCt. Admin., to Honorable Greg Abbott, Tex. Att'y Gen. at2-3 (July 10, 2013), http://www.texasattomeygeneral.gov/opin("RequestLetter").

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

. 3See ActofMay22, 2013, 83dLeg., R.S., ch. 1257, §6, 2013 Tex. Sess. Law Serv. 3181, 3182 (House Bill 528).
4We received briefing concerning the effect ofHouse Bill 528 on the constitutional openness ofcriminal courts. However, you didnotraise that issue in yourrequest, so we do not address ithere.Mr. David Slayton

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statuteto be effective and intendedajustandreasonableresultthatis feasible ofexecution. TEX. Gov'TCODE 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 ofthe Senate Bills precludes the amendments contained in the House Bill, and none ofthe bills contain a saving provision that resolves potential conflicts with other laws. Thus, we look to the plain language ofthe confidentiality statutes as amended by the Senate Bills and the House Bill to determine whetherthey canbe harmonized. To that end, this office has previously stated that an irreconcilable conflict exists when it is impossible to comply withbothprovisions atthe sametime. Tex. Att'yGen. Op. No. GA-0369 (2005) at4 (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 oferror. 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 ofand has satisfied thejudgment 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 ofrecords 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 ofthe Senate Bills andthe House Bill do notirreconcilablyconflict. Article 45.0217 ofthe Code ofCriminal Procedure, applicable tojustice 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 "relatingto a child who is convicted ofand has satisfiedthejudgmentfor 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 dismissedfor, or is granted deferred dispositionfor" suchanoffense. 6

5Act ofMay 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 ofMay 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. 2013); TEX. FAM. CODE ANN. §58.00711 (West Supp. 2013)).Mr. 

### David Slayton

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The conditions ofthe House Bill include both ofthe conditions ofthe Senate Bills.7 

### Thus, a court that withholds arecord pursuantto 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 ifa court discloses a record thatthe statute requires to be withheld, and none ofthe amendments in the Senate Bills or the House Bill require the disclosure ofrecords 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 ofthe House Bill will supplant the provisions ofthe Senate Bills when it goes into effect on January 1, 2014. Request Letter at 3. The Senate Billsbecame effective on September 1, 2013. 8 

### Because the Senate Bills and the House Bill do not conflict, they will eachbe effective onJanuary 1, 2014. In your fourth question, you ask (1) 

### whether the enactment ofthe House Bill means that all non-traffic, fine-only misdemeanor cases involving children injustice 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 courtroomproceedings confidential, and the Code ofCriminal Procedure generally provides that "[t]he proceedings and trials in all courts shall be public." TEX. CODECRIM. PROC. ANN. art. 1.24 (West 2005); see also 

### id. art. 45.041(d) (West Supp. 2013) ("All judgments, sentences, and final orders ofthe justice orjudge 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 SenateBills becameeffectiveon 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 ofthe law is the Legislature'sprerogative." Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968). 8Act ofMay 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).Mr. David Slayton

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courtroom proceedings in all non-traffic, fine-only misdemeanor cases involving children be closedto 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 ofCriminal Procedure, a court will look to their common meanings and the context inwhichthey are used for guidance. City of Rockwallv. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). A "docket" canbe definedboth as a "formalrecord [of] all theproceedings and filings in a court case" and as a "schedule ofpending cases." BLACK'S LAw DICTIONARY 552 (9th ed. 2009). The former is similarto "record"whenthat word is defined as "[t]heofficialreport ofthe proceedings in a case, including the filed papers, a verbatim transcript ofthe 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 ofa case." !d. at 704. Such dockets, therefore, are confidential as providedbythe 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 nota "record" or "file" subjectto the confidentiality statutes.Mr. David Slayton

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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 courtwould likely concludethatthe enactment of House Bill 528 will not require that the proceedings of nontraffic, fine-only misdemeanor cases involving children injustice and municipal courts mustbe closedto thepublic.

DANIEL T. HODGE FirstAssistantAttorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K

.HOELSCHER Chair, Opinion Committee Stephen L. Tatum, Jr. Verytrulyyours,

AssistantAttorney General, OpinionCommittee