Mr. David Reilly Executive Director Texas Juvenile Justice Department Post Office Box 12757 Austin, Texas 78711

DearMr. Reilly: 

## KEN PAXTON ATTORNEY GENERAL OF TEXAS
March 28, 2016

OpinionNo. KP-0073 Re: Applicability of expunction orders under article 45.0541 ofthe Code ofCriminal Procedure to records in the possession of a juvenile probation department as a result ofa referral for delinquent conduct as defined by subsection 51.03(a)(2) of the Family Code (RQ-0057-KP)

You ask about the applicability ofexpunction orders under article 45.0541 ofthe Code of Criminal Procedure to records inthe possession ofajuvenileprobation department as a result ofa referral for delinquent conduct as defined by subsection 5l.03(a)(2) ofthe Family Code. 1 Your questions derive from the changes made by House Bill 2398. Request Letter at 2; Act ofMay 30, 2015, 84th Leg., R.S., ch. 935, 2015 Tex. Gen. Laws 3224, 3224 ("H.B. 2398"). UnderTexas law, school attendance for children 6 through 18 years of age is compulsory. TEX. EDUC. CODE §25.085(b). Priorto the enactmentofH.B. 2398, a student's excessive absence from school could be addressed in either criminal proceedings or civil juvenile law proceedings.2 In appropriate circumstances, a school district could file a criminal complaint for violation ofsection 25.094 of the Education Code, the former Class C misdemeanor offense of failure to attend school.3 / Alternatively, the school district could "refer the student to ajuvenile court for [civil proceedings to determine] conduct indicating a need for supervision" under subsection 51.03(b)(2) of the

1 See Letter from Mr. David Reilly, Exec. Dir., Tex. Juvenile Justice Dep't, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Sept. 29, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

2See Act ofMay 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951, 2001 Tex. Gen. Laws 5396, 5400- 01, amendedby H.B. 2398, § 13 at 3231-32.

3See Act ofMay 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951(a)(I), (b)(l), 2001 Tex. Gen. Laws 5396, 5400-01; see also Act ofMay 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 25.094, 1995 Tex. Gen. Laws 2207, 2294-95, repealedby H.B. 2398, §41(2) at 3255.Mr. David Reilly

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Family Code.4 If a criminal complaint was filed, the court trying the criminal offense had jurisdictionto issue an order requiring thejuvenile to attend school without unexcused absences. 5 Ifajuvenile violated the order, a court could retainjurisdiction and adjudicate the contempt, 'or it could refer thejuvenile to the appropriatejuvenile court to consider the contempt as constituting delinquent conduct. TEX. CODE CRIM. PROC. art. 45.050(c)(l). H.B. 2398 eliminated the criminal offense of failure to attend school. See H.B. 2398, § 41(2) at 3255 (repealing section 25.094 ofthe Education Code). The bill designated certain courts as truancy courts to address "truant conduct" as codified in chapter 65 ofthe Family Code. See TEX. FAM. CODE §§ 65.003, .004. "Truant conduct may be prosecuted only as a civil case in atruancycourt." Id.§ 65.003(b). Thebill not onlyrepealedthe offense offailure to attend school, it enacted article 45.0541, entitled "Expunction of Failure to Attend School Records," which provides: (a) In this article, "truancy offense" means an offense committed underthe former Section 25.094, Education Code. (b) An individual who has been convicted ofa truancy offense or has had a complaint for a truancy offense dismissed is entitled to have the conviction or complaint and records relating to the conviction or complaint expunged. (c) Regardless of whether the individual has filed a petition for expunction, the court in whichthe individual was convicted or a complaint for a truancy offense was filed shall order the conviction, complaints, verdicts, sentences, and other documents relating to the offense, including any documents in thepossessionofa school district orlawenforcement agency, to be expunged from the individual's record. After entry of the order, the individual is released from all disabilities resulting from the conviction or complaint, and the conviction or complaint may not be shown or made known for any purpose. TEX. CODE CRIM. PROC. art. 45.0541. You explainthatjuvenile probation departments have received expunction orders in cases in which a court with criminaljurisdictionhad referred a charge ofcontemptto ajuvenile courtto determine ifthe alleged contempt constituted delinquent conduct. Request Letter at 2. You ask whether "an expunction order issued under newly.created Article 45.0541, Code of Criminal

4Act ofMay 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951(a)(2), (b)(2), 2001 Tex. Gen. Laws 5396, 5400-0I, amendedby H.B. 2398, § 13 at 3231-32; see also TEX. FAM. CODE § 51.03.

5 See Act ofMay 27, 2001, 77th Leg., R.S., ch. 1514, § 9, art. 45.054, 2001 Tex. Gen. Laws 5396, 5403, amended by Act ofMay 13, 2003, 78th Leg., R.S., ch. 180, § 1, 2003 Tex. Gen. Laws 265, 265, repealed by H.B. 2398, § 41(1) at 3255.Mr. David Reilly

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Procedure, appl[ies] to documents inthe possession ofajuvenile probation department as a result ofa referral to thejuvenile court for delinquent conduct as defined by Section 51.03(a)(2) [ofthe Family Code]." 

### Id. at 1. You state that courts that have issued expunction orders appear to construe article 45.0541 as applicable to the referral documents because they constitute "other documents related to the offense." 

### Id. at 2. Onthe otherhand, you inform us that arguments have been made that article 45.0541 does not apply to documents related to a referral to thejuvenile court, "because, once a case is referred to juvenile court, all documents sent with that referral becomejuvenile records." 

### Id. at 3. You note that generally, the Rules ofCivil Procedure rather thanthe Code ofCriminalProcedure governjuvenilecourtproceedings. 

### Id. at 3 & n.4 (citing TEX. FAM. CODE 

### § 51.17). You further note that general expunction statutes do not apply tojuvenile records "because expunction statutes apply to a person 'arrested' andjuveniles are not 'arrested' but are instead, 'taken into custody."' 

### Id. at 3; 

### see also TEX. CODE CRIM. PROC. art. 55.0l(a) (the general expunction statute available to "[a] person who has been placed under a custodial or noncustodial arrest"). Courts construing a statute attempt "to determine and give effecttothe Legislature'sintent, which is generally reflected inthe statute'splain language." 

### CHCA Woman's Hosp., L.P. v. Lidji, 403 S.W.3d 228, 231 (Tex. 2013). By its plain language, the right of expungement in article 45.0541 concerns "[a]n individual who has been convicted of a truancy offense or has had a complaint for a truancy offense dismissed," and applies to "records relating to the conviction or complaint expunged." TEX. CODE CRIM. PROC. art. 45.0541(b). Article 45.0541 is not limited to a person "arrested," unlike the general expunction statute you mention. 

### Compare id. art. 45.0541 (expunction offailure to attend school offense records), with 

### id. art. 55.0l(a) (general expunction statute). Article 45.0541 further explains that the expunction order applies to "the conviction, complaints, verdicts, sentences, andotherdocumentsrelatingto the offense [in]

...the individual's record." 

### Id. art. 45.0541(c). And while the article states thatthe order applies to such documents, "including any documents in the possession ofa school district or law enforcement agency," it is not limited to those governmental entities. 

### Id.; see TEX. Gov'TCODE § 311.005(13) (stating that "includes" and "including"in a statute "areterms ofenlargement and not oflimitationorexclusive enumeration"). Thus, documents that are maintained by ajuvenile probation department in an individual's record and that otherwise meet the specification ofdocuments in article 45.0541 are subject to expunction under that article. As you describe them, referral documents in possession ofajuvenileprobation department issued by a court adjudicating an offense under former section 25.094 ofthe Education Code would likely be subject to expunction as constituting a "record relating to the conviction or complaint." TEX. CODE CRIM. PROC. art. 45.0541(b). Your second question is "what impact, ifany, does the expunction have on thejuvenile records related to the contempt referral and any disposition ofthat referral." Request Letter at 2, 4. More specifically, you ask whether expunction "requires any findings related to those records to be set aside and, ifso, what procedure is to be followed given these arejuvenile records." 

### Id. at 4. As you note, the Legislature has notprovided a specific procedure for expunging applicable records from an individual's record. 

### Id. at 4. Thus it will be necessary for thejuvenile probation department to determine in the first instance how to comply with a court's expunction order according to its terms and consistent with article 45.0541. See TEX. CODE CRIM. PROC. art. 45.0541(c) (providingthatafter a courtissues an expunctionorder, "theindividual is released fromMr. David Reilly

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all disabilities resultingfrom the convictionorcomplaint, andthe convictionorcomplaintmay not be shown or made known for any purpose").

### Mr. David Reilly

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SUMMARY An expunction order issued to a juvenile probation departmentunderarticle 45.0541 

### ofthe Code ofCriminal Procedure would likely apply to documents in the department's possession as a result ofa referral to thejuvenile court for delinquent conduct as defined by subsection 51.03(a)(2) ofthe Family Code. Ajuvenile probation department must determine in the first instance how to comply with a court's expunction order according to its terms and consistent with article 45.0541.



### JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee