Mr. David Reilly 

Executive Director 

Texas Juvenile Justice Department 

Post Office Box 12757 

Austin, Texas 78711 

Dear Mr. Reilly: 

KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

March 28, 2016 

Opinion No. KP-0073 

Re: Applicability of expunction orders 

under article 45.0541 of the Code of Criminal 

Procedure to records in the possession of a 

juvenile probation department as a result of a 

referral for delinquent conduct as defined by 

subsection 51.03(a)(2) of the Family Code 

(RQ-0057-KP) 

You ask about the applicability of expunction orders under article 45.0541 of the Code of 

Criminal Procedure to records in the possession of a juvenile probation department as a result of a 

referral for delinquent conduct as defined by subsection 5 l.03(a)(2) of the Family Code. 1 Your 

questions derive from the changes made by House Bill 2398. Request Letter at 2; Act of May 30, 

2015, 84th Leg., R.S., ch. 935, 2015 Tex. Gen. Laws 3224, 3224 ("H.B. 2398"). Under Texas law, 

school attendance for children 6 through 18 years of age is compulsory. TEX. EDUC. CODE 

§ 25.085(b). Prior to the enactment of H.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 of section 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 a juvenile 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"). 

2

See Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951, 2001 Tex. Gen. Laws 5396, 5400-

01, amended by H.B. 2398, § 13 at 3231-32. 

3

See Act of May 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 of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 25.094, 1995 Tex. Gen. Laws 2207, 

2294-95, repealed by H.B. 2398, § 41(2) at 3255. 
Mr. David Reilly - Page 2 (KP-0073) 

Family Code.4 If a criminal complaint was filed, the court trying the criminal offense had 

jurisdiction to issue an order requiring the juvenile to attend school without unexcused absences. 5 

If a juvenile violated the order, a court could retain jurisdiction and adjudicate the contempt, 'or it 

could refer the juvenile to the appropriate juvenile 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 of the Education Code). The bill designated certain 

courts as truancy courts to address "truant conduct" as codified in chapter 65 of the Family Code. 

See TEX. FAM. CODE §§ 65.003, .004. "Truant conduct may be prosecuted only as a civil case in 

a truancy court." Id.§ 65.003(b). The bill not only repealed the offense of failure 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 

under the former Section 25.094, Education Code. 

(b) An individual who has been convicted of a 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 which the 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 

the possession of a school district or law enforcement 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 explain that juvenile probation departments have received expunction orders in cases 

in which a court with criminal jurisdiction had referred a charge of contempt to a juvenile court to 

determine if the 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 of May 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951(a)(2), (b)(2), 2001 Tex. Gen. Laws 5396, 

5400-0 I, amended by H.B. 2398, § 13 at 3231-32; see also TEX. FAM. CODE § 51.03. 

5See Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 9, art. 45.054, 2001 Tex. Gen. Laws 5396, 5403, 

amended by Act of May 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 - Page 3 (KP-0073) 

Procedure, appl[ies] to documents in the possession of a juvenile probation department as a result 

of a referral to the juvenile court for delinquent conduct as defined by Section 51.03(a)(2) [of the 

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. On the other hand, you inform us that arguments have 

been made that article 45.0541 does not apply to documents related to a referral to the juvenile 

court, "because, once a case is referred to juvenile court, all documents sent with that referral 

become juvenile records." Id. at 3. You note that generally, the Rules of Civil Procedure rather 

than the Code of Criminal Procedure govern juvenile court proceedings. Id. at 3 & n.4 (citing TEX. 

FAM. CODE § 51.17). You further note that general expunction statutes do not apply to juvenile 

records "because expunction statutes apply to a person 'arrested' and juveniles 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 effect to the Legislature's intent, 

which is generally reflected in the statute's plain 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 of failure 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, and other documents relating to the offense [in] ... the individual's 

record." Id. art. 45.0541(c). And while the article states that the order applies to such documents, 

"including any documents in the possession of a school district or law enforcement agency," it is 

not limited to those governmental entities. Id.; see TEX. Gov'T CODE § 311.005(13) (stating that 

"includes" and "including" in a statute "are terms of enlargement and not of limitation or exclusive 

enumeration"). Thus, documents that are maintained by a juvenile probation department in an 

individual's record and that otherwise meet the specification of documents in article 45.0541 are 

subject to expunction under that article. As you describe them, referral documents in possession 

of a juvenile probation department issued by a court adjudicating an offense under former section 

25.094 of the 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, if any, does the expunction have on the juvenile 

records related to the contempt referral and any disposition of that referral." Request Letter at 2, 

4. More specifically, you ask whether expunction "requires any findings related to those records 

to be set aside and, if so, what procedure is to be followed given these are juvenile records." Id. 

at 4. As you note, the Legislature has not provided a specific procedure for expunging applicable 

records from an individual's record. Id. at 4. Thus it will be necessary for the juvenile 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) (providing that after a court issues an expunction order, "the individual is released from 
Mr. David Reilly - Page 4 (KP-0073) 

all disabilities resulting from the conviction or complaint, and the conviction or complaint may not 

be shown or made known for any purpose"). 
Mr. David Reilly - Page 5 (KP-0073) 

SUMMARY 

An expunction order issued to a juvenile probation 

department under article 45.0541 of the Code of Criminal Procedure 

would likely apply to documents in the department's possession as 

a result of a referral to the juvenile court for delinquent conduct as 

defined by subsection 51.03( a)(2) of the Family Code. A juvenile 

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 of Texas 

Assistant Attorney General, Opinion Committee