DAN MORALES 

ATTOHNEY OENERAL 

QBfficc of the 9Utornep QBeneral 

AiState of PCexas 

March 6,1997 

The Honorable Tii Curry 

Tan-ant County Criminsl District Attorney 

401 West Belknap 

Fort Worth, Texas 76196-0201 

kM.T.cUrry: 

Opinion No. DM-435 

Re: Whether Family Code section 

58.001(c) requims a law enforcement 

agency to destroy all information 

relating to certain juveniles (BQ-879) 

You ask seve.rrd questions about section 58.001(c) of the Family Code, which 

K&RS law enforcement agencies to destroy all information mlating to certain juveniles. 

Tiie 3 of the Family Code, chapters 51 through 60, comprise the Juvenile Justice Code. 

Chapter58govemsrecmdsreMqtojuveniles. Sub&pterA&testorecords 

gemraUy, and suhchapter B requks the Department ofPublic safety (‘DPS”) to maimain 

a database for a computetiaed juvenile justice information system. Fam. Code 8 58.102. 

Juvenile boards rue chsrged with compiling information for the juvenile justice system on 

the local level. See id $58.105. 

You ask about the mpirements of Fsmily Code section 58.001, which is in 

subchapter A relating to records generally, and provides as follows: 

(a) Law eatbcement officers or other juvenile justice personnel 

shall collect information described by Section 58.104 as a part of the 

juvenile justice intbrmation system created under Subchapter B. 

(b) The it&ormation is available as provided by Subchapter B. 

(c) A law enforcement agency may forward inthrmation, 

inch~ding photographs and Sngerprints relating to a child who has 

been detained or taken into custody by the agency to [DPS] for 

inclusion in the juvenile justice information system created under 

Subchapter B only if the child is referred to juvenile court on or 

before the 10th day ather the date the child is detained or taken into 

custody. Jfthe child is not referred to juvenile court within that time, 

the law enforcement agency shall destroy all infonnolion, including 

photographs and fIngerprin@ relating to the child unless the child is 

placed in a first offider program under Section 52.031 or on 

tiormal disposition under Section 52.03. The law enforcement 

agency may not forward any information to II)PS] rekting to the 

child while the child is in a tirst offender program under Section 

52.031 or on informsl disposition under Section 52.03. On 
The Honorable Tim Curry - Page 2 (DM-435) 

successfu1 completion by the child of a first offender program under 

Section 52.03 1 or informal disposition under Section 52.03, the law 

enforcement agency shall destroy all infommtion, including 

photographs and fingerprints, relating to the child. Emphasis 

added.] 

You are particularly interested in the requirements of subsection (c). The language 

of subsection (c) was added in 1995 by the Seventy-fourth Legislatures in conference 

~nunittee. See S.R 1173, $18, 74th Leg., RS. (1995) (suspending Senate Rule 

12.03(4) in order to add subsection (c) to section 58.001 in conference committee). 

Because this language was not considered by the legislature until the very end of the 

legislative process, we have not been able to find any legislative history that would shed 

light on the legislature’s intent. At any rate, subsection (c) is not ambiguous. It plainly 

requires a law enforcement agency to destroy all information relating to a child who has 

been taken into custody created pursuant to that arrest if the child is not referred to 

juvenile court within ten days, udess the child is placed in a first offender program under ‘. Family Code section 52.03 1 or on informal disposition under Family Code s6chon 52.03. 

Intheeventachildisplacedioafirstoffenderprogramoroninformaldisposition,thelaw 

enforcement agency must destroy all information relating to the child created pursuant to 

that arrest ifthe child succes&dly completes the program or informal disposition. 

Your first questions focus on the meaning of the phrase “all information” in the 

second and fourth sentences of subsection (c). Fii you state that a juvenile and an adult 

may be arrested at the ssrne time for the same offense, and that the arrest report will 

include the names of both individuals. In other cases, two or more juveniles may be 

arrested and the srrest report will include all their names. In the event the child (or, in the 

latter case, one of the children) is not referred to juvenile court or successlUy completes a 

first offender program or tiormal disposition, you ask whether subsection (c) requires a 

law enforcement agency to destroy the entire arrest report. Subsection (c) speaks in terms 

of information rather than documents or records. For this reaso4 we do not believe it 

requires the destruction of the entire arrest report. The redaction of the report to remove 

any information identifying the child who was not referred to juvenile court or who 

successfully completed a first offender program or informal disposition would appear to 

satisfy subsection (c). We note, however, that section 58.007 requires that law 

enforcement records and fles concerning a child shall “be kept separate from adult files 

and records.” This would appear to require that separate records, including arr& reports, 

be made for a juvenile arrestee in the first situation you describe.2 Fiiy, we stress that 

‘See Act of h&y 27, 1995,74thleg., RS., ch. 262.0 53.1995 Ta Gen. Laws 2517.2549-M. 

zAltu redacting information dating to the anesl of a juvcnik from an adult arrest mod, we 

believe it would be pamis.siile for a law enforcement agency to indicate in the adult arrest record that the 

adult was meated with n juvenile, if the identity of the juwnile is not discbscd, or, aUematively, to list 

the juvenile as 8 witness to the offense, if then is no indication that the juvenile was armted. We also 

note. as a general matter that the requirement in Family code section 58.007 that law enforcement records 

(footnote continued) 
The Honorable Tim Curry - Page 3 (DM-435) 

section 58.001(c) requires only the destruction of information relating to a child created 

pursuant to the arrest. It does not require the destruction of information in the possession 

of a law enforcement agency pertaining to the child that was not created pursuant to the 

arrest, such as information in other records or files obtained prior to the arrest not directly 

related to the arrest. 

You ask whether information must be destroyed regardless of its form and if it 

must be destroyed within a certain time period. Subsection (c) uses the words ‘WI 

information.” It applies to all infbrmation discussed above within the possession of the 

law enforcement agency regardless of its form, includmg information in computerized 

form. Subsection (c) does not specify a time period within which information must be 

destroyed. Section 58.002, however, requires a law enforcement agency to certify that 

photographs and fIngerprints required to be destroyed under section 58.001 have been 

destroyed at the end of each calendar year. Fam. Code 5 58.002(b). Section 58.002 

appears to contemplate that photographs an4 Gngerprints must be destroyed before the 

end of the calendar year in which they Fe colhxted. With the exception noted .&low, we 

believe that it would be reasonable for a law enforcement agency to use this timetable for 

the destrution of all other information under section 58.001(~).~ It would be diffkult for 

a law enfbrcement agency to justify the retention of information for any greater length of 

time., given the requiem& of section 58.002. 

Information relating to a child who has suw compkted a tirst offender 

program must be retained for 90 days afkr the date the child completes the program for 

the following reason. Section 52.0310) provides that the case of a child referred for 

disposition under a Grst offender program must be refexred to juvenile court if “the child 

completes the program but is taken into custody . . . before the 90th day after the date the 

child completes the program for conduct other than the conduct for which the child was 

&&red to the f%st offender program.” Id. 5 52.031(j)(3). Destruction of all information 

relating to the child pursuant to section 58.001(c) before the 90th day after the date the 

child completes the program would impede the enforcement of this requirement. Section 

52.031(j) and section 58.001(c) were enacted in the same legislation4 and must be 

hamonized if possible. CJ Gov’t Code 3 311.025. They csn be harmonized by 

(footaotc adimled) 

andlilcsmnecmin gachildshall”bc~separatefromadultfilesaadncords”nquirsthatalaw 

enforcement agency must maintain wholly sqrste 6ling systems for juveniles snd ad&q but it does not 

prohibit information about a juvenile from appear@ in an adult record or information about an adult 

from appearing in a jwenilc nzwrd. 

3C/: Houston Chmicle Publishing Co. v. Maftox, 767 S.W.2d 695, 689 (Tex. 1989) (what 

statutory provision contained no deli&e deadlines for attornq ~cnual decision, attorney genaal was 

~toectwithinrrasonabletimandnottodelaybcyondtimeoeededtorracbdecision). 

‘See Ad of May 27, 1995,74th Leg., RS., ch. 262.8 19 (adding Fam. Chde 5 52.031(j)), 0 53 

(adding Fam. Code 5 58.001(c)), 1995 Tex. Gen. Laws 2517.2526-27.2549-50. 

P. 2425 
The Honorable Tim Cuny - Page 4 (DM-435) 

construing section 58.001(c) not to require the destruction of information relating to a 

child who hss completed a first offender program before the 90th day after the date the 

child completes the program. 

Next, you ask about the e.tTect of the destruction of information under section 

58.001(c) on a law enforcement agency’s ability to administer a first offender program. 

You state that ifinformation 

on a juvenile is destroyed upon completion of a first offender 

program or informal dispositio4 there will be no way for the claw 

enforcement agency] to determine if a child has been [a] first 

offender or not. In effect, a juvenile could possibly have the option 

to participate in a tirst offender program on more than one occasion 

without the existence of the records to demonstrate to the contrary. 

Your question assumes that a child who has successGUy completed the first offender 

program or informal disposition is therea& ineligiile for referral to the first offender 

program. Section 52.03 l(d)(l) provides that a law enforcement officer may refer a child 

to the law enfo rcement officer or agency designated to process children under the first 

otlknd~ program for disposition under the program if “the child has not previously been 

adjudicated as having engaged in delinquent conduct.” Nothing in section 52.031 (with 

the exception of the limited &umstances set forth in subsection (i) as discussed above) 

suggests that a child who has successtidly completed the tirst offender program or 

tiormal disposition is ineligible for referral to the tirst offender program. Section 52.03 1 

is plain on its face. It is within the province of the legislature, not this office, to amend 

section 52.03 1 to tighten the eligibility requirements for the tirst offender program. 

Fiiy, you express concern that the destruction of information under section 

58.001(c) will negatively affect various operations of law enfbrcement agencies5 You 

point out, for example, that the destruction of information could affect law enforcement 

agencies’ abiity to evaluate juveniles’ continuing unnacts with police and to pursue leads 

in investigations of major crimes. As noted above, section 58.001(c) does not require a 

law e-nSorcement agency to destroy all information in its possession rehtting to a juvenile, 

but rather all information relating to the juvenile created pursuant to the particular arrest. 

Furthermore, although we understand your concerns about the impact of section 

58.001(c), in enacting this provision the legislature appears to have balanced the privacy 

interests of children and law enforcement interests. It is for the legislature, not this office, 

to evaluate the e&ctiveness of this balance and to amend the statute if necessary. 

5Youlii11arcasofaxxem. Itisnotclear~mthcitemsonthisListwhcthtryouintcndtoask 

about the inter&ion of section 58.001(c) and other pattiah statutory requhnents or manly to express 

your mnmm aboot the &ed of section 58.001(c) on law enfonxnent operations in general. In tbc event 

that you have questions aboul the implications of section 58.001(c) for particular statutory requirements, 

please present and brief those questions spdically. 

p. 2426 
The Honorable Tim Curry - Page 5 (DM-435) 

SUMMARY 

Family Code section 58.001(c) requires a law enforcement 

agency to destroy all information relating to a child who has been 

taken into custody created pursuant to the arrest if the child is not 

referred to juvenile court within ten days, unless the child is placed in 

a first offender program or on int&mal disposition. In the event a 

child is placed in a Srst offender program or on informal disposition, 

the law enforcement agency must destroy all information relating to 

the child created pursuant to the arrest if the child successWy 

completes the program or informal disposition. 

Subsection (c) requires the destruction of all information relating 

to a child created pursuant to an arrest in the possession of a law 

enforcement agency regardless of its form, including information in 

computerized form. Subsection (c) requires the destruction only of 

information relating to the child created pursmmt to the arrest and 

does not necess&y require the destruction of entire documents. 

Family Code section 58.007 rquires that law entbrcement records 

and fdes concerning a child shall “be kept separate from adult tiles 

and records” It would be reasonable for a law enforcement agency 

to destroy information relating to a child created pmsuant to an 

arrest by the end of the calendar year in which it is collected. 

Information relating to a child who has completed a first offender 

program, however, must be retained for ninety days a&r the date the 

child completes the program. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Mary R Grouter 

Assistsnt Attorney General 

n. 2427