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March 25,199l

Honorable Ronald Earle Travis County District Attorney P.0. Box 1748 Austin Texas 78767 Opinion No. DM-9 Re: Whether an individual whose juvenile files may not be sealed by virtue of section 51.16(j) of the Family Code has an affirmative duty to disclose his prior crimmal history in an application for employment, information, or licensing (RQ-2188) Dear Mr. Earle: You have requested our opinion regarding whether an individual whose juvenile files may not be sealed has an affirmative duty to disclose his prior criminal history in an application for employment, information, orlicensing. Section 51.16 ofthe Family Code provides for the sealing ofthe files and records of persons who are “found to have engaged in delinquent conduct or conduct in need of supervision.” Subsection (a) describes the procedure bywhich an individual may apply to a court for an order sealing hisjuvenile records, or by which the court may do so on its own motion. Subsection (h) then declares:

A person whose files and records have been sealed under this Act isnot required in any proceeding or in any application for employment, information, or licensing to state that he has been the subject of a proceeding under this Act; and any statement that he has never been found to be adelinquent child shall never be held against the person in any criminal or civil proceeding.
In 1987,the legislature added’subsection (j) to section 51.16. That provision reads:

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A court may not order under this section the sealing or destruction offiles and records concerning an adjudication ofdelinquency based on the violation ofapenal lawofthe grade offelony. You ask whether subsection (j) prevents an individual who was adjudicated delinquent on the basis of a felony charge from claiming the benefit afforded by subsection (h). You do not raise any question about files sealed before the effective date ofsubsection (j). A person may not claim the benefit of subsection (h) unless his “files and records have been sealed under this Act.” Since subsection (i) clearly prohibits a court from ordering the sealing of any juvenile record “concerning an adjudication of delinquency based on the violation ofa penal law ofthe grade offelony,” it follows that subsection (h) bas no application to such records. Thus, such person may not benefit from the.provision ofsubsection (h) ofsection 51.16 ofthe Family Code that certain juvenile offenders are not required to state that they have ‘been the subject of a proceeding” under title 3 of the Family Code. SUMMARY

A person who has been adjudicated delinquent on the basis ofthe violation of apenal law ofthe grade offelony and whose records may not be sealed pursuant to section 51.16(h) of the Family Code is not entitled to state on an application for employment, information, or licensing that he has not been the subject of aproceeding under title 3 ofthe Family Code. Very truly yours,

DAN MORALES Attorney General ofTexas WILL PRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General

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JUDGE ZOLLIE !XEAKLEY (Ret) Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General SUSAN GARRISON Acting Chairman, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General

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