When can Texas juvenile case records be destroyed, on paper or permanently?

Plain-English summary

Jeri Yenne, the Brazoria County Criminal District Attorney, asked the Attorney General to clear up an apparent conflict inside Family Code section 58.0071, which governs destroying records and files in juvenile cases. As she read it, subsection (b) seemed to let a custodian destroy the original paper records at any time if the information was duplicated and stored electronically, while subsections (d) and (e) seemed to attach age-based and other conditions before any destruction.

The Attorney General concluded the subsections do not actually conflict, and the difference turns on a defined term. Section 58.0071(a)(2) defines "physical records and files" to include electronic versions, so that defined term means the juvenile record in its entirety, paper and electronic together. Subsection (b) does not use that defined term; it refers only to destroying "records and files" once the information is duplicated electronically. The AG read that as authorizing the conversion of paper records into electronic form, not the permanent destruction of the record. Subsection (c), by contrast, authorizes destruction of "physical records and files," the full defined term, which means wiping out the record entirely.

Reading the statute to give every subsection effect, the Attorney General concluded that under subsection (b) a custodian may destroy the hard-copy original paper records at any time so long as the information is electronically duplicated and stored. To permanently destroy a juvenile record so that no copy survives in any format, three conditions in subsection (c) must be met: the custodian must be a juvenile board, a law enforcement agency, or a prosecuting attorney; the records must pertain to a closed juvenile case; and the age-and-adjudication restrictions in subsections (d) and (e) must be satisfied. Because subsection (b) does not mention the subsections (d) and (e) limits, the AG presumed the Legislature did not intend to apply them to mere paper-to-electronic conversion.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Brazoria County Criminal District Attorney (as the opinion described it): The opinion told the district attorney that there was no real conflict in section 58.0071. It distinguished two different acts: converting paper records to electronic form (allowed any time under subsection (b), with no age limits) and permanently destroying the entire record (allowed only under subsection (c), when the custodian is a juvenile board, law enforcement agency, or prosecuting attorney, the case is closed, and the subsections (d) and (e) conditions are met).

Records custodians, juvenile boards, law enforcement, and prosecutors (as the opinion described it): The opinion described who may authorize permanent destruction and the age tiers in subsection (d), which range from at least 18 for the least serious matters, to at least 21 for certain misdemeanor or unadjudicated conduct, to at least 31 where the most serious adjudicated allegation was felony-grade delinquent conduct.

Common questions

Can paper juvenile records be shredded once they are scanned?
According to the opinion, yes. Under subsection 58.0071(b), a custodian may destroy hard-copy original paper records at any time as long as the information is duplicated and stored electronically, because that is treated as converting the format rather than destroying the record.

Do the age limits apply to scanning and shredding paper?
The opinion concluded they do not. Subsection (b) does not reference the subsections (d) and (e) restrictions, so the AG presumed the Legislature did not intend those limits to apply to paper-to-electronic conversion.

What does it take to permanently destroy a juvenile record entirely?
The opinion said three things must be true: the custodian must be a juvenile board, a law enforcement agency, or a prosecuting attorney; the records must pertain to a closed juvenile case; and the restrictions in subsections (d) and (e) must be met.

What are the age tiers for permanent destruction?
The opinion described subsection (d) as allowing permanent destruction when the respondent is at least 18 (for the least serious matters), at least 21 (for certain misdemeanor-grade or unadjudicated conduct), or at least 31 (where the most serious adjudicated allegation was felony-grade delinquent conduct).

Background and statutory framework

The opinion applied ordinary statutory-construction principles, citing the Texas Supreme Court's decision in Fresh Coat, Inc. v. K-2, Inc. (begin with the text and its plain meaning, and presume the whole statute is effective), Government Code section 311.021(2), and the Texas Supreme Court's decision in Bd. of Adjustment of San Antonio v. Wende (read a statute to avoid conflict and superfluities). It explained that an irreconcilable conflict exists only when a person cannot comply with both provisions, citing Tex. Att'y Gen. Op. No. GA-0470 (2006) and the Houston court of civil appeals' decision in State v. Jackson (affirmed by the Texas Supreme Court).

The decisive move was the defined term. Section 58.0071(a)(2) defines "physical records and files" to include electronic media, so the AG read subsection (b)'s use of the undefined phrase "records and files" as narrower than subsection (c)'s use of the defined "physical records and files." Citing the Texas Supreme Court's decision in Tex. Mut. Ins. Co. v. Ruttiger on the presumption that the Legislature deliberately includes and omits words, the opinion concluded the subsections (d) and (e) limits attach to permanent destruction under (c) but not to paper-to-electronic conversion under (b).

Citations

Cases:

• Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010)
• Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 432 (Tex. 2002)
• State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)
• Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012)

Statutes:

• Tex. Fam. Code Ann. § 58.0071(a)(2), (b)-(e) (West 2008)
• Tex. Gov't Code Ann. § 311.021(2) (West 2013)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0470 (2006) at 2

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1017
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1017.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 13, 2013

The Honorable Jeri Yenne Opinion No. GA-1017
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Whether Family Code section 58.0071
Angleton, Texas 77515 authorizes the custodian of physical records
and files in a juvenile case to destroy hard
copies in particular instances (RQ-1119-GA)

Dear Ms. Yenne:

You ask for clarification regarding subsections of Family Code section 58.0071 which, in your view, "appear to conflict with one another."[1] Section 58.0071 authorizes the destruction of certain physical records and files pertaining to juvenile cases, providing in pertinent part:

(b) The custodian of physical records and files in a juvenile case may destroy the records and files if the custodian duplicates the information in the records and files in a computer file or information on microfilm, microfiche, or any other electronic storage media.

(c) The following persons may authorize, subject to Subsections (d) and (e) . . . , the destruction of the physical records and files relating to a closed juvenile case:

(1) a juvenile board in relation to the records and files in the possession of the juvenile probation department;

(2) the head of a law enforcement agency in relation to the records and files in the possession of the agency; and

(3) a prosecuting attorney in relation to the records and files in the possession of the prosecuting attorney's office.

(d) The physical records and files of a juvenile case may only be destroyed if the child who is the respondent in the case:

(1) is at least 18 years of age and:
(A) the most serious allegation adjudicated was conduct indicating a need for supervision;
(B) the most serious allegation was conduct indicating a need for supervision and there was not an adjudication; or
(C) the referral or information did not relate to conduct indicating a need for supervision or delinquent conduct and the juvenile court or the court's staff did not take action on the referral or information for that reason;
(2) is at least 21 years of age and:
(A) the most serious allegation adjudicated was delinquent conduct that violated a penal law of the grade of misdemeanor; or
(B) the most serious allegation was delinquent conduct that violated a penal law of the grade of misdemeanor or felony and there was not an adjudication; or
(3) is at least 31 years of age and the most serious allegation adjudicated was delinquent conduct that violated a penal law of the grade of felony.

(e) If a record or file contains information relating to more than one juvenile case, information relating to each case may only be destroyed if:
(1) the destruction of the information is authorized under this section; and
(2) the information can be separated from information that is not authorized to be destroyed under this section.

TEX. FAM. CODE ANN. § 58.0071(b)-(e) (West 2008). In your view, subsection (b) appears to authorize the custodian of physical records and files in a juvenile case to destroy the "hard copy" original paper records at any time if the custodian duplicates and stores the information electronically, while subsections (d) and (e) appear to require the custodian to first meet certain criteria set forth therein. Request Letter at 3. Given this apparent conflict, you ask whether the physical, original paper records of a juvenile case may ever be destroyed and, if so, when and under what conditions. Id. at 3-4.

In construing a statute, a court's "'ultimate purpose ... is to discover the Legislature's intent,'" beginning "with the statute's text, relying whenever possible on the plain meaning of the words chosen." Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010) (citations and footnotes omitted). In examining the text, a court will "[presume] that lawmakers intended what they enacted" and "that 'the entire statute is intended to be effective.'" Id. (citations and footnotes omitted); see also TEX. GOV'T CODE ANN. § 311.021(2) (West 2013). A court will read a statute "to avoid conflict and superfluities if possible." Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 432 (Tex. 2002). "Irreconcilable conflict involves a direct conflict such that a person cannot comply with both provisions." Tex. Att'y Gen. Op. No. GA-0470 (2006) at 2; see also State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston 1963) (stating that statutes cannot be harmonized "only when" they are "directly and irreconcilably in conflict"), aff'd, 376 S.W.2d 341 (Tex. 1964). With these principles in mind, we examine Family Code section 58.0071.

We note at the outset the following definition in section 58.0071(a)(2): "'Physical records and files' include entries in a computer file or information on microfilm, microfiche, or any other electronic storage media." TEX. FAM. CODE ANN. § 58.0071(a)(2) (West 2008). The term "physical records and files" as used throughout section 58.0071 thus refers to a juvenile record in its entirety, collectively including both paper-based and electronic records and files. In subsection 58.0071(b), which authorizes the custodian of records in a juvenile case to destroy "records and files" so long as the custodian duplicates and stores the information in those files electronically, the Legislature does not use the defined term "physical records and files" in describing the items authorized to be destroyed. Instead subsection (b) refers simply to the destruction of "records and files." Thus, subsection 58.0071(b) authorizes not the permanent destruction of a record in its entirety, but merely the conversion of information from paper-based files into an electronic format.

In contrast, subsection 58.0071(c) authorizes the destruction of "physical records and files" under certain conditions. Because the term "physical records and files" encompasses paper-based and electronic records, subsection 58.0071(c) thus contemplates the permanent destruction of a juvenile record in its entirety if certain parameters are met. First, the custodian must be a juvenile board, law enforcement agency, or prosecuting attorney. Second, the record must pertain to a "closed juvenile case." Third, the destruction is "subject to Subsections (d) and (e) and any other restriction the person may impose." Id. § 58.0071(c); see also id. § 58.0071(d) (providing that "[t]he physical record and files of a juvenile case may only be destroyed" if the child has reached one of three age tiers, under which certain conditions regarding adjudication of the case must have been met), (e) (setting conditions for destruction "[i]f a record or file contains information relating to more than one juvenile case"). Notably, subsection (b) makes no reference to the restrictions of subsections (d) and (e). See Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012) (noting that a court "presumes the Legislature deliberately and purposefully selects words and phrases it enacts, as well as deliberately and purposefully omits words and phrases it does not enact"). Thus, we presume that the Legislature intended not to impose the restrictions of subsections (d) and (e) to the destruction of paper-based records that will be maintained electronically pursuant to subsection (b).

In summary, the various subsections of Family Code section 58.0071 can each be given full effect without any conflict. Given the lack of conflict, a plain reading of the statute authorizes the custodian of physical records and files in a juvenile case to destroy hard-copy, original paper records and files at any time pursuant to subsection 58.0071(b) as long as the custodian electronically duplicates and stores the information in the records and files. To destroy juvenile records and files permanently, such that there remain no copies of the information in any format: (1) the custodian of records must be a juvenile board, law enforcement agency, or prosecuting attorney; (2) the records and files must pertain to a closed juvenile case; and (3) the restrictions of section 58.0071(d) and (e) must be met.

SUMMARY

Family Code subsection 58.0071(b) authorizes the custodian of physical records and files in a juvenile case to destroy hard-copy, original paper records and files at any time if the custodian electronically duplicates and stores the information in the records and files. Family Code subsection 58.0071(c) authorizes a juvenile board, law enforcement agency, or prosecuting attorney to permanently destroy paper-based and electronic records and files of closed juvenile cases subject to the restrictions of subsections 58.0071(d) and (e).

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1, 3 (Mar. 28, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").