Do Texas's juvenile misdemeanor record laws conflict, and must those court hearings be closed to the public?

Plain-English summary

When the Eighty-third Legislature met in 2013, it passed three separate bills, Senate Bill 393, Senate Bill 394, and House Bill 528, that each amended the same set of statutes governing when records in juvenile misdemeanor cases must be kept confidential: Code of Criminal Procedure articles 44.2811 and 45.0217 and Family Code section 58.00711. The Senate Bills took effect September 1, 2013, and House Bill 528 on January 1, 2014. That left two competing versions of each statute on the books, and David Slayton, the Administrative Director of the Office of Court Administration, asked the Attorney General how to reconcile them, in four questions.

The first question was whether the Senate Bills irreconcilably conflict with the House Bill. The AG said no. When the Legislature amends the same statute several times in one session without cross-referencing the changes, the amendments are to be harmonized if possible, and an irreconcilable conflict exists only when it is impossible to comply with both at the same time. For article 44.2811, which deals with appeals, the Senate and House versions set up three separate, independent conditions for confidentiality, so following one does not break the other. For article 45.0217 (justice and municipal courts) and section 58.00711 (juvenile justice courts), the House Bill's conditions actually include the Senate Bills' conditions, so a court that withholds a record under the Senate Bills also satisfies the House Bill. Some records have to be withheld under the House Bill but not the Senate Bills, but that does not violate the Senate Bills, because these statutes only ever require records to be withheld, never disclosed. So a court can comply with all of them at once.

Because the second question assumed there was a conflict, and the AG found none, it did not address that question. On the third question, the AG confirmed the Senate Bills became effective September 1, 2013, and explained that because the bills do not conflict, all of them are effective as of January 1, 2014; the House Bill does not supplant the Senate Bills.

The fourth question had two parts. First, does House Bill 528 mean every non-traffic, fine-only misdemeanor case involving a child in justice and municipal court must be closed to the public? The AG said likely not. The confidentiality statutes cover records, files, and stored information, not live courtroom proceedings, and Texas law separately provides that court proceedings and trials are public and that judgments and final orders are rendered in open court. So a court would likely conclude these laws do not require closing the courtroom. Second, can dockets be posted publicly? That depends on what kind of docket it is. A docket that serves as a formal record of all the proceedings and filings in a case fits the meaning of a "record" or "file" and is confidential. But a docket that is simply a schedule of pending hearings, an administrative tool for giving public notice, is not a record or file and is not made confidential.

Currency note

This opinion was issued in 2014. 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 Office of Court Administration (as the opinion described it): The opinion answered that the three 2013 bills can be harmonized rather than treated as conflicting, that all are effective as of January 1, 2014, and that the confidentiality rules do not by themselves require closing courtroom proceedings, while distinguishing formal-record dockets (confidential) from scheduling dockets (not). It did not reach the second question, which had assumed a conflict.

Justice and municipal courts and juvenile courts (as the opinion described it): The opinion described a court as able to comply with both the Senate Bills and the House Bill simultaneously, because the statutes require withholding records and never require disclosure, and as not required to close hearings, given the open-courts rule.

Court clerks handling dockets and records (as the opinion described it): The opinion described a docket that is a formal record of the case's proceedings and filings as confidential under the statutes, and a docket that is merely a public schedule of pending hearings as outside them.

Common questions

Did the three 2013 juvenile-records bills cancel each other out?
No. The AG concluded they do not irreconcilably conflict, because a court can comply with all of them at once. They require certain records to be withheld and never require disclosure, so following the broadest one does not violate the others.

Which version of the law is in effect?
The AG explained the Senate Bills took effect September 1, 2013, and that because the bills do not conflict, all of them are effective as of January 1, 2014, when House Bill 528 took effect. The House Bill does not supplant the Senate Bills.

Do these laws mean a child's misdemeanor hearing has to be closed to the public?
The AG said likely not. The confidentiality statutes cover records and files, not live proceedings, and Texas law separately makes court proceedings public, so a court would likely conclude the laws do not require closing the courtroom.

Can the court still post its docket publicly?
It depends on the docket. The AG explained that a docket used as a formal record of the case is confidential, but a docket that is just a schedule of pending hearings, used to give public notice, is not a record or file and is not confidential.

Background and statutory framework

The confidentiality statutes are Code of Criminal Procedure articles 44.2811 (appeals, within the chapter governing appeals and writs of error) and 45.0217 (justice and municipal courts), and Family Code section 58.00711 (juvenile justice courts) (Tex. Code Crim. Proc. Ann. art. 44.2811, arts. 44.01-.47, art. 45.0217 (West Supp. 2013); Tex. Fam. Code Ann. § 58.00711 (West Supp. 2013)). The 2013 amendments came in Senate Bill 393, Senate Bill 394, and House Bill 528 (Act of May 23, 2013, 83d Leg., R.S., ch. 1407, § 23, 2013 Tex. Sess. Law Serv. 3732, 3738; Act of May 16, 2013, 83d Leg., R.S., ch. 1319, § 5, 2013 Tex. Sess. Law Serv. 3501, 3502; Act of May 22, 2013, 83d Leg., R.S., ch. 1257, 2013 Tex. Sess. Law Serv. 3181).

The AG applied the rule that the whole statute is intended to be effective and that same-session amendments to one statute are harmonized where possible (Tex. Gov't Code Ann. §§ 311.021, 311.025(b) (West 2013); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)), with an irreconcilable conflict arising only when compliance with both is impossible (State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)). On open courts, the AG relied on the rule that proceedings and trials are public and final orders are rendered in open court (Tex. Code Crim. Proc. Ann. art. 1.24 (West 2005); id. art. 45.041(d)). On dockets, the AG drew the "record" and "file" meanings from common usage (City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008)). In a footnote, the AG acknowledged the House Bill arguably made the Senate Bills superfluous as to two statutes but, noting the four months the Senate Bills operated alone, declined to treat them as meaningless, leaving any overlap to legislative prerogative (Tex. Lottery Comm'n v. First Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010); Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)).

Citations

Statutory provisions and session laws:

• Tex. Code Crim. Proc. Ann. art. 44.2811 (West Supp. 2013) (appeals; juvenile misdemeanor record confidentiality)
• Tex. Code Crim. Proc. Ann. arts. 44.01-.47 (West 2006 & Supp. 2013) (appeals and writs of error)
• Tex. Code Crim. Proc. Ann. art. 45.0217, art. 45.0217(a) (West Supp. 2013) (justice and municipal courts; all records and files)
• Tex. Code Crim. Proc. Ann. art. 1.24 (West 2005) (proceedings and trials are public)
• Tex. Code Crim. Proc. Ann. art. 45.041(d) (West Supp. 2013) (judgments rendered in open court)
• Tex. Fam. Code Ann. § 58.00711, § 58.00711(b) (West Supp. 2013) (juvenile justice courts)
• Tex. Gov't Code Ann. § 311.021 (West 2013) (entire statute effective; just and reasonable result)
• Tex. Gov't Code Ann. § 311.025(b) (West 2013) (harmonizing same-session amendments)
• Act of May 23, 2013, 83d Leg., R.S., ch. 1407, § 23, 2013 Tex. Sess. Law Serv. 3732, 3738 (Senate Bill 393)
• Act of May 16, 2013, 83d Leg., R.S., ch. 1319, § 5, 2013 Tex. Sess. Law Serv. 3501, 3502 (Senate Bill 394)
• Act of May 22, 2013, 83d Leg., R.S., ch. 1257, 2013 Tex. Sess. Law Serv. 3181 (House Bill 528)

Cases:

• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)
• State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)
• City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008)
• Tex. Lottery Comm'n v. First Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)
• Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0369 (2005) (irreconcilable conflict standard)
• Tex. Att'y Gen. Op. No. GA-1014 (2013) (courts do not presume a meaningless statute)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1035
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1035.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

January 2, 2014

Mr. David Slayton Opinion No. GA-1035
Administrative Director
Office of Court Administration Re: Confidentiality of records in juvenile
Post Office Box 12066 misdemeanor cases (RQ-1136-GA)
Austin, Texas 78711-2066

Dear Mr. Slayton:

You ask four questions regarding recent amendments to articles 44.2811 and 45.0217 of the Code of Criminal Procedure and section 58.00711 of the Family Code (the "confidentiality statutes").[1] You explain that the Eighty-third Legislature adopted three bills—Senate Bill 393, Senate Bill 394, and House Bill 528—that amended each of the confidentiality statutes. Request Letter at 1-2. Senate Bills 393 and 394 became effective on September 1, 2013.[2] Your questions arise because when House Bill 528 becomes effective on January 1, 2014,[3] there will be two versions of each of the confidentiality statutes, and you are unsure how to reconcile them.[4] Id. at 2. Senate Bill 394 incorporates the pertinent amendments of Senate Bill 393, so we refer generally to the "Senate Bills" and the "House Bill."

You first ask whether the Senate Bills irreconcilably conflict with the House Bill. Id. Like the courts, our primary objective when construing statutes "is to ascertain and give effect to the Legislature's intent." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). At the outset, we assume that the Legislature, in enacting a statute, intended for the entire statute to be effective and intended a just and reasonable result that is feasible of execution. TEX. GOV'T CODE ANN. § 311.021 (West 2013). When "amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each." Id. § 311.025(b). The Senate Bills make no reference to the House Bill, and vice versa. Further, nothing in the language of the Senate Bills precludes the amendments contained in the House Bill, and none of the bills contain a saving provision that resolves potential conflicts with other laws. Thus, we look to the plain language of the confidentiality statutes as amended by the Senate Bills and the House Bill to determine whether they can be harmonized. To that end, this office has previously stated that an irreconcilable conflict exists when it is impossible to comply with both provisions at the same time. Tex. Att'y Gen. Op. No. GA-0369 (2005) at 4 (relying on State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)).

Article 44.2811 is located in chapter 44 of the Code of Criminal Procedure, which governs appeals and writs of error. See generally TEX. CODE CRIM. PROC. ANN. arts. 44.01-.47 (West 2006 & Supp. 2013). As amended by the Senate Bills, article 44.2811 provides that records relating to "a child who is convicted of and has satisfied the judgment for or who has received a dismissal after deferral of disposition for" a non-traffic, fine-only misdemeanor offense may not be disclosed to the public. Id. art. 44.2811 (West Supp. 2013). The House Bill amends article 44.2811 to prohibit the disclosure of records relating to a non-traffic, fine-only misdemeanor offense "that is committed by a child and that is appealed."[5] Taken together, the Senate Bills and the House Bill establish three separate, independent conditions for confidentiality under article 44.2811. As a result, complying with the Senate Bills does not result in violating the House Bill, and vice versa. Therefore, with respect to article 44.2811, the amendments of the Senate Bills and the House Bill do not irreconcilably conflict.

Article 45.0217 of the Code of Criminal Procedure, applicable to justice and municipal courts, and section 58.00711 of the Family Code, applicable to juvenile justice courts, are virtually identical, so we discuss them together. The Senate Bills amend these statutes to make confidential records "relating to a child who is convicted of and has satisfied the judgment for or who has received a dismissal after deferral of disposition for" a non-traffic, fine-only misdemeanor offense. TEX. CODE CRIM. PROC. ANN. art. 45.0217 (West Supp. 2013); TEX. FAM. CODE ANN. § 58.00711 (West Supp. 2013). The House Bill makes confidential any records "relating to a child who is charged with, is convicted of, is found not guilty of, had a charge dismissed for, or is granted deferred disposition for" such an offense.[6]

The conditions of the House Bill include both of the conditions of the Senate Bills.[7] Thus, a court that withholds a record pursuant to the Senate Bills would also be complying with the House Bill. Indeed, some records will be required to be withheld under the House Bill but not the Senate Bills. This does not mean, however, that withholding such records violates the Senate Bills, for noncompliance with a confidentiality statute occurs only if a court discloses a record that the statute requires to be withheld, and none of the amendments in the Senate Bills or the House Bill require the disclosure of records under any circumstances. A court, then, may simultaneously comply with the amendments of both the Senate Bills and the House Bill. Therefore, with respect to article 45.0217 and section 58.00711, the Senate Bills and the House Bill do not irreconcilably conflict. Because your second question assumes that a conflict exists, we do not address it.

In your third question, you ask whether the Senate Bills went into effect on September 1, 2013, and whether the provisions of the House Bill will supplant the provisions of the Senate Bills when it goes into effect on January 1, 2014. Request Letter at 3. The Senate Bills became effective on September 1, 2013.[8] Because the Senate Bills and the House Bill do not conflict, they will each be effective on January 1, 2014.

In your fourth question, you ask (1) whether the enactment of the House Bill means that all non-traffic, fine-only misdemeanor cases involving children in justice and municipal courts will need to be closed to the public, and (2) whether the dockets in such cases can be publicly posted. Request Letter at 3. The confidentiality statutes govern "[a]ll records and files and information stored by electronic means or otherwise, from which a record or file could be generated." TEX. CODE CRIM. PROC. ANN. arts. 44.2811 (West Supp. 2013), 45.0217(a) (describing "all records and files" as "including those held by law enforcement"); TEX. FAM. CODE ANN. § 58.00711(b) (West Supp. 2013). As amended by the House Bill, the statutes do not make live courtroom proceedings confidential, and the Code of Criminal Procedure generally provides that "[t]he proceedings and trials in all courts shall be public." TEX. CODE CRIM. PROC. ANN. art. 1.24 (West 2005); see also id. art. 45.041(d) (West Supp. 2013) ("All judgments, sentences, and final orders of the justice or judge shall be rendered in open court."). Thus, a court would likely conclude that the Senate Bills and the House Bill do not require that courtroom proceedings in all non-traffic, fine-only misdemeanor cases involving children be closed to the public.

A docket is subject to the confidentiality statutes to the extent that it is a "record" or a "file." See, e.g., id. arts. 44.2811(b), 45.0217(a). Because neither "record" nor "file" is defined in the Code of Criminal Procedure, a court will look to their common meanings and the context in which they are used for guidance. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). A "docket" can be defined both as a "formal record [of] all the proceedings and filings in a court case" and as a "schedule of pending cases." BLACK'S LAW DICTIONARY 552 (9th ed. 2009). The former is similar to "record" when that word is defined as "[t]he official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits." Id. at 1387. The "formal record" definition of docket is also analogous to "file," defined as "[a] court's complete and official record of a case." Id. at 704. Such dockets, therefore, are confidential as provided by the Senate Bills and the House Bill. By contrast, a "schedule" docket is merely an administrative instrument used by a court to provide general public notice of pending hearings and proceedings. As such, a court would likely conclude that such a "docket" is not a "record" or "file" subject to the confidentiality statutes.

SUMMARY

Senate Bill 393, Senate Bill 394, and House Bill 528, enacted by the Eighty-third Texas Legislature, do not irreconcilably conflict. Senate Bills 393 and 394 became effective on September 1, 2013. House Bill 528 will become effective on January 1, 2014. A court would likely conclude that the enactment of House Bill 528 will not require that the proceedings of non-traffic, fine-only misdemeanor cases involving children in justice and municipal courts must be closed to the public.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Mr. David Slayton, Admin. Dir., Office of Ct. Admin., to Honorable Greg Abbott, Tex. Att'y Gen. at 2-3 (July 10, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See Act of May 23, 2013, 83d Leg., R.S., ch. 1407, § 23, 2013 Tex. Sess. Law Serv. 3732, 3738 (Senate Bill 393); Act of May 16, 2013, 83d Leg., R.S., ch. 1319, § 5, 2013 Tex. Sess. Law Serv. 3501, 3502 (Senate Bill 394).

[3] See Act of May 22, 2013, 83d Leg., R.S., ch. 1257, § 6, 2013 Tex. Sess. Law Serv. 3181, 3182 (House Bill 528).

[4] We received briefing concerning the effect of House Bill 528 on the constitutional openness of criminal courts. However, you did not raise that issue in your request, so we do not address it here.

[5] Act of May 22, 2013, 83d Leg., R.S., ch. 1257, § 1, 2013 Tex. Sess. Law Serv. 3181, 3181 (to be codified at TEX. CODE CRIM. PROC. ANN. art. 44.2811 (West Supp. 2013)).

[6] Act of May 22, 2013, 83d Leg., R.S., ch. 1257, §§ 3-4, 2013 Tex. Sess. Law Serv. 3181, 3181-82 (to be codified at TEX. CODE CRIM. PROC. ANN. art. 45.0217 (West Supp. 2013); TEX. FAM. CODE ANN. § 58.00711 (West Supp. 2013)).

[7] With regard to article 45.0217 and section 58.00711, the House Bill arguably makes the Senate Bills superfluous, and "[c]ourts 'do not lightly presume that the Legislature may have done a useless act' or enacted a meaningless statute." Tex. Att'y Gen. Op. No. GA-1014 (2013) at 2-3 (quoting Tex. Lottery Comm'n v. First Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)). However, as discussed herein, the Senate Bills became effective on September 1, 2013, four months before the House Bill, indicating that the Legislature intended for the Senate Bills to operate independently during that time. Therefore, it cannot be said that the Legislature, in adopting the Senate Bills, "enacted a meaningless statute ...." If, in practice, the House Bill obviates the Senate Bills, the "wisdom or expediency of the law is the Legislature's prerogative." Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968).

[8] Act of May 23, 2013, 83d Leg., R.S., ch. 1407, § 23, 2013 Tex. Sess. Law Serv. 3732, 3738 (Senate Bill 393); Act of May 16, 2013, 83d Leg., R.S., ch. 1319, § 5, 2013 Tex. Sess. Law Serv. 3501, 3502 (Senate Bill 394).