Does a Texas truancy expunction order cover juvenile probation department records too?

Plain-English summary

In 2015, House Bill 2398 reworked how Texas handles truancy. It repealed the old criminal offense of "failure to attend school" (former section 25.094 of the Education Code), moved "truant conduct" into new civil truancy courts under chapter 65 of the Family Code, and added article 45.0541 to the Code of Criminal Procedure, which entitles a person convicted of the old truancy offense, or whose truancy complaint was dismissed, to have the conviction or complaint and related records expunged. The Executive Director of the Texas Juvenile Justice Department asked the AG whether those expunction orders reach records held by a juvenile probation department, specifically documents that landed there when a court referred a contempt charge to juvenile court as possible delinquent conduct under Family Code section 51.03(a)(2).

The AG read article 45.0541 by its plain language. The expunction right is tied to a truancy conviction or complaint, and the order covers "the conviction, complaints, verdicts, sentences, and other documents relating to the offense." The statute lists documents "in the possession of a school district or law enforcement agency," but the AG stressed that "including" is a term of enlargement under the Government Code, not a closed list. The AG also noted that article 45.0541, unlike the general expunction statute, is not limited to a person who was "arrested," so the objection that juveniles are "taken into custody" rather than "arrested" did not keep the article from applying. Putting that together, the AG concluded that referral documents a juvenile probation department holds, when they relate to an offense under former section 25.094, would likely be subject to expunction as records relating to the conviction or complaint.

On the second question, what procedure to follow and whether findings must be set aside, the AG noted the Legislature provided no specific expunction procedure. So the AG said the 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.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG 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. Article 45.0541, the truancy provisions of the Family Code, and related statutes may have been amended since 2016, so confirm the current law before relying on these specifics.

What the opinion meant for those who asked

The Texas Juvenile Justice Department and juvenile probation departments (as the opinion described it): The opinion told the department that article 45.0541 expunction orders would likely apply to referral documents it holds when those documents relate to a former-section-25.094 offense, and that, absent a specific statutory procedure, the department must determine in the first instance how to comply with a court's order under the article's terms.

Courts issuing truancy expunction orders (as the opinion described it): The opinion described article 45.0541 as covering "other documents relating to the offense" beyond the school-district and law-enforcement examples, treating "including" as a term of enlargement rather than a limit on which custodians are reached.

Former students with truancy records, and their parents (as the opinion described it): The opinion described the expunction right as belonging to a person convicted of the old truancy offense or whose complaint was dismissed, and read it to reach related records held by a juvenile probation department, not only those held by a school or police.

Common questions

What did House Bill 2398 change about truancy in Texas?
The AG explained that H.B. 2398 repealed the criminal offense of failure to attend school, created civil truancy courts under chapter 65 of the Family Code, and enacted article 45.0541 allowing expunction of records of the former truancy offense.

Can records of the old truancy offense be expunged?
Yes. The AG noted article 45.0541 entitles a person convicted of a truancy offense, or whose truancy complaint was dismissed, to have the conviction or complaint and related records expunged.

Does the expunction reach juvenile probation department records?
The AG concluded it likely does. Documents a juvenile probation department holds that relate to a former-section-25.094 offense would likely be subject to expunction as records relating to the conviction or complaint.

Does it matter that juveniles are "taken into custody" rather than "arrested"?
The AG explained that article 45.0541, unlike the general expunction statute, is not limited to a person who was "arrested," so that distinction did not prevent the article from applying.

How does a juvenile probation department carry out the expunction?
Because the Legislature set no specific procedure, the AG said the department must determine in the first instance how to comply with the court's expunction order according to its terms and consistent with article 45.0541.

Background and statutory framework

School attendance for children 6 through 18 is compulsory, and before H.B. 2398 excessive absence could be handled criminally (the former failure-to-attend-school offense, Education Code section 25.094) or civilly (a juvenile-court referral for conduct indicating a need for supervision) (Tex. Educ. Code §§ 25.085(b), 25.094; Tex. Fam. Code § 51.03; Tex. Code Crim. Proc. art. 45.050(c)(1)). H.B. 2398 repealed the criminal offense, established civil truancy courts under chapter 65 of the Family Code, and enacted article 45.0541 to expunge failure-to-attend-school records (Act of May 30, 2015, 84th Leg., R.S., ch. 935, 2015 Tex. Gen. Laws 3224; Tex. Fam. Code §§ 65.003, .004, 65.003(b); Tex. Code Crim. Proc. art. 45.0541).

Reading article 45.0541 by its plain language, the AG observed that the expunction right turns on a truancy conviction or complaint, that the article is not limited to a person "arrested" (unlike the general expunction statute), and that "including any documents in the possession of a school district or law enforcement agency" is a term of enlargement rather than a closed list (Tex. Code Crim. Proc. arts. 45.0541(b), 45.0541(c), 55.01(a); Tex. Gov't Code § 311.005(13); Tex. Fam. Code § 51.17; CHCA Woman's Hosp., L.P. v. Lidji, 403 S.W.3d 228 (Tex. 2013)). The AG therefore concluded a juvenile probation department's qualifying referral documents are subject to expunction, with the department to determine compliance in the first instance.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. art. 45.0541 (expunction of failure-to-attend-school records)
• Tex. Code Crim. Proc. art. 45.0541(b) (who is entitled to expunction)
• Tex. Code Crim. Proc. art. 45.0541(c) (scope of expunction order)
• Tex. Code Crim. Proc. art. 45.050(c)(1) (contempt referral to juvenile court)
• Tex. Code Crim. Proc. art. 55.01(a) (general expunction statute)
• Tex. Educ. Code § 25.085(b) (compulsory attendance)
• Tex. Educ. Code § 25.094 (former failure-to-attend-school offense)
• Tex. Fam. Code § 51.03 (delinquent conduct and conduct indicating a need for supervision)
• Tex. Fam. Code § 51.17 (Rules of Civil Procedure govern juvenile proceedings)
• Tex. Fam. Code §§ 65.003, .004 (truancy courts)
• Tex. Fam. Code § 65.003(b) (truant conduct prosecuted only as a civil case)
• Tex. Gov't Code § 311.005(13) ("including" as a term of enlargement)
• Act of May 30, 2015, 84th Leg., R.S., ch. 935, 2015 Tex. Gen. Laws 3224 (H.B. 2398)

Cases:

• CHCA Woman's Hosp., L.P. v. Lidji, 403 S.W.3d 228 (Tex. 2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0073
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0073.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 28, 2016

Mr. David Reilly Opinion No. KP-0073
Executive Director
Texas Juvenile Justice Department Re: Applicability of expunction orders
Post Office Box 12757 under article 45.0541 of the Code of Criminal
Austin, Texas 78711 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)

Dear Mr. Reilly:

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 51.03(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 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)(1).

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 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. 55.01(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. 55.01(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 all disabilities resulting from the conviction or complaint, and the conviction or complaint may not be shown or made known for any purpose").

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.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[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.texasattorneygeneral.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)(1), (b)(1), 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.

[4] Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951(a)(2), (b)(2), 2001 Tex. Gen. Laws 5396, 5400-01, amended by H.B. 2398, § 13 at 3231-32; see also TEX. FAM. CODE § 51.03.

[5] See 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.