Scene: Small Town Fast Food Restaurant Manager’s Office

Employer: Johnny, I am glad you stopped by to give us a copy of your job application. We really appreciate it. However, after running your background check, I am afraid we cannot offer you the job.

Johnny: I can’t believe this. This is the fifth job this week that has turned me down. I don’t understand. I have a high school diploma. I am a diligent worker. I really want to work.

Employer: Well, I am not supposed to tell you this, but you seem like a good kid. Johnny, we ran your background check and you have a criminal history.

Johnny: Hold on. What do you mean? I know I got into some trouble back when I was 14, but that was so long ago. A couple of my friends and I decided to take a golf cart from the country club and take it for a spin around the neighborhood. It was all in good fun. However, the manager pressed charges and we got into trouble with the juvenile court. My attorney told me that it would be over once I pled guilty and completed my probation. It was stupid, but I was just a kid. They cannot hold that over my head forever.

Employer: I understand what you mean, but we run the background checks on all of our employees and prospective employees. Anyone with a criminal record, even if they were a juvenile when it happened, is automatically excluded from employment. Like I said, you seem like a good kid. If you ever get this cleared up and are still looking for work, we might think about hiring you. Until that time, we don’t have a position for you.

Like “Johnny,” many juvenile offenders have no idea that their juvenile records will impact life beyond their seventeenth birthday. Many believe that after their disposition and the completion of the terms of their probation, they will have an opportunity for a fresh start. After all, they were “just kids” when they got into trouble. Few juveniles and practicing attorneys understand that a person’s involvement with the juvenile justice system can have an impact far beyond the final adjudication. This article seeks to address why juvenile offenders should seek to have their records sealed and includes a treatment of the important issues of some of the consequences of having a juvenile record, the information every lawyer should know about sealing records, and projects and resources to assist an attorney seeking to seal a juvenile record.

What are Juvenile Records?
A juvenile record consists of information developed, assembled, or collected under the Juvenile Justice Code.1 Juvenile records are maintained for individuals between the ages of ten and 17 years old who have been referred for any offense defined by the Juvenile Justice Code.2 These records include, but are not limited to, referrals made by schools and police departments, records developed by the juvenile probation department, records of mental health experts, court records, and records developed by the Texas Youth Commission.3 However, these records do not include motor vehicle records, certain Department of Public Safety Records, records of child victims or witnesses, or records of children that are not defined as juveniles by the Juvenile Justice Code. These records are compiled from information gathered pre-adjudication or post-adjudication and contain information about past referrals and dispositions of prior cases. Juvenile records are not criminal records or municipal court records.4

Juvenile records can be physical records, such as a court file, or an electronic file that is kept by the Court and other governmental agencies, as required by law.5 Some of these files are paper, but most courts have transitioned to electronic file-keeping.

The record of a juvenile offender is classified as confidential and not available to the general public.6 These records are restricted to certain individuals including judges, probation officers, court personnel, juvenile defense attorneys, and certain governmental agencies, as required by law.7 Juvenile records are confidential insofar as the general public does not have access to the records; this is intended to allow for a greater chance of rehabilitation and transition into society once the juvenile offender has reached adulthood. However, these records may be disseminated to certain governmental agencies and other private agencies, pursuant to the authority of the Department of Public Safety to distribute these records in the same manner as it distributes adult criminal history records.8 As a result of this authority, the Department of Public Safety may grant public and private entities access to records and enable them to have access to data on the juvenile offender. This can have detrimental consequences for the juvenile.9

Consequences of a Juvenile Record
A person may face many consequences as a result of having a juvenile record, especially if that record is not sealed. Consequences include, but are not limited to, difficulty obtaining employment, housing, higher-level education, or admission into the military.

As the scenario above suggested, a juvenile record can make it hard to find employment.10 Many employers require a prospective employee to fill out a job application. Often these applications require prospective employees to state whether they have a record and list any offense they may have committed as a juvenile or as an adult. Employers may opt not to hire someone with a record and certain entities, such as governmental agencies, may be prevented by internal policies and procedures from hiring anyone with a juvenile record. If a person has a record, it may be difficult or even impossible to find work.

College admissions applications, much like employment applications, require the applicant to state whether they have a criminal record or list any offense committed whether as an adult or as a juvenile. With the college admissions process becoming more selective, admissions officers can use a juvenile record as a reason to reject an applicant.11 Applicants with a juvenile record may be less appealing to universities and educational institutions concerned with their reputation and the safety of other students.

Similar to applications for employment and college, applications to enlist in the military require a prospective candidate to disclose his or her criminal history and state any offenses committed as an adult or as a juvenile. A juvenile seeking entry into the military must give permission to military personnel to access his or her record.12 An applicant may be denied entry into the military based on his or her juvenile record.13

In addition to negatively impacting employment and education, a juvenile record has the potential to make it more difficult to reunite families. In the State of Texas, any adult or juvenile over the age of 14 living in a home with children who are in the custody of the State is subject to a background check. The Department of Family and Protective Services can refuse to place a child in a home where there is a resident with a juvenile record.14 For example, if a relative of the child in need of placement has a criminal history or juvenile record, the child cannot be placed with that relative. While this is done for the protection and safety of the child, it may interfere with a child being placed with other family members.

Other detrimental consequences may include the inability to obtain a professional license (medical, dental, law, and teaching) and the inability to work for a law enforcement entity. Sealing a juvenile record can help avoid these negative consequences.

Benefits of Sealing a Juvenile Record
Sealing a juvenile record provides a fresh start for an individual with a juvenile record because the offense is vacated and treated as if it never occurred.15 Thus, sealing a record facilitates one of the stated goals of the juvenile justice system—the rehabilitation of the juvenile. Additionally, it helps to alleviate some of the consequences of having a record. One benefit of sealing a juvenile record is that the individual does not have to disclose that they have been adjudicated as a delinquent to anyone, including prospective employers, the military, college admissions officers, or other private individuals or agencies.16 Private entities and governmental agencies do not have access to the sealed record. This includes the prosecuting attorney and police departments.

Once a record is sealed, the only way to reopen the record is upon application to the court. Notice has to be given to the individual whose record has been sealed and a hearing must be held before an order to unseal a record will be granted.17

Sealing a Juvenile Record
Sealing a juvenile record is a relatively simple process; however, it is imperative to serve every party that has a record of the juvenile’s offense with a signed copy of the Court’s order stating that a record is sealed. This is to prevent any entity from disseminating information about the record after the record is sealed.

When an Order to Seal May Be Granted
An individual seeking to seal his or her record must make an application to the Court with jurisdiction over the case.18 Prior to entering the order to seal, the Court shall conduct a hearing unless the applicant waives the right to a hearing in writing and the juvenile court and prosecuting attorney consent.19 Notice of such a hearing shall be given to the following: the individual named in the application to seal; the prosecutor; the discharging institutional authority, probation officer, or agency having custody of the individual named in the application; and law enforcement.20 At the hearing, the Court will make a determination as to whether an applicant’s records should be sealed. Once the hearing is conducted, the Court will sign an order either granting or denying the application.

In the following instances, the Court shall order the records sealed if it has been two years since discharge or an official action on a non-adjudicated case and, if since the time specified above, the individual has not been convicted of a felony or misdemeanor or adjudicated for delinquent conduct or Child In Need of Supervision (CINS) and there are no proceedings pending.21 The Court has some discretion in granting an application. The Court may order the sealing of records of an individual adjudicated of a felony if the individual is at least twenty-one; the individual was not certified to stand trial as an adult;22 the records have not been used in the penalty phase in a criminal proceeding; and, the individual has not been convicted of a felony after age seventeen.23

As of September 1, 2009, a court may automatically seal the record of any juvenile that participates in a drug court program without notice or a hearing, or may hold a hearing to determine whether the record is to be sealed.24 The record is eligible to be sealed regardless of whether a juvenile has committed a misdemeanor or felony offense.25 The prosecuting attorney or juvenile probation department is authorized to keep a record of the juvenile’s name, birth date, and the date that the juvenile completed the drug court record until the juvenile reaches the age of 17.26 As soon as practical after the juvenile’s 17th birthday, the prosecuting attorney and juvenile probation department must send a copy of the record to be included in the juvenile’s other sealed records.27

When an Order to Seal May Not Be Granted
A court may not order the sealing of records pertaining to an individual who has received a determinate sentence for a penal offense listed in section 53.045 of the Texas Family Code or habitual felony conduct under section 51.031 of the Texas Family Code. Additionally, the courts cannot seal the record of a juvenile that has been certified as an adult for the offense committed or the records of juvenile sex offenders.28

After the Order to Seal Has Been Granted
A copy of the sealing order shall be sent to each agency or official via certified mail, return receipt requested.29 This includes any agency or official that may have a record of the referral or the offense that is the subject of the order.30 Upon entry of the order,31 all records of law enforcement, the clerk, the prosecuting attorney, and the juvenile court shall be sealed and sent to the issuing court within 61 days of receiving the order. Additionally, all records of private or public agencies or institutions shall be sealed and sent to issuing court within 61 days of receiving the order, all indexed references shall be deleted within 61 days of receiving the order, and a certification of compliance must be sent to the court. The adjudication shall be vacated and treated as if it never occurred.

Projects and Resources
The Center for Children, Law, and Policy at the University of Houston Law Center is a great resource for practitioners that are seeking to seal a juvenile record. The Center has conducted a Continuing Legal Education course covering this topic and has resources and information available to attorneys seeking to seal a juvenile record. The Center is committed to linking attorneys who would like to seal a juvenile record with individuals seeking to seal their record. For more information, visit the Center’s website at http://www.law.uh.edu/center4clp/.

The American Bar Association is working on a project to document the collateral consequences of a juvenile record. Contact the American Bar Association Criminal Justice Section: Juvenile Law Committee for more information or visit their website at http://www.abanet.org/dch/committee.cfm?com=CR200000.
The juvenile defense bar in your county may also be a helpful resource for those seeking to seal a juvenile record.

Jeanice J. Dawes is a May 2008 graduate of the University of Houston Law Center and practices family law. The author would like to thank David A. Terry, Kendall Mayfield, Professor Ellen Marrus, Malikah Marrus and Miriam Riskind for assistance in researching this important topic. She would also like to thank Anita Barksdale and Elizabeth Dawes for their help with editing this article.

Endnotes
1. TEX. FAM. CODE § 58.104 (2005). 2. Id. 3. Id. 4. Id. 5. Id. at §58.007. 6. Employers can get criminal background information even if it is contained in confidential juvenile records, however. Texas law allows DPS, the state-wide repository for juvenile justice records, to provide criminal history to any criminal justice agency or any other entity so long as the agency or entity follows the federal or state statutory requirements to receive such information. For example, Texas Government Code Section 411.083 provides the requirements for criminal justice and non-criminal justice agencies to access the criminal history and background of an individual, and Texas Family Code Section 58.106 provides that any person who is authorized under section 411.083 can have access to a juvenile record. Therefore, if a civilian employer complies with the statutes in requesting criminal background information, DPS has to provide that information to the employer. 7. Id. at § 58.005. 8. Id. at § 58.106. 9. See DPS and FBI Criminal History Records-Questions and Answers, Texas Department of Public Safety, January 2009, available at http://www.txdps.state.tx.us/administration/crime_records/docs/DPS_FBI_CriminalHistoryRecords.pdf.
10. Forever Out of Work: Collateral Consequences and Their Effect on Employment, Juvenile Justice E-Newsletter (ABA Juvenile Justice Committee, Washington D.C), June 2009, available at http://www.abanet.org/crimjust/juvjust/newsletterjune09/june09/newsletterframe.htm. 11. H.B. 2836, 2009 Leg., 81st Sess. Bill Analysis-Author’s/Sponsor’s Statement of Intent (TEX. 2009). 12. TEX. FAM. CODE §58.106(a)(1) (2005). 13. Id. 14. Texas Department of Family and Protective Service-Child Protective Services Handbook § 2232.1, available at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_2232.jsp#CPS_2232_1. 15. TEX. FAM. CODE §58.003(g)(5) (2005). 16. Id. at § 58.003(j). 17. Id. at §58.003(h)-(k). 18. Id. at § 58.003(a). 19. Id. at §58.003(e). 20. Id. 21. Id. at §58.003(a)(1)-(2). 22. Texas Family Code § 54.02 states the requirements for certification of a juvenile court to stand trial as an adult and authorizes the juvenile court to transfer a case to adult criminal court. Once the child is certified to stand trial as an adult, the child is no longer eligible to have his or her record sealed. 23. Id. at § 58.003(c). 24. Id. at § 58.003(c)(1), (c)(2). 25. Id. 26. Id. 27. Id. 28. Id. at § 58.003(b). 29. Id. at 58.003(f). 30. Id. 31. Id. at § 58.003(g).