Untitled Texas Attorney General Opinion

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 77 515 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

'Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at I, 3 (Mar. 28, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Jeri Yenne - Page 2 (GA-1017)

(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.
The Honorable Jeri Yenne - Page 3 (GA-1017)

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. !d. 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."' !d. (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." !d. § 58.007l(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
The Honorable Jeri Yenne - Page 4 (GA-1017)

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.
The Honorable Jeri Yenne - Page 5 (GA-1017)

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).

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