Can a defendant with a felony juvenile conviction (finding of delinquency) still swear that he has not been convicted of a felony for purposes of Art. 42.12(4) & therefore still be elgible for probation from a jury? Would it matter if the juvenile records were sealed or not?

Article 42.12, which establishes the eligibility for probation, does not expressly define a juvenile adjudication as a felony conviction, so the defendant is still eligible for probation.

In other places, the Penal Code, for example, defines a prior felony adjudication resulting in TYC as a prior felony conviction for enhancement purposes. But, that is a special statute.

It is my understanding that, if your defendant qualifies for the "restricted access" to juvenile records (managed to get from 17 to 21 without a Class B or better offense) he is not only entitled to deny ever having been arrested, he is, according to Dawson, required to deny that he has been. If you were the juvenile prosecutor, you are required to forget it.............

Can you give an example of where a TYC disposition is considered a prior? I'd like to go read that.

A bill has been filed to address this situation. It would prohibit probation eligibility for a defendant who had previously been to TYC on a felony adjudication.

HB 83 (by Riddle, R-Houston)

A similar bill was filed last session but didn't get much attention.

In reading Ch 58 of the Family Code, it looks to me as though, if the former delinquent qualifies for restricted access, even this proposed change will not make the record available. Once DPS notifies me that access is restricted, my response when you call asking about proirs has to be that the records are not available.

So - even though you and I know he went down, how do you prove it?

The leg. may take care of this problem. The legislation did not have a number as of February 1. But, it seeks to amend F.C. sec. 58.211 to rescind restricted access status if the subject is convicted, etc. of an offense punishiable by jail or prison after becoming 17 years old.

Philip,
To answer your question.
You can use a juvi felony prior where the disposition was TYC to enhance the punishment range of a felony adult case, see section 51.13 Texas Family Code and 12.42 (a)(b) and (c)1 of the Texas Penal Code.
You can do that because of the special provisions but because of the lack of a special provision you can not use any juvi prior to enhance to the 25 to life range, to defeat probation eligibility or for automatic life sentence for repeat sex offenders.
I also think there is some confusion here about restricted access. The prior can still be used even if its access has been restricted, see 58.204 TFC and 411.082 Texas Government Code.
I have a power point class on juvi records if anyone is interested (hahaha).

quote:

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Originally posted by Stacey L. Brownlee:
I have a power point class on juvi records if anyone is interested (hahaha).

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Don't laugh, I'd be interested in taking a look at your slides. This is an area that I deal with a lot and don't feel particularly comfortable with. Can you email them to me?

Can do.
What's your email addy.