We recently put out a memo requesting that when officers arrest a suspect for DWI with a Child Passenger they make sure to get the name, DOB, and take a photo of the child. An officer brought Family Code sec. 58.002 to my attention and was concerned that they were not allowed to take these kinds of photos. It seems obvious that this should not prevent the officer from taking the photo since the kid is not a suspect in delinquent conduct, but I couldn't find anything else permitting the photo. From the definition of "child" under the Juvenile Justice Code, I think kids 0 - 9 are exempted since they are not a "child", as defined, but what about kids 10 - 17? Do we really have to take them to a juvenile judge to get an OK? This would be an absurd result because the same concept would preclude us from taking photos at the scene of an injury to a child case and many other child abuse-oriented cases, without taking the child to a court. Someone please point me to the right section so that I can advise this officer. Also, does "photograph" include videotapes of the kid on an in-car camera?

My reply to the officer would be that Chapter 58 deals with the collection and retention of records for the juvenile justice information system. The purpose of that system is outlined in Sec. 58.103.

This photograph is not being taken to document the child's involvement in the juvie system or creation of a CR43-J and thus Chap. 58 does not control or apply to this situation.

In this case its as you pointed out --evidence of a crime committed by the driver.

I am equally interested in this question--at least with respect to videotaping or photographing children in the course of a traffic stop or arrest of a driver of car in which the child is a passenger. I considered the impact of art. 18.021, CCP, but decided that article only applied in cases where law enforcment needs to photograph a child for evidentiary purposes in cases involving the enumerated offenses and can't get or does not want to request, consent of child's parent or guardian. However, a child passenger of a vehicle in which the driver has been arrested for a criminal offense such as DWI seems to be a different situtation altogether. So I am also interested in what the members of this forum think on the issue.

Janette Ansolabehere
DPS

Actually Janette, the concerned officer was a trooper. He told me that he was probably going to ask DPS legal for an opinion on this, so it will probably be headed your way soon through more formal channels.