How does your jurisdiction deal with a case where the magistrate fails to find probable cause--or--after being referred the case you feel no probable cause exists. The statute makes clear that the Court shall order the destruction of certain records, but fails to set out a procedure or state who files the request for destruction.

If anyone has addressed this problem or has a go-by it would sure help.

Thanks

Robert DuBoise

I'm not sure as to the "rightness or wrongness" of this approach, but I actually just had my first brush with this issue last week. I handle our expunctions, but not the juvenile record sealings. A defense attorney (one whom I actually like and trust) came by to explain that she was going to be filing an expunction petition for an old juvenile case that falls into your category. She said she just wanted to warn me in advance that yes, it was weird to do that in a juvenile case, but that she had extensively researched it, and an expunction seemed to be the only solution, that there was no statutory procedure for sealing the records in the normal fashion where the case never got filed. I haven't looked into it yet myself, but I believe she said she had come to this conclusion after talking to both someone in Harris County and another attorney who works for something like the Southwest Region Juvenile Public Defender's Office (I'm probably mangling that horribly, hopefully someone who regularly handles juvi matters will know what agency I'm talking about). I too would love to hear anyone else's ideas for dealing with this situation.

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

I don't think you need an order to destroy if you follow the age guidelines under 58.0071. I guess as the prosecutor you could file a motion before the appropriate age came around if you wanted to clear out your records. Unless I was just looking for something extra to do, I'd wait until the age ran or let the defense attorney make the motion with the court.

I'll have to say that I disagree with the defense atty that says an expunction is the proper motion. I think a motion to seal or a motion to destroy, depending on the type of case and the action taken or not taken by the prosecuting atty, is appropriate to address the issue. I think 58.003 covers the "no action" part and 58.006 covers the no pc. Just MHO and I will graciously deferr to the real records guru in Harris Co...Kris are you out there?

Elizabeth,

A regular expunction petition won't do any good on a juvenile. Juveniles aren't "arrested", which is the threshold requirement for an expunction, so they're not eligible. (Unless they were certified to be tried as an adult, in which case the certification counts as their arrest.) See Quertermous v. State, 52 S.W.3d 862, 864 (Tex. App.--Fort Worth 2001, no pet.)

Andrea,

"No arrest, no expunction" was my initial reaction when the attorney started telling me about this since it had always been my impression that juveniles weren't considered to have been "arrested" when taken into custody. She said the custody not = arrest rule had changed at some point in the 90s. And hey, I freely admit to knowing next to nothing about juvenile law, so I figured I may well have been wrong on that. Given that I haven't even gotten a petition on it, I hadn't taken the time to look into it yet.

But I did just now (thanks for pointing me in the right direction, from my terms search, it looks like it's probably the only case on point). The statutory language in the current version of FAM CODE 52.01(b) does pretty explicitly state that "[t]he taking of a child into custody is not an arrest", so it would be interesting to know what this attorney or whomever she's talked to is basing all this on. Does anyone here know anything about expunctions like this actually going through in Harris County?

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

Thanks for your help everyone. I went ahead and just drafted a motion to seal and filed it with the Court. It didn't seem right to put the burden and expense on the juvenile when he really didn't do anything wrong.

The best part was the look on the clerk's face when I tried to file it and told them they got to send notice (for free) to each of the law enforcement agencies and schools. They've begun to look for hiding places when I come in with a new type of filing. LOL.

Decided to have the Judge set it for hearing 61 days after service to match the other procedures in the Family Code.

If anyone wants a copy of what I filed, please let me know.

RSD

Robert,
A motion to seal or a motion to destroy ? 58.006 deals with destruction not merely sealing.

I never really saw it as an issue of right or wrong or expense to either side. The code as is provides for 2 levels of "automatic" sealing. I just saw it as over kill to file a motion to destroy in every case where there was no pc or no action. How quickly are you going to file this motion ? What if new evidence is found before the SOL runs ? If you have had your investigating agency destroy rather than seal everything how will you recontruct your case ?

Elizabeth,
Email or call Kris Moore in Harris Co. she is ALWAYS very helpful !

Stacy--I meant the destruction of the records. It must have been one of those days.

In this particular case, I'm not worried about every having to put back together the investigations. Its a drug case where the officer seized chalk dust (or sheet rock or talcum powder) and thought he had cocaine.

"Those days" are getting to be the rule for me instead of the exception

Depending on if its Kris or I that teach the next Juvi Records class, I would like to have a copy of your destruction motion to put in my presentation, if you don't mind sharing.

I handle the juvenile sealings in Harris County. I have not handled a destruction motion in many years and I have never talked to anyone about a destruction motion. There are prosecutors on the adult side who handle the expunctions but whenever they hear juvenile, they will usually refer the question to me. There are also umpteen numbers of police agencies, all telling kids and their parents something different it seems, as well as Juvenile Probation! I am happy to talk about how we do them or Kris can give you the real scoop but to set the record straight, we don't handle the juvenile destructions with expunctions in Harris County. So, if you want to hear more from my soapbox, you can call my office, 713/755-5874.