Untitled Texas Attorney General Opinion

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DAN MORALES
ATTORNEY
GENERAL March 21,199s

Honorable D. August Boto Opinion No. DM-334
Cooke County Attorney
3rd Floor, Courthouse Re: Whether a victim of delinquent
Gainesville, Texas 76240 conduct by a child may be a person
having 8 “legitimate interest in the
proceedhtg” for purposes of section
51.14(a)(4) of the Family Code, and
related questions (RQ-728)

Dear Mr. Boto:

Your request for an opinion involves a victim of vandalism by a child who has been
the subject of a juvenile delinquency proceeding arising out of the vandalism. You ask
whether a court may grant leave to such a victim-as a “person having a legitimate
interest in the proceeding” under Family Code (“code”) section 5 1.14(a)(4)-to inspect the
juvenile court file of the child to prepare for trial of a civil action by the victim against the
child arising out of the same incident of vandalism. You specifically ask whether such a
victim may obtain “a certitied copy of the admission of guilt on the part of the juvenile,” a
sworn stipulation of evidence by a child that has been admitted into evidence in support of
the child’s plea of true to a delinquency charge. This document would be “use[d] in
an offer of proof to establish liability for the [property] damage” suffered by the victim.
The victim also would wish to %xamine . judicial records . . in an effort to secure the
names of witnesses who could testify to prove liability on the part of’ the child.

Code section 51.14(a) provides in part as follows:
(a) [A]11files and records of a juvenile court, a clerk of
court, or a prosecuting attorney relating to a child who is a party to a
proceeding under this title are open to inspection only by:

(1) the judge, probation officers, and professional staE or
consultants of the juvenile court;

(2) an attorney for a party to the proceeding;
(3) a public or private agency or institution providing supervi-
sion of the child by arrangement of the juvenile court, or having
custody of the child under juvenile court order; or
Honorable D. August Boto - Page 2 W-334)

(4) with leave of juvenile court, any other person, agency, or
institution having a legiiimafe interest in the proceeding or in the
work ofthe court. [Emphasis added.]

The code does not define what such a “legitimate interest” would be. We believe,
however, that a person’s interest in access to juvenile records and files would not be
“legitimate” if the person’s purposes for seeking access were inconsistent with the
purposes of code title 3, which deals with delinquent children and children in need of
supervision. In this regard, we will consider section 5 1.14 in connection with code section
5 1.13, which provides in part as follows:
(a) An order of adjudication or disposition in a proceeding
under this title is not a conviction of crime, and does not impose any
civil disability ordinarily resulting from a conviction or operate to
disqualify the child in any civil service application or appointment.

(b) The adjudication or disposition of a child or evidence
aai&ed in a hearing under this title may be used only in subsequent
proceedings under this title in which the child is a party or in
subsequent sentencing proceedings in criminal court against the child
to the extent permitted by the Texas Code of Criminal Procedure,
1965. [Emphasis added.]

One of the purposes of section 5 1.13(a) and (b) and section 5 1.14(a) is found in
code section 5 1.Ol : “consistentwith the proieciion of thepublic interest, to remove from
children committing unlawful acts the taint of criminality and the consequences of criminal
behavior and to substitute a program of treatment, training, and rehabilitation.” Fam.
Code $51.01(3) (emphasis added). Similarly, the Texas Court of Criminal Appeals
inferred that a predecessor of section 5 1.13(b) was intended to protect children from the
“odium and stigma attached to any act of youthful indiscretion which had eventuated in a
prosecution.” Smith v. Stuie, 18 S.W.2d 1070, 1072 (1929). Thus, for example, the fact
that a person has been the subject of a juvenile wurt proceeding generally is not
admissible to discredit that person’s testimony in another proceeding. Rivas v. Slate, 501
S.W.2d 918, 920 (Tex. Grim. App. 1973); Smith, 18 S.W.2d at 1072; Cunnona v. Stpre,
670 S.W.2d 695, 698 (Tex. App.--Texarkana 1984). uf’d, 698 S.W.2d 100 (Tex. Crim.
App. 1985). Accordingly, Texas Rule of Civil Evidence 609 makes clear that, generally,
“[elvidence ofjuvenile adjudications is not admissible” to impeach a witness’s credibility.

Recognizing the legislature’s intention to protect a person from the permanent
stigma of an adjudication of delinquency, we also recognize that such protection is not
absolute but must be “w&tent with the protection of the public interest.” Fam. Code
§ 51.01(3). In Texas, minors generally are civilly liable for their own tortious conduct.
E.g., Chandler v. Lkaton, 37 Tex. 406 (1872-1873). Furthermore, section 33.01 of the
code provides that “[a] parent is liable for any property damage proximately caused by
. the wilful and malicious conduct of a child who is at least 12 years of age but under 18

p. 1763
Honorable D. August Boto - Page 3 (DM-334)

years of age.” The purpose of this provision and code section 33.02, which limits
recovery for such damage to actual damages not exceeding $15,000 per act, “is to protect
and compensate property owners from the wiltid and malicious destruction of their
property by minors.” Buie v. Longpmgh, 598 S.W.2d 673, 675 (Tex. Civ. App.-Fort
Worth 1980, writ ref d n.r.e.).

Although there is no Texas case in point, our research has unwvered cases from
other states in which the reviewing court, wnstruing similar wntidentiality statutes,
upheld a lower wurt’s determination that a victim’s interest in inspecting records of a
juvenile proceeding was a “legitimate” or “proper” interest. One such case is Hi&y v.
Eighth Judicial District Court, 782 P.2d 1336 (Nev. 1989). There the person requesting
inspection was the administrator of the estate of a boy who had accidentally killed himself
with a gun his friend Chris had removed from an unlocked cabinet while being letl home
alone by vacationing parents. Id. at 1337. The administrator had filed suit in district court
on behalf of the estate, alleging that Chris’s parents had been negligent in leaving him
home alone with access to the gun, and she also had filed a petition for inspection of
Chris’s juvenile records relating to the shooting incident. Id, The Supreme Court of
Nevada held that the lower court did not abuse its discretion in determining that the estate
was a person with a “legitimate interest” in juvenile wurt records sought in connection
with the estate’s pending wrongful death action arising out of the same occurrence that
was the basis of the juvenile court proceeding. Id. at 1339.

Another case, Daniels v. National Fire Insurance Co., 394 So. 2d 683, 683
& nnl-2 (La. Ct. App.), writ denied, 397 So. 2d 806 (La. 1981), involved a plaintiff in a
wrongful death action who had been admitted, as a person with a “proper interest,” to a
juvenile adjudication hearing arising out of the same occurrence, under a Louisiana law
providing that “[tlhe wurt may admit [to a juvenile adjudication hearing] any other person
who has a proper interest in the ljuvenile case] proceedings or the work of the wurt.”
The Louisiana appellate court interpreted this statute as permitting the plaintiff to obtain a
copy of the transcript of the hearing for use in the wrongful death action in spite of
another Louisiana law providing that “juvenile records shall be wntidential.” Id. at 684.
The wurt commented, “The shield of contidentiality was not designed and cannot be
permitted to fraudulently defeat civil reparation ofjuvenile wrong.” Id. at 683-84.

In another case, the reviewing wurt reversed a lower court’s order denying access
to juvenile court files sought for use in a civil suit arising out of conduct that was the
subject of the juvenile proceeding. That case,Expurfe Stare Fmm Fire & Cuwuky Co. v.
United States Fide@ & Gmmty Co., 529 So. 2d 975 (Ala. 1988), is even closer
factually to the kind of situation that you inquire about than the Hickey and Duniels cases
because it involves a civil claim arising out of conduct causing property damage rather
than death. There, a trial court had denied a motion by two insurance companies for
access to the juvenile court files of two seventeen-year-olds whom the companies had
sued for a declaration of the companies’ rights and obligations under policies insuring the
children. Id. at 975. Because the children had allegedly caused a fire and the policies

p. 1764
Honorable D. August Boto - Page 4 (DM-334)

excluded wverage for property damage intentionally caused by insureds older than
thirteen years, the companies desired access to law enforcement records and the testimony
of police and tire investigators regarding the tire in a juvenile proceeding that had
adjudicated both children to be delinquent for the commission of arson. Id. at 975-76.
The Alabama high wurt concluded that the wntidentiality right in that state’s analogue to
section 51.13 must yield, id. at 976, when information in juvenile records and files “is
essential and not otherwise reasonably available” in a civil litigant’s lawsuit, id. at 977.
The court thus implicitly held that a civil litigant, as a matter of law, is a
“person. . . having a legitimate interest in the case,” Ala. Code 8 12-15-101(b)(3), to the
extent that the juvenile records wntain such essential and otherwise unavailable
information. See 529 So. 2d at 976 (concluding that trial judge erred “as a matter of law”
in denying request). The court distinguished its earlier decision in Ex purfe Guerdon
In&stries, 373 So. 2d 322 (Ala. 1979)--which had upheld a lower court’s order denying
access to juvenile wurt tiles-on the ground that, there, the juvenile was not a litigant in
the civil action for which access was requested. Stare Fwm, 529 So. 2d at 976. The we
Farm court reversed the trial court’s order with instructions to review the requested
records and files in cmneru and to make available for inspection and use at trial, in
accordance with the rules of evidence, any information found to be “essenM and not
otherwise reasonably available in the petitioners’ civil action.” Id. at 977.

Finally, the court in Wisconsinex rel. Herget v. Circuit Court, 267 N.W.2d 309
(Wis. 1978), adopted a standard similar to S&te Furm’s standard of “essential and not
otherwise reasonably available” as proper for determining whether to grant access to
police records of a juvenile investigation when such records are sought in connection with
a civil claim arising out of conduct that was the subject of the investigation. Hergef was a
proceeding by a juvenile for a writ of prohibition to determine the lower wurt’s power to
release the juvenile’s police records for discovery in a civil action for damages arising from
an incident of vandalism that was the subject of the police investigation and a juvenile
wurt proceeding. Id. at 310-12. The Wisconsin statute at issue provided in part, “‘Peace
officers’ records of children shall be kept separate from records of persons 18 or older and
shall not be open to inspection or their contents disclosed except by order of the wurt.“’
Id. at 310 n.2 (quoting Wis. Stat. 5 48.26(l)). The statute thus lacked any general express
limitation, such as “legitimate interest,” to the wurt’s discretion to grant access to the
rec0rds.r Nevertheless, the court held discovery of law enforcement records to be
permissible only when “‘the need for wntidentiality is outweighed by the exigencies of the
circumstances.” Id. at 3 17.2

‘Compsrccode section 5 1.14(d),which contains no @zneralexpress pmvision for accem lo law
enfomment 6l.s wowming a child by anyone other than the juvenile court havingjurkdiction of the
child “in any pmceedina,”an attomcy of recordin such a proceeding,and law cnfomnent officers“when
rmxssaq for the dischargeof their oftkial duties.” Youdonotaskabout,andwedonotconsider,Ihe
scopeof this confdentialityprovision.

ZThe COUR in ffickry similarlystated as follows, in regardto the determinationof whether a
personhas a “legitimateintnest” in the disclosureof juvenile wurt RcoTds:“In exercisingits discrUion,

p. A765
Honorable D. August Boto - Page 5 (I'M-334)

The Hergei court then articulated procedures and standards for determining
whether and how to grant access to juvenile police records. Id, at 317. We do not
presume that the wurts of this state will necessarily recognize exactly the same procedures
and standards for determining whether to grant inspection of juvenile court records to
persons with a “legitimate interest” under section 51.14(a), but we believe the procedures
and standards announced in Herget are consistent with the policies of Texas and therefore
are worthy of quotation at length as a helpfil suggestion:

So that the wurt may determine plaintiffs’ need for the
information requested, the plaintiffs must describe to the court as
specitkagy as possible.the type of information they seek, the basis of
their belief that the information is wntained in the police records, the
relevance of the information to plaintiffs’ cause of action, the
probable admissibility of the information as evidence at trial, the
efforts they have made to obtain the information from other sources,
and the hardship to plaintit& cause should the discovery order not
issue. The defendant should be given the opportunity to present to
the court its position wncerning disclosure of all or part of the
records.

The court must then make an in camera inspection of [the
child’s] police file.
If the court determines that certain information contained in [the
child’s] police file is essential to plaintiffs’ cause and cannot be
obtained with reasonable effort from other sources, the court must
then determine whether plaintit& need for that information
outweighs society’s interest in protecting its wnfIdentiality. In
making this determination the wurt must balance two private and
two societal interests: the victim’s interest in recovering for the
damage he has suffered and the juvenile’s interest in rehabilitation
and avoiding the stigma of revelation; the redress of private wrongs
through private litigation and the protection of the integrity of the
juvenile justice system.

If, a&r balancing these interests, the court determines that
certain information should be disclosed, the court must carefully
tailor its discovery order to permit disclosure of only that
information. The trial court shall make a record of the reasons for its

(footnotecontinued)
the . courtmust balanozthe need of the requestingpattyfor the rozordsagainstthe interestsof society
in keeping contidentialcertainjuvenile courtreconis. See Ex Porte State Farm Fire and Car. Co., 529
So.Zd975 (Ala. 1988).” 782 P.2d at 1339.

p. 1766
Honorable D. August Boto - Page 6 (DM-334)

determination to allow or not to allow discovety, and the record shall
be sealed.

Id. (footnotes omitted).3

The wnsensus of similar holdings in other states convinces us that a Texas wurt
would likely hold that in some circumstan ces the public policy in favor of the
wmpensation of property owners for damages resulting from vandalism may justify a
juvenile court’s determination that a victim of delinquent conduct or conduct indicating a
need for supervision is a “person . . . having a legitimate interest in the proceeding” under
subsection (a)(4) of section 5 1.14. Nothing in subsection (a)(4) limits the class of persons
who may have a “legitimate interest in the proceeding.” As this office said in Attorney
General Opinion H-264, the determination of whether a person has such an interest “rests
in the sound discretion ofthe juvenile wurt.” Attorney General Opinion H-264 (1974) at
2. Similarly, in Hi&y the Supreme Court of Nevada held that Nevada’s statutory
analogue to code section 51.14(a)(4) “clearly vests in the wmt wide discretion to
determine the persons ‘having a legitimate interest’ in juvenile court records.” 782 P.2d at
1339. Because the determination of “legitimate interest” would involve the weighing of
evidence and the exercise of judicial discretion, we would not be able to determine in an
advisory opinion whether a particular victim would succeed in a request for access under
section 51.14(a)(4).

Next you ask whether the phrase “open to inspection only by [the persons and
entities set forth in subsection (a)],” as used in subsection (a) of section 5 1.14. means that
juvenile files and records may only be inspected, as opposed to copied, or that only the
persons and entities set forth in subsection (a) may inspect juvenile files and records, or
both. Your question draws attention to the ambiguity that arises from the placement of
the word “only” between an adverbial phrase (“to inspection,” which modifies “open”) and
an adjectival phrase (“by [the persons and entities set forth in subsection (a)],” which
modifies “inspection”), both of which it might modify.

In written English the normally proper position of on& within a sentwce is usually
immediately before the word or phrase only modifies. See THEODOREM. BERNSTEIN,
THE CAREFULWm: A GUIDE To MODERNENGLISHUSAGE 3 15-17 (1965). If the
legislature intended to follow this rule, the meaning of subsection (a) is that only the
persons and entities set forth therein may inspect juvenile files and records, not that such
persons and entities may only inspect juvenile files and records.

3Thc wmt in Heat-r furthn ruled that police officers could not be deposed repding the
contents of their own recordsof the juvenile inmtigation at issue until the court panted disclosme of
their rcuwds, and then only regardingrheportionsthat wcrc rchsed for disclosure. 267 N.W.2d at 318.
To d&in@& bch+een the informationin the IUX@ &msclvcs and the otTice& own indepadent
recctlec6oasof that information,the court concluded,would violate the intent of the confidentiality
statute Id.

p. 1767
Honorable D. August Boto - Page 7 (DM-334)

This wnstruction of subsection (a) is consistent with prior law, which provided,
“Juvenile Court Records shall not be inspected by persons other than probation officers or
other officers of the Juvenile Court unless otherwise directed by the court.” V.T.C.S. art.
2338-l, $ I5 (1971) (repealed by Act ofMay 24, 1973,63d Leg., R.S., ch. 544, $3, 1973
Tex. Gen. Laws 1460, 1485). “[Wlith respect to juvenile court legal and social records,
the only material variation from the old law is to specify those persons who are deemed to
have a legitimate interest in the proceedings such that they should have access to those
records without special leave of the juvenile court.” Robert 0. Dawson, DeIinquenf
Children and Chitien in Need of Supervision: Drajkm ‘s Commentsto Title 3 of the
TexusFun@ Co&, 5 TFX. TECHL. REV. 533-34 (1974). We therefore conclude that the
word “only” in subsection (a) does not modify the phrase “‘to inspection.”

This conclusion does not end the inquiry into the meaning of subsection (a),
however, but rather leads us to your third question:

Jfthe foregoing question is answered in a way that specifies that the
word “only” limits the class of persons who may obtain access, does
the word “inspection” . mean that the paperwork can only be
looked at. or does it permit paperwork to be copied and certified for
proper purposes?

In this regard, it is important to consider that denial of access to inspect etfectively
wnstitutes denial of access to copy, for allowing access to a copy would thwart the
purpose of denying access to inspect the original. A statutory grant of access to inspect,
however, does not necessarily include permission to obtain a copy. Therefore, the
meaning of the provision depends on whether the provision gruxfs access to inspect or
resiricls access to inspect.

The legislature’s purpose in enacting section 51.14(a) and its statutory
predecessors was not to grcml access to inspect juvenile court files and records, for the
public generally has a common-law right to inspect and wpy court records. See Nixon v.
Warner Communications, 435 U.S. 589, 597-98 (1978); Times Herald Printing Co. v.
Jones, 717 S.W.2d 933, 936 (Tex. App.-Dallas 1986), vacated on other grounds per
curium, 730 S.W.Zd 648 (Tex. 1987); see also Attorney General Opinion DM-166 (1992)
at 3 (discussing common-law right of access to court records).4 Rather, the intention was

‘Ia 1990 Ihe SupremeCourtof Texas adoptedTexas Rule of Ciil Fmcedure76a, whichprovides
that court recordsother than adjudicativeordersand opinions,whichmaynot be seated,

ore presumed to be open to the general public and may be scaled only upon a
ahowingof all of the following:
(a) a specitic,sxious and substantialintereslwhich clearlyoutweighs:
(1) this presumptionof opmless;

p. 1768
Honorable D. August Boto - Page 8 (DM-334)

to resticr access to inspect, and concomitantly to copy, juvenile records. Therefore, to
the extent the provision leaves prior law undisturbed, its language does not address the
question of whether copying also is permitted. We conclude that the word “inspection”
does not indicate any legislative intent regarding whether records may only be inspected or
may also be copied.

We Mher believe, however, that subsection (a)(4) does potentially limit the mode
of access to records, although not for the reason that your third question suggests. As we
said above, one of the purposes of sections 51.13 and 51.14 is to protect a person 6om
the permanent stigma of an adjudication of delinquency insofar as such protection would
be “consistent with the protection of the public interest.” Fam. Code 8 51.01(3). The
e&ctuation of this purpose requires that a grant of access to records to a “person :
having a legitimate interest” under section 51.14(a)(4) should not include permission to
copy the records unless the public interest requires that the records be copied.

The public interest may require in some circumstances that a victim of delinquent
conduct or conduct indicating a need for supervision have u copy of a document in a
juvenile wurt 6le. Ifthe documwt contains information that, in the words of the court in
the Sfute Fame case, “is essential and not otherwise reasonably available in” a related civil
action between the victim and the juvenile, 529 So. 2d at 977, it may be within the juvenile
court’s discretion under section 51,14(a)(4) to issue a narrowly tailored order that permits
the release of a copy but limits the use of the copy to the related action. On the other
hand, if the information in the document also exists in another admissible record outside
the juvenile court file or is adducible by examination of an available witness, then the wurt
may be justified in concluding that the information is otherwise reasonably available and
therefore that a copy of the information is not necessary. (Of course, we are unable to
review the appropriateness of a court’s exercise of discretion under section 5 1.14(a)(4).)

We realize that our conclusion that the public interest sometimes may justify the
release of a copy of a record in a juvenile court file, in light of the facts you pose regarding
the stipulation of evidence, suggests that documentary evidence that has been adduced in a
juvenile court hearing may be admissible in a proceeding other than those expressly
permitted under code section 51.13(b): “subsequent proceedings under title [3] in
which the child is a party or . subsequent sentencing proceedings in criminal court

(footnotewntiual)
(2) any probableadvemzcffccIthat sealingwill have upon the 8cneml
publich&h or safa
(b) no less restrictive means than sealing mrds will adequatelyand
dktively protectthe s@fic interestasserted. IEmphasisadded.]

Paragraph 2 of rule 76a excepts !?om the definition of court records “donrmentstiled in an action
originallyarising under the Family C&e.” Paragraph9 providesin Carl,“Access10documentsin court
files not detiacd a3court read by this rule remainsgovernedby existinglaw.”

p. 1769
Honorable D. August Boto - Page 9 (DM-334)

against the child to the extent permitted by the Texas Code of Criminal Procedure, 1965.”
It is arguable, to the contrary, that section 51.13(b) bars the use of any evidence,
testimonial, documentary, or real, in any proceeding other than those excepted by the
statute if that evidence was offered in a juvenile court hearing.

Once again, we have found no Texas case in point, but our research has uncovered
a case from another state that bears directly on the meaning of statutory language that is
similar to the prohibition in section 51.13(b) against the use of “evidence adduced in a
[juvenile court] hearing.” Gallegos v. Coloru&, 358 P.2d 1028 (Colo. 1960), rev’d on
other grounds 370 U.S. 49 (1962), was a murder conviction appeal in which the Supreme
Court of Colorado dealt with the contention that a similar statute, prohibiting the use of
“any evidence given in any such fiuvenile court] case,“5 barred the use of certain evidence
for the reason that the same evidence had been offered in a juvenile delinquency
proceeding against the defendant. Id. at 1032. In that case the defendant challenged the
trial court’s admission into evidence of the prosecutor’s reading of portions of a
stenographically transcribed oral statement that the defendant had made while he was in
custody at a police station and that he had signed later, when be was taken to juvenile hall.
Id. at 1030. In the statement the defendant confessed that he had attacked and robbed the
decedent. Id. at 1031. The statement also included a written certification, above the
defendant’s signature, that the “statement is entirely true.” Id. Before the decedent died,
the defendant had been adjudicated delinquent for the robbery of the decedent “and [had
been] sentenced to the Industrial School.” Id. It was undisputed that the statement had
been offbred in evidence in the defendant’s delinquency proceeding in the juvenile wurt.
Id. at 1032.

The supreme court disagreed with defense counsel’s contention on appeal that the
reading of the statement into the record was barred by the Colorado statute merely
because the statement had “formed the basis of testimony considered in the juvenile
wurt.” Id. The supreme court explained its disagreement as follows:

Contrary to the contention of counsel we hold the statute to
mean that a transcript of the testimony given by any witness,
including the defendant, in a proceeding before the juvenile court
cannot be used in any manner in a subsequent action against the child

?he WWIquotedthe pertinentpart of the Coloradoetalute,Cola. Rev. Stat. 8 22-S-l(3) (1953).
as follows:

A dispositionof any child underthis article,or any evidence given in any
such case, shell not in any criminal or 0th~ cause or proceedingwhateverk
IawKdor proper evidence against such child for any purpose excepting in
subsequentcases againstthe child underthis article.

Gallegos v. Colorado, 358 P. 2d 1028.1032 (Cola. 1960).

p. 1770
Honorable D. August Boto - Page 10 (pg-334)

alleged to be a delinquent in the juvenile proceeding. Nor can any
evidence be admitted as to what a witness said in the juvenile court
hearing. There is nothing in the statute to prevent the district
attorney from establishing the same facts by the same witnesses and
by the same real and documentary evidence that may have been used
in the earlier proceeding in the juvenile court. It is only the evidence
as introduced at the hearing in the juvenile court which cannot be
used against said child in subsequent court proceedings. Ex parte
Walter, 92 OklCr. 1,221 P.2d 659.

The reasons for the statute are well stated in Commonwealth ex
rel. Hendrickson v. Myers, 393 Pa. 224, 144 A.2d 367, and in
Volume 3, Wigmore on Evidence, section 1040. As there stated,
these reasons are consistent with the interpretation we give the
statute and inconsistent with the contention of counsel for defendant.
It is not the purpose of the statute to foreclose from all tiuure
revelation the facts relating to conduct which formed the basis of a
prior delinquency proceeding in the juvenile wurt. When oral
testimony is offered for its intrinsic value with relation to the issue to
be tried--rather than to establish what was said or done in
proceedings before the juvenile court--the statute does not prevent’
the giving of testimony because the same witness was previously
called upon to give evidence relating to the same transaction in
juvenile court proceedings. For a comparable example involving the
federal rule which prevents disclosure of proceedings before a grand
jury, see United States v. Interstate Dress Carriers, Inc., 2 Cir., 280
F.2d 52.

Id. at 1032-33.

Although the Texas courts have not decided this question, we believe it is likely
that the courts would find the holding and reasoning of the Gallegos case to be
persuasive. We doubt that a court would read section 51.13(b) so broadly as to bar
evidence that is essential to a victim’s claim for civil damages merely because the same
evidence was offered in juvenile court. Such a broad construction would go beyond the
rehabilitative purpose of code title 3; it would tend to excuse a person from civil
accountability for injurious conduct. We believe the wurts would interpret section
5 1.13(b) as not prohibiting the use of juvenile-proceeding evidence in another case when
the evidence is directly relevant to a material issue in the case and the evidence is not
offered “‘to establish what was said or done in proceedings before the juvenile wurt.” Id.
at 1033.

Thus, a transcript of juvenile court testimony would be inadmissible because it
would show what was said in the juvenile wurt proceeding. Id. at 1032. But cfl Duniels

p. 1771
Honorable D. August Boto - Page 11 (DM-334)

v. National Fire Ins. Co., 394 So. 2d at 683 n.1 (quoting statute as providing that
“juvenile case records shall be confidential”), 684 (extract from juvenile court hearing
transcript would be admissible). Likewise, language or markings on documentary or real
evidence tending to show that the evidence had been adduced in a juvenile case would be
inadmissible. On the other hand, the recollection of a witness, or real or documentary
evidence that does not tend to show that a person was the subject of a juvenile court
proceeding, would not be barred merely because the witness had testified about the same
facts or the same real or documentary evidence had been offered in a juvenile case.,6 C$
iUis.wuri v. Owens, 582 S.W.M 366, 376 (MO. Ct. App. 1973) (citing Gallegos as
support for holding that Missouri statute precluding “all evidence given in [juvenile]
cases” from being used in subsequent criminal or other proceedings did not prevent
prosecutor from using witnesses in State’s case who had testified earlier at juvenile waiver
hearing on same subject matter).

Furthermore, it is not sufficient to its admissibility that the juvenile court record
wig not tend “to establish what was said or done in proceedings before the juvenile court,”
Gallegos v. Colorado, 358 Pld at 1033. In addition, the record must be offered as proof
of a relevant and material issue, that is, “for its intrinsic value with relation to the issue to
be tried,” id., and not solely for the purpose of impeaching the subject of the juvenile court
proceeding. Various Texas cases support this interpretation of the provision. For
example, in Hall v. State, 145 S.W.2d 579 (Tex. App.-Fort Worth 1988, pet. ref d), the
court concluded that section 5 1.13(b) did not prohibit the State’s cross-examination of a
witness in a trial for attempted murder regarding the fact of her release from reform school
earlier on the day of the shooting in question, where the evidence was relevant to material
issues, namely, the motive for the shooting and the underlying cause of the argument
leading up to the shooting. Id. at 586. The court warned, however, “that the admission of
a juvenile record or evidence of events occurring subsequent to a juvenile hearing would
be improper, if the State was attempting to use the evidence to try to impeach the
credibility of a juvenile witness.” Id. at 583; accordRobinson v. State, 7 S.W.Zd 571, 514
(Tex. Crim. App. 1928) (on motion for rehearing). The court in Rivas v. State noted that
“it has been held that a juvenile delinquency record may not be used for impeachment of a
witness because a provision of the Juvenile Act prohibits the introduction of such
evidence.*’ 501 S.W.Zd at 920 (citing Robinson v. State, 7 S.WSd 571, and Smith v.
State, 18 S.W.Zd 1070). Similarly, the court in Carmona v. State cited section 51.13 for
proposition that “[a] juvenile’s record is ordinarily inadmissible for impeachment
purposes.” 670 S.W.M at 698; cfl 3A JOHNH. WIGMORE,EVIDENCEIN ‘IkwLS AT
COMMON LAW 8 1040, at 1051-52 & n.11 (James H. Chadboum rev. 1970) (resuh of

‘5w.5reiterate,bowever,that a juveaile court may bwe discretionunder section ~1.14(aj@)to
deny a copy of evidenceadducedin a jovenile eoortproceeding-evenwhen the evktenceis rclcvantto a
material issue ia a r&ted civil action and would not be used to show what happmed in the jovenile
eoutt-if widena of the same Wts is adduciblein the relatedcivil action throughthe testimonyof an
availablewitness or is otherwisereasonablyavailable. See Slate Form,529 So. 2d at 977.

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Honorable D. August Boto - Page 12 0X4-334)

usual combination in various states’ juvenile court statutes of language forbidding use of
juvenile court conviction in other proceedings with language forbidding use of “any
evidence” given in juvenile court in other proceedings is “to forbid the discrediting of the
party’s testimony in any later proceeding by comparing it with the same person’s
testimony in the juvenile wurt”); see also Tex. R. Civ. Evid. 609 (“[e]vidence of juvenile
adjudications is not admissible” to impeach a witness’s credibility). But see Dcrvis v.
A&da, 415 U.S. 319, 317-18 (1974) (crimhtal defendant has constitutional right, under
Confrontation Clause of Sixth Amendment, to attempt to show bias of witness based on
evidence that witness was on probation following adjudication of delinquency,
notwithstandiig state statute prohibiting use of juvenile court evidence in other court
proceedmgs).

Finally, you ask whether “there is a vehicle which would permit the Juvenile Court
to Jimit the use of [court file] documents for a specific purpose so as to address the right
of both parties, at least to a limited degree.” You do not suggest the “vehicle” that you
wish us to consider. We believe, however, that section 51.14(a)(4), in granting the
juvenile court discretionary control over the granting of leave to inspect documents,
implicitly authorizes that court to impose limitations on such leave that will be consistent
with the purposes of code title 3.7 We also note that Texas Rule of Civil Procedure 76a
may provide a vehicle for obtaining an order to seal the evidence in the separate civil
proceedmg.

SUMMARY

In some circumstances the public policy in favor of
compensating property owners for the malicious destruction of their
property may justi@ a juvenile court’s determination that a victim of
vandalism seeking access to court files and records under section
5 1,14(a)(4) of the Pamily Code for use in a civil action for damages
caused by the vandalism is a “person having a legitimate interest”
in a proceeding adjudicating a child to have engaged in delinquent
conduct or conduct indicating a need for supervision.

7The court in Hi&y v. Eighfh Judicial Disfricf Courf, 782 P.2d 1336, noted with approval
certainlimitationsin the juvenile court’sordergrantingthe quest for inspection: (1) a speciticationthat
the districtjudge presiding over the negligence suit would have to review the juvenile court recordsin
camerasod detennine which ones were relevantto the lawsuit, (2) a provisionthat the recordswould be
wed only in the districtcorn prweeding, and (3) a reservationof subsequentdecision on the pan of the
districtwurf woceming the extantto which the materialwould be allowedto becomea partof the record.
Id. at 1337, 1339. The court mncladed in light of these conditions that “the flower] court anteredan
ordertbatwas narrowlytatlond (0 safeguardsociety’s interestsin the cwtidcntiality of Chris’juvcaile
muwds, while preserving[the administrator’s]rightto access informationthat is relevantto hex cause of
actionbelow.” Id. at 1339.

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Honorable D. August Boto - Page 13 (DM-334)

The provision in section 5 1.14(a) that the “files and records of a
juvenile court . . . are open to inspection only by [the persons and
entities set forth in subsection (a)l” means that only those persons
and entities may inspect juvenile files and records, not that those
persons and entities may only inspect juvenile files and records. A
grant of access to records under section 51.14(a)(4) does not include
permission to copy the records unless the public interest requires that
the requestor have copies.

DAN MORALES
Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by James B. Pinson
Assistant Attorney General

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