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F I S C A L I M P A C T R E P O R T

SPONSOR Swisstack

ORIGINAL DATE

LAST UPDATED

2/13/2007

HB 515

SHORT TITLE Delinquency Petition Record Requirements

SB

ANALYST Lucero

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to HB32, HB449.

Relates to Appropriation in the General Appropriation Act

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Children, Youth and Families Department (CYFD)

Administrative Office of the Courts (AOC)

Juvenile Parole Board (JPB)

SUMMARY

Synopsis of Bill

House Bill 515 amends Section 32A-2-26NMSA 1978 – Sealing of records to include the ability

of a person subject to a delinquency petition to request the court order the legal and social files

and records of the court, the department

, probation services and any other agency in the case

sealed. Significant amendments relate to the courts ability to order sealing of records if the court

finds that: A. (1) the child has reached the age of majority

and two years have elapsed since the

final release of the person from legal custody and supervision; and the person has not, within the

two years immediately prior to filing the motion, been convicted of a felony or of a misdemeanor

involving [moral turpitude

] driving under the influence of intoxicating liquor or drugs

or been

found delinquent by a court and no proceeding is pending seeking such a conviction or finding.

House Bill 515 – Page

2

B. (4) (5) The bill further identifies additional agencies (the local detention facility and

the public defender department

) as agencies to receive notice of the motion to seal.

C. Upon the entry of the sealing order, agencies that maintain such records shall ensure

that all personal identifying information in the

index or electronic

references shall be deleted.

The bill indicates that copies of the sealing order shall be sent by the petitioner

to each agency or

official named in the order. Copies of the sealing order shall also be available in the district

court clerk’s office.

G. A person who is not the subject of a delinquency petition or a person who is deter-

mined by the court not to be a delinquent offender shall have [his

] the person’s

files and records

automatically sealed by the court no later than six months after the person reaches the age of ma-

jority

.

H.

per the bill, this section of the Children’s Code would be deleted; [I

f two years have

elapsed since a person was released from legal custody and supervision and the d

e-

partment has not received any new allegations of delinquency regarding the person,

that person’s files and r

e

cords shall be automatically sealed

]

Essentially, the bill puts an age (eighteen) as the minimum age for a person to request sealing of

his/her juvenile record.

FISCAL IMPLICATIONS

There could be a need for additional resources for the courts to conduct research relating to the

six-month deadline before automatically sealing cases. The judiciary’s data system does not dis-

tinguish cases based on whether there is a determination of delinquency. This situation led to the

November 2006 adoption of a rule by the Supreme Court requiring the children’s court attorney

or department to notify the court when a case must be sealed. Using this mechanism to imple-

ment Subsection G, any costs to the court are minimized.

Although the bill does not make an appropriation, it could have indirect fiscal impact on CYFD.

The bill would likely decrease costs to the department by reducing the time and labor required to

seal and archive cases on person’s under the age of eighteen.

SIGNIFICANT ISSUES

The bill provides language that clarifies and details the process for sealing of juvenile records.

By placing an age (eighteen) as the minimum age required to request sealing of records, it allows

the department to process sealing of records in a more efficient, equitable manner and addresses

concerns of public safety. Current language allows for a person to request sealing of his/her ju-

venile record at any age provided two years has elapsed since release from custody and supervi-

sion of the department. An example of a public safety concern related to the current language is

that a fourteen year old could be adjudicated of an armed robbery, complete a one year probation

term and then request his/her record be sealed at age seventeen. The department and the court

would not have access to this person’s delinquent history if this person were to commit a new

delinquent act at age seventeen. Department staff safety and public safety is compromised, as is

the ability of the court to make an informed decision related to the new delinquent act.

Subsection C’s proposal to delete all personal identifying information, both paper and electronic,

in the case conflicts with Subsections D and E, which permit the court to reopen files and records

House Bill 515 – Page

3

in certain situations, such as a new finding of delinquency or a conviction. With the destruction

of all personal identifying information, it would be impossible to locate the case. In addition, if

the bill intends to protect the identity of the youth, then making a copy of the sealing order avail-

able to the public in the clerk’s office may reveal the very information that is being sought to

protect.

Regarding Subsection G, the Supreme Court in November 2006 promulgated a rule for automatic

sealing of court records. The rule requires the children’s court attorney to present the court with

an order to seal files and records when the petition does not result in an adjudication of delin-

quency, but is dismissed, acquitted, etc. The rule also requires CYFD to present the court with

an order seal records and files when a person has been released from court-ordered supervision

and no new allegations of delinquency have been received in the past two years. The court clerk

is required to provide copies of the court’s order to the children’s court attorney, CYFD, law en-

forcement offices, any other agency having records or files in the case, the person’s attorney, and

the person who is the subject of the sealing order.

The rule does not address sealing records for the person who is not the subject of a delinquency

petition, because that case is never filed in court and is handled informally by probation services.

The department should determine how to seal its files and records in such cases.

The bill’s proposed “six months after the age of maturity" deadline would require court staff to

conduct manual research on each case to determine when to automatically seal files and records.

It is also unlikely that the six-month deadline would be met in the case of a person detained for

an alleged crime committed on the day before the 18th birthday. Police investigations and other

processes in the case could delay the court’s being able to adjudicate the case and seal records

within the 6-month time frame.

ADMINISTRATIVE IMPLICATIONS

There may be an administrative impact on the courts as the result of the implementing new re-

quirements in the bill.

CYFD will need to add resources to address the automatic sealing of juvenile records that meet

criteria under 32A-2-26 Section 1 (H). The department’s current electronic system for sealing

records is inadequate to meet this requirement of the Children’s Code as the system is not de-

signed to seal records on persons under the age of eighteen. Public safety is also a concern and

potential consequence of not enacting this bill as delinquent history on many juveniles would not

be accessible to the department and the courts.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Relates to HB32, HB449

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Status Quo

DL/yr