| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the automatic expunction of criminal records. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Article 55.01(a), Code of Criminal Procedure, is |
|
|
amended to read as follows: |
|
|
(a) A person who has been placed under a custodial or |
|
|
noncustodial arrest for commission of either a felony or |
|
|
misdemeanor is entitled to have all records and files relating to |
|
|
the arrest expunged if: |
|
|
(1) the person is tried for the offense for which the |
|
|
person was arrested and is: |
|
|
(A) acquitted by the trial court, except as |
|
|
provided by Subsection (c) [of this section]; or |
|
|
(B) convicted and subsequently pardoned; or |
|
|
(2) either [each] of the following conditions exists |
|
|
[exist]: |
|
|
(A) an indictment, complaint, or information |
|
|
charging the person with commission of an offense [a felony] has not |
|
|
been presented against the person for an offense arising out of the |
|
|
transaction for which the person was arrested before the second |
|
|
anniversary of the date of the arrest; or |
|
|
(B) [,] if an indictment, complaint, or |
|
|
information charging the person with commission of an offense [a
|
|
|
felony] was presented, the indictment, complaint, or information |
|
|
has been dismissed or quashed [, and:
|
|
|
[(i)
the limitations period expired before
|
|
|
the date on which a petition for expunction was filed under Article
|
|
|
55.02; or
|
|
|
[(ii)
the court finds that the indictment
|
|
|
or information was dismissed or quashed because the presentment had
|
|
|
been made because of mistake, false information, or other similar
|
|
|
reason indicating absence of probable cause at the time of the
|
|
|
dismissal to believe the person committed the offense or because it
|
|
|
was void;
|
|
|
[(B)
the person has been released and the charge,
|
|
|
if any, has not resulted in a final conviction and is no longer
|
|
|
pending and there was no court ordered community supervision under
|
|
|
Article 42.12 for any offense other than a Class C misdemeanor; and
|
|
|
[(C)
the person has not been convicted of a
|
|
|
felony in the five years preceding the date of the arrest]. |
|
|
SECTION 2. Section 1, Article 55.02, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
Sec. 1. (a) The [At the request of the defendant and after
|
|
|
notice to the state, the] trial court [presiding over the case in
|
|
|
which the defendant was acquitted, if the trial court is a district
|
|
|
court, or a district court in the county in which the trial court is
|
|
|
located] shall enter an order of expunction for a person entitled to |
|
|
expunction because: |
|
|
(1) the person was acquitted; |
|
|
(2) the person was pardoned; or |
|
|
(3) the offense was dismissed [under Article
|
|
|
55.01(a)(1)(A) not later than the 30th day after the date of the
|
|
|
acquittal. Upon acquittal, the trial court shall advise the
|
|
|
defendant of the right to expunction. The defendant shall provide
|
|
|
to the district court all of the information required in a petition
|
|
|
for expunction under Section 2(b). The attorney for the defendant
|
|
|
in the case in which the defendant was acquitted, if the defendant
|
|
|
was represented by counsel, or the attorney for the state, if the
|
|
|
defendant was not represented by counsel, shall prepare the order
|
|
|
for the court's signature]. |
|
|
(b) The attorney representing the state whose office would |
|
|
have prosecuted the offense shall bring a motion for expunction for |
|
|
a person who was arrested but against whom an indictment, |
|
|
complaint, or information is not filed before the second |
|
|
anniversary of the date of arrest. |
|
|
(c) The court shall enter an order of expunction under this |
|
|
section not later than the 30th day after the date of acquittal, |
|
|
pardon, dismissal, or filing of the motion by the attorney |
|
|
representing the state. The court shall include in the order a |
|
|
listing of each official, agency, or other entity of this state or |
|
|
political subdivision of this state and each private entity that |
|
|
there is reason to believe has any record or file that is subject to |
|
|
the order. |
|
|
SECTION 3. Section 2a, Article 55.02, Code of Criminal |
|
|
Procedure, is amended by adding Subsection (e) to read as follows: |
|
|
(e) The director of the Department of Public Safety or the |
|
|
director's authorized representative may file on behalf of a person |
|
|
under this section the application described by Subsection (a). |
|
|
The application must be verified and must include all of the |
|
|
information otherwise required of an application under this |
|
|
section, including the information described by Subsections (c)(1) |
|
|
and (3). The director of the Department of Public Safety or the |
|
|
director's authorized representative shall forward a copy of the |
|
|
application to the district court for the county in which the |
|
|
person resides and shall request the court to enter an order |
|
|
directing expunction based on an entitlement to expunction under |
|
|
Article 55.01(d). On receipt of a request under this subsection, |
|
|
the court shall, without holding a hearing on the matter, enter a |
|
|
final order directing expunction. |
|
|
SECTION 4. Sections 3(a), (c), and (d), Article 55.02, Code |
|
|
of Criminal Procedure, are amended to read as follows: |
|
|
(a) In an order of expunction issued under this article, the |
|
|
court shall require any state agency that sent information |
|
|
concerning the arrest to a central federal depository to request |
|
|
the depository to return all records and files subject to the order |
|
|
of expunction. A [The] person who is the subject of an [the] |
|
|
expunction order under Section 2a, or an agency protesting the |
|
|
expunction, may appeal the court's decision in the same manner as in |
|
|
other civil cases. |
|
|
(c) When the order of expunction is final, the clerk of the |
|
|
court shall send a certified copy of the order to the Crime Records |
|
|
Service of the Department of Public Safety and to each official or |
|
|
agency or other governmental entity of this state or of any |
|
|
political subdivision of this state named in [designated by the
|
|
|
person who is the subject of] the order. The certified copy of the |
|
|
order must be sent by secure electronic mail, electronic |
|
|
transmission, or facsimile transmission or otherwise by certified |
|
|
mail, return receipt requested. In sending the order to a |
|
|
governmental entity named in the order [designated by the person], |
|
|
the clerk may elect to substitute hand delivery for certified mail |
|
|
under this subsection, but the clerk must receive a receipt for that |
|
|
hand-delivered order. |
|
|
(d) Any returned receipts received by the clerk from |
|
|
[notices of the hearing and] copies of the order shall be maintained |
|
|
in the file on the proceedings under this chapter. |
|
|
SECTION 5. Section 4, Article 55.02, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
Sec. 4. (a) If the state establishes that the person who is |
|
|
the subject of an expunction order is still subject to conviction |
|
|
for an offense arising out of the transaction for which the person |
|
|
was arrested because the statute of limitations has not run and |
|
|
there is reasonable cause to believe that the state may proceed |
|
|
against the person for the offense, the court may provide in its |
|
|
order that the law enforcement agency and the prosecuting attorney |
|
|
responsible for investigating the offense may retain any records |
|
|
and files that are necessary to the investigation. |
|
|
(b) In the case of a person who is the subject of an |
|
|
expunction order on the basis of an acquittal, the court may provide |
|
|
in the expunction order that the law enforcement agency and the |
|
|
prosecuting attorney retain records and files if: |
|
|
(1) the records and files are necessary to conduct a |
|
|
subsequent investigation and prosecution of a person other than the |
|
|
person who is the subject of the expunction order; or |
|
|
(2) the state establishes that the records and files |
|
|
are necessary for use in: |
|
|
(A) another criminal case, including a |
|
|
prosecution, motion to adjudicate or revoke community supervision, |
|
|
parole revocation hearing, mandatory supervision revocation |
|
|
hearing, punishment hearing, or bond hearing; or |
|
|
(B) a civil case, including a civil suit or suit |
|
|
for possession of or access to a child. |
|
|
(c) [(b)] Unless the person who is the subject of the |
|
|
expunction order is again arrested for or charged with an offense |
|
|
arising out of the transaction for which the person was arrested or |
|
|
unless the court provides for the retention of records and files |
|
|
under Subsection (b), [(a) of this section, the provisions of] |
|
|
Articles 55.03 and 55.04 [of this code] apply to files and records |
|
|
retained under this section. |
|
|
SECTION 6. Section 5(c), Article 55.02, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(c) Except in the case of a person who is the subject of an |
|
|
expunction order based on an entitlement under Article 55.01(d) and |
|
|
except as provided by Subsection (g), if an order of expunction is |
|
|
issued under this article, the court records concerning expunction |
|
|
proceedings are not open for inspection by anyone except the person |
|
|
who is the subject of the order unless the order permits retention |
|
|
of a record under Section 4(a) [4 of this article] and the person is |
|
|
again arrested for or charged with an offense arising out of the |
|
|
transaction for which the person was arrested or unless the court |
|
|
provides for the retention of records and files under Section 4(b) |
|
|
[4(a) of this article]. The clerk of the court issuing the order |
|
|
shall obliterate all public references to the proceeding and |
|
|
maintain the files or other records in an area not open to |
|
|
inspection. |
|
|
SECTION 7. The following provisions of the Code of Criminal |
|
|
Procedure are repealed: |
|
|
(1) Subsection (a-1), Article 55.01; |
|
|
(2) Section 2, Article 55.02; |
|
|
(3) Article 55.05; and |
|
|
(4) Article 102.006. |
|
|
SECTION 8. (a) This Act applies only to the expunction of |
|
|
arrest records related to: |
|
|
(1) a criminal offense for which an acquittal occurred |
|
|
on or after the effective date of this Act; |
|
|
(2) a charge for an offense that was dismissed on or |
|
|
after the effective date of this Act; or |
|
|
(3) an arrest made on or after the effective date of |
|
|
this Act. |
|
|
(b) Expunction for an acquittal, dismissal, or arrest that |
|
|
occurred before the effective date of this Act is governed by the |
|
|
law in effect at that time, and the former law is continued in |
|
|
effect for that purpose. |
|
|
SECTION 9. This Act takes effect September 1, 2009. |