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A BILL TO BE ENTITLED
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AN ACT
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relating to the eligibility of certain criminal defendants for an |
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order of nondisclosure of criminal history record information; |
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authorizing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 42.01, Code of Criminal Procedure, is |
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amended by adding Section 16 to read as follows: |
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Sec. 16. In addition to the information described by |
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Section 1, the judgment must reflect affirmative findings entered |
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pursuant to Article 42A.059. |
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SECTION 2. Subchapter B, Chapter 42A, Code of Criminal |
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Procedure, is amended by adding Article 42A.059 to read as follows: |
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Art. 42A.059. AFFIRMATIVE FINDING REGARDING AUTOMATIC |
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ORDER OF NONDISCLOSURE. If a judge places on community supervision |
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a defendant charged with a misdemeanor other than a misdemeanor |
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under Section 106.041, Alcoholic Beverage Code, or Section 49.04, |
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49.05, 49.06, or 49.065, Penal Code, the judge shall make an |
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affirmative finding of fact and file a statement of that |
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affirmative finding in the judgment in the case if the judge |
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determines that it is not in the best interest of justice that the |
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defendant receive an automatic order of nondisclosure under Section |
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411.07299, Government Code. |
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SECTION 3. Article 42A.105(f), Code of Criminal Procedure, |
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is amended to read as follows: |
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(f) If a judge places on deferred adjudication community |
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supervision a defendant charged with a misdemeanor other than a |
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misdemeanor under Section 49.04 or 49.06 [Chapter 20, 21, 22, 25, |
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42, 43, 46, or 71], Penal Code, the judge shall make an affirmative |
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finding of fact and file a statement of that affirmative finding |
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with the papers in the case if the judge determines that it is not in |
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the best interest of justice that the defendant receive an |
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automatic order of nondisclosure under Section 411.072, Government |
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Code. |
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SECTION 4. Section 411.0716, Government Code, is amended by |
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amending Subsection (a) and adding Subsection (c) to read as |
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follows: |
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(a) Except as otherwise provided by this section |
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[Subsection (b)], this subchapter applies to the issuance of an |
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order of nondisclosure of criminal history record information for |
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an offense committed before, on, or after September 1, 2017. |
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(c) Section 411.07299 applies only to a person described by |
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Subsection (a) of that section who was placed on community |
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supervision under Chapter 42A, Code of Criminal Procedure, on or |
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after September 1, 2021. |
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SECTION 5. The heading to Section 411.072, Government Code, |
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is amended to read as follows: |
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Sec. 411.072. AUTOMATIC ORDER OF NONDISCLOSURE FOLLOWING |
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COMPLETION OF [PROCEDURE FOR] DEFERRED ADJUDICATION COMMUNITY |
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SUPERVISION; CERTAIN [NONVIOLENT] MISDEMEANORS. |
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SECTION 6. Section 411.072(a), Government Code, is amended |
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to read as follows: |
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(a) This section applies only to a person who: |
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(1) was placed on deferred adjudication community |
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supervision under Subchapter C, Chapter 42A, Code of Criminal |
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Procedure, for a misdemeanor other than a misdemeanor: |
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(A) under[: |
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[(i)] Section 49.04 or 49.06, Penal Code; |
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or |
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[(ii) Chapter 20, 21, 22, 25, 42, 43, 46, or |
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71, Penal Code; or] |
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(B) with respect to which an affirmative finding |
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under Article 42A.105(f), Code of Criminal Procedure, or former |
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Section 5(k), Article 42.12, Code of Criminal Procedure, was filed |
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in the papers of the case; and |
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(2) has never been previously convicted of or placed |
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on deferred adjudication community supervision for another offense |
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other than a traffic offense that is punishable by fine only. |
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SECTION 7. Subchapter E-1, Chapter 411, Government Code, is |
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amended by adding Section 411.07299 to read as follows: |
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Sec. 411.07299. AUTOMATIC ORDER OF NONDISCLOSURE FOLLOWING |
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COMPLETION OF COMMUNITY SUPERVISION; CERTAIN MISDEMEANORS. (a) |
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This section applies only to a person who: |
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(1) was placed on community supervision under Chapter |
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42A, Code of Criminal Procedure: |
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(A) following a conviction of a misdemeanor other |
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than a misdemeanor: |
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(i) under Section 106.041, Alcoholic |
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Beverage Code, or Section 49.04, 49.05, 49.06, or 49.065, Penal |
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Code; or |
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(ii) with respect to which an affirmative |
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finding under Article 42A.059, Code of Criminal Procedure, was |
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filed in the judgment in the case; and |
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(B) under a provision of Chapter 42A, Code of |
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Criminal Procedure, other than Subchapter C, including: |
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(i) a provision that requires the person to |
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serve a term of confinement as a condition of community |
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supervision; or |
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(ii) another provision that authorizes |
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placing a person on community supervision after the person has |
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served part of a term of confinement imposed for the offense; and |
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(2) has never been previously convicted of or placed |
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on deferred adjudication community supervision for another offense |
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other than a traffic offense that is punishable by fine only. |
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(b) Notwithstanding any other provision of this subchapter |
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or Subchapter F, if a person described by Subsection (a) completes |
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the period of community supervision, including any term of |
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confinement imposed and payment of all fines, costs, and |
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restitution imposed, and satisfies the requirements of Section |
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411.074 and if the person's community supervision is not revoked, |
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the court that placed the person on community supervision shall |
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issue an order of nondisclosure of criminal history record |
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information under this subchapter prohibiting criminal justice |
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agencies from disclosing to the public criminal history record |
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information related to the offense giving rise to the community |
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supervision. The court shall determine whether the person |
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satisfies the requirements of Section 411.074, and if the court |
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makes a finding that the requirements of that section are |
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satisfied, the court shall issue the order of nondisclosure of |
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criminal history record information: |
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(1) on the successful completion of the community |
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supervision, if the person completes the period of community |
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supervision on or after the 180th day after the date the court |
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placed the person on community supervision; or |
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(2) as soon as practicable on or after the 180th day |
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after the date the court placed the person on community |
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supervision, if the person completed the period of community |
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supervision before that date. |
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(c) The person shall present to the court any evidence |
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necessary to establish that the person is eligible to receive an |
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order of nondisclosure of criminal history record information under |
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this section. The person must pay a $28 fee to the clerk of the |
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court before the court issues the order. |
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(d) A person who is not eligible to receive an order of |
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nondisclosure of criminal history record information under this |
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section solely because an affirmative finding under Article |
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42A.059, Code of Criminal Procedure, was filed in the judgment in |
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the case may file a petition for an order of nondisclosure of |
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criminal history record information under Section 411.073 if the |
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person otherwise satisfies the requirements of that section. |
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SECTION 8. Section 411.073, Government Code, is amended to |
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read as follows: |
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Sec. 411.073. PROCEDURE FOR COMMUNITY SUPERVISION |
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FOLLOWING CONVICTION; CERTAIN MISDEMEANORS AND FELONIES. |
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(a) This section applies only to a person placed on community |
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supervision under Chapter 42A, Code of Criminal Procedure: |
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(1) following a conviction of an offense [a |
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|
misdemeanor] other than an offense [a misdemeanor] under Section |
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106.041, Alcoholic Beverage Code, or Section 49.04, 49.045, 49.05, |
|
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49.06, [or] 49.065, 49.07, or 49.08, Penal Code[, or Chapter 71, |
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Penal Code]; and |
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(2) under a provision of Chapter 42A, Code of Criminal |
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Procedure, other than Subchapter C, including: |
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(A) a provision that requires the person to serve |
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a term of confinement as a condition of community supervision; or |
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|
(B) another provision that authorizes placing a |
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person on community supervision after the person has served part of |
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|
a term of confinement imposed for the offense. |
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(b) Notwithstanding any other provision of this subchapter |
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or Subchapter F, a person described by Subsection (a) whose |
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community supervision is not revoked and who completes the period |
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of community supervision, including any term of confinement imposed |
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and payment of all fines, costs, and restitution imposed, may |
|
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petition the court that placed the person on community supervision |
|
|
for an order of nondisclosure of criminal history record |
|
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information under this section if the person[: |
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[(1)] satisfies the requirements of this section and |
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|
Section 411.074[; and |
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[(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
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other than a traffic offense that is punishable by fine only]. |
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(c) Except as provided by Subsection (c-1) and subject to |
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Subsection (c-2), after [After] notice to the state, an opportunity |
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for a hearing, and a determination that the person is entitled to |
|
|
file the petition and issuance of the order is in the best interest |
|
|
of justice, the court shall issue an order prohibiting criminal |
|
|
justice agencies from disclosing to the public criminal history |
|
|
record information related to the offense giving rise to the |
|
|
community supervision. |
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(c-1) A court may not issue an order of nondisclosure of |
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criminal history record information under this section without the |
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consent of the attorney representing the state if the offense for |
|
|
which the order is sought is a felony of the third degree or any |
|
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higher category of offense. |
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(c-2) A person is not eligible to receive an order of |
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|
nondisclosure of criminal history record information under this |
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section with respect to a misdemeanor if the person has previously |
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received six orders of nondisclosure for a misdemeanor under this |
|
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section or Section 411.0735. A person is not eligible to receive an |
|
|
order of nondisclosure of criminal history record information under |
|
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this section with respect to a felony if the person has previously |
|
|
received two orders of nondisclosure for a felony under this |
|
|
section or Section 411.0735. |
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(d) A person may petition the court that placed the person |
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|
on community supervision for an order of nondisclosure of criminal |
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history record information under this section only on or after: |
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|
(1) the completion of the community supervision, if |
|
|
the offense for which the person was placed on community |
|
|
supervision was a misdemeanor other than a misdemeanor described by |
|
|
Subdivision (2); [or] |
|
|
(2) the second anniversary of the date of completion |
|
|
of the community supervision, if the offense for which the person |
|
|
was placed on community supervision was a misdemeanor under Chapter |
|
|
20, 21, 22, 25, 42, 43, or 46, Penal Code; |
|
|
(3) the sixth anniversary of the date of completion of |
|
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the community supervision, if the offense for which the person was |
|
|
placed on community supervision was a state jail felony; |
|
|
(4) the eighth anniversary of the date of completion |
|
|
of the community supervision, if the offense for which the person |
|
|
was placed on community supervision was a felony of the third |
|
|
degree; |
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(5) the ninth anniversary of the date of completion of |
|
|
the community supervision, if the offense for which the person was |
|
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placed on community supervision was a felony of the second degree; |
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|
or |
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(6) the 10th anniversary of the date of completion of |
|
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the community supervision, if the offense for which the person was |
|
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placed on community supervision was a felony of the first degree. |
|
|
SECTION 9. Section 411.0735, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.0735. PROCEDURE FOR CONVICTION; CERTAIN |
|
|
MISDEMEANORS AND FELONIES. (a) This section applies only to a |
|
|
person who: |
|
|
(1) is convicted of an offense [a misdemeanor] other |
|
|
than an offense [a misdemeanor] under Section 106.041, Alcoholic |
|
|
Beverage Code, or Section 49.04, 49.045, 49.05, 49.06, [or] 49.065, |
|
|
49.07, or 49.08, Penal Code[, or Chapter 71, Penal Code]; and |
|
|
(2) is not eligible for an order of nondisclosure of |
|
|
criminal history record information under Section 411.073. |
|
|
(b) Notwithstanding any other provision of this subchapter |
|
|
or Subchapter F, a person described by Subsection (a) who completes |
|
|
the person's sentence, including any term of confinement imposed |
|
|
and payment of all fines, costs, and restitution imposed, may |
|
|
petition the court that imposed the sentence for an order of |
|
|
nondisclosure of criminal history record information under this |
|
|
section if the person[: |
|
|
[(1)] satisfies the requirements of this section and |
|
|
Section 411.074[; and |
|
|
[(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
|
|
other than a traffic offense that is punishable by fine only]. |
|
|
(c) Except as provided by Subsection (c-1) and subject to |
|
|
Subsection (c-2), after notice to the state, an opportunity for a |
|
|
hearing, and a determination that the person is entitled to file the |
|
|
petition and issuance of the order is in the best interest of |
|
|
justice, the court shall issue an order prohibiting criminal |
|
|
justice agencies from disclosing to the public criminal history |
|
|
record information related to the offense for which the person was |
|
|
convicted. |
|
|
(c-1) A court may not issue an order of nondisclosure of |
|
|
criminal history record information under this section without the |
|
|
consent of the attorney representing the state if the [court |
|
|
determines that the] offense for which the order is sought is a |
|
|
felony of the third degree or any higher category of offense[, other |
|
|
than an offense under Section 22.01, Penal Code, was violent or |
|
|
sexual in nature]. |
|
|
(c-2) A person is not eligible to receive an order of |
|
|
nondisclosure of criminal history record information under this |
|
|
section with respect to a misdemeanor if the person has previously |
|
|
received six orders of nondisclosure for a misdemeanor under this |
|
|
section or Section 411.073. A person is not eligible to receive an |
|
|
order of nondisclosure of criminal history record information under |
|
|
this section with respect to a felony if the person has previously |
|
|
received two orders of nondisclosure for a felony under this |
|
|
section or Section 411.073. |
|
|
(d) A person may petition the court that imposed the |
|
|
sentence for an order of nondisclosure of criminal history record |
|
|
information under this section only on or after: |
|
|
(1) the date of completion of the person's sentence, if |
|
|
the offense of which the person was convicted was a misdemeanor |
|
|
punishable by fine only; [or] |
|
|
(2) the second anniversary of the date of completion |
|
|
of the person's sentence, if the offense of which the person was |
|
|
convicted was a misdemeanor other than a misdemeanor described by |
|
|
Subdivision (1); |
|
|
(3) the eighth anniversary of the date of completion |
|
|
of the person's sentence, if the offense of which the person was |
|
|
convicted was a state jail felony; |
|
|
(4) the 10th anniversary of the date of completion of |
|
|
the person's sentence, if the offense of which the person was |
|
|
convicted was a felony of the third degree; |
|
|
(5) the 11th anniversary of the date of completion of |
|
|
the person's sentence, if the offense of which the person was |
|
|
convicted was a felony of the second degree; or |
|
|
(6) the 12th anniversary of the date of completion of |
|
|
the person's sentence, if the offense of which the person was |
|
|
convicted was a felony of the first degree. |
|
|
SECTION 10. Section 411.074(b), Government Code, is amended |
|
|
to read as follows: |
|
|
(b) A person may not be granted an order of nondisclosure of |
|
|
criminal history record information under this subchapter and is |
|
|
not entitled to petition the court for an order of nondisclosure |
|
|
under this subchapter if[: |
|
|
[(1)] the person requests the order of nondisclosure |
|
|
for, or the person has been previously convicted of or placed on |
|
|
deferred adjudication community supervision for: |
|
|
(1) [(A)] an offense requiring registration as a sex |
|
|
offender under Chapter 62, Code of Criminal Procedure; |
|
|
(2) [(B)] an offense under Section 20.04, Penal Code, |
|
|
regardless of whether the offense is a reportable conviction or |
|
|
adjudication for purposes of Chapter 62, Code of Criminal |
|
|
Procedure; or |
|
|
(3) [(C)] an offense under Section 19.02, 19.03, |
|
|
20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal |
|
|
Code[; or |
|
|
[(D) any other offense involving family |
|
|
violence, as defined by Section 71.004, Family Code; or |
|
|
[(2) the court makes an affirmative finding that the |
|
|
offense for which the order of nondisclosure is requested involved |
|
|
family violence, as defined by Section 71.004, Family Code]. |
|
|
SECTION 11. Notwithstanding Section 411.0716(b), |
|
|
Government Code, the change in law made by this Act to Section |
|
|
411.072, Government Code, applies only to a person described by |
|
|
Subsection (a) of that section who was placed on deferred |
|
|
adjudication community supervision under Subchapter C, Chapter |
|
|
42A, Code of Criminal Procedure, on or after the effective date of |
|
|
this Act. A person who was placed on deferred adjudication |
|
|
community supervision before the effective date of this Act is |
|
|
governed by the law in effect on the date the person was placed on |
|
|
deferred adjudication community supervision, and the former law is |
|
|
continued in effect for that purpose. |
|
|
SECTION 12. This Act takes effect September 1, 2021. |