By:  Horn                                              H.B. No. 340
       73R502 CLG-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the automatic expunction of criminal records.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Articles 55.01, 55.02, and 55.03, Code of
    1-5  Criminal Procedure, are amended to read as follows:
    1-6        Art. 55.01.  Right To Expunction.  A person who has been
    1-7  arrested for commission of either a felony or misdemeanor is
    1-8  entitled to have all records and files relating to the arrest
    1-9  expunged if <each of the following conditions exist>:
   1-10              (1)  an indictment, complaint, or information charging
   1-11  him with commission of an offense <a felony> has not been presented
   1-12  against him for an offense arising out of the transaction for which
   1-13  he was arrested before the second anniversary of the date of the
   1-14  arrest or, if an indictment, complaint, or information charging him
   1-15  with commission of an offense <a felony> was presented, it has been
   1-16  dismissed <and the court finds that it was dismissed because the
   1-17  presentment had been made because of mistake, false information, or
   1-18  other similar reason indicating absence of probable cause at the
   1-19  time of the dismissal to believe the person committed the offense
   1-20  or because it was void>; or
   1-21              (2)  he has been acquitted at the trial of the offense
   1-22  for which the arrest was made <released and the charge, if any, has
   1-23  not resulted in a final conviction and, is no longer pending and
   1-24  there was no court ordered probation under Article 42.12, Code of
    2-1  Criminal Procedure, nor a conditional discharge under Section
    2-2  481.109 Health and Safety Code; and>
    2-3              <(3)  he has not been convicted of a felony in the five
    2-4  years preceding the date of the arrest>.
    2-5        Art. 55.02.  Procedure for Expunction
    2-6        Sec. 1.  (a)  The trial court shall enter an order of
    2-7  expunction for a person entitled to expunction because the person
    2-8  was acquitted or the offense was dismissed <A person who is
    2-9  entitled to expunction of records and files under this chapter may
   2-10  file an ex parte petition for expunction in a district court for
   2-11  the county in which he was arrested>.
   2-12        (b)  The attorney representing the state whose office would
   2-13  have prosecuted the offense shall bring a motion for expunction for
   2-14  a person who was arrested but against whom no indictment,
   2-15  complaint, or information was filed before the second anniversary
   2-16  of the date of the arrest.  On filing of the motion, the trial
   2-17  court shall timely enter an order of expunction for the person <The
   2-18  petition must be verified and shall include the following or an
   2-19  explanation for why one or more of the following is not included:>
   2-20              <(1)  the petitioner's:>
   2-21                    <(A)  full name;>
   2-22                    <(B)  sex;>
   2-23                    <(C)  race;>
   2-24                    <(D)  date of birth;>
   2-25                    <(E)  driver's license number;>
   2-26                    <(F)  social security number; and>
   2-27                    <(G)  address at the time of the arrest;>
    3-1              <(2)  the offense charged against the petitioner;>
    3-2              <(3)  the date the offense charged against the
    3-3  petitioner was alleged to have been committed;>
    3-4              <(4)  the date the petitioner was arrested;>
    3-5              <(5)  the name of the county where the petitioner was
    3-6  arrested and if the arrest occurred in a municipality, the name of
    3-7  the municipality;>
    3-8              <(6)  the name of the agency that arrested the
    3-9  petitioner;>
   3-10              <(7)  the case number and court of offense; and>
   3-11              <(8)  a list of all law enforcement agencies, jails or
   3-12  other detention facilities, magistrates, courts, prosecuting
   3-13  attorneys, correctional facilities, central state depositories of
   3-14  criminal records, and other officials or agencies or other entities
   3-15  of this state or of any political subdivision of this state and of
   3-16  all central federal depositories of criminal records that the
   3-17  petitioner has reason to believe have records or files that are
   3-18  subject to expunction>.
   3-19        Sec. 2.  The court shall enter the order of expunction not
   3-20  later <set a hearing on the matter no sooner> than 30 <thirty> days
   3-21  from the date of acquittal, dismissal, or filing of the motion by
   3-22  the attorney representing the state.  The court shall include in
   3-23  the order a listing of each official, agency, or other entity of
   3-24  this state or a political subdivision of this state that there is
   3-25  reason to believe has any records or files that are subject to the
   3-26  order <filing of the petition and shall give reasonable notice of
   3-27  the hearing to each official or agency or other entity named in the
    4-1  petition by certified mail, return receipt requested, and such
    4-2  entity may be represented by the attorney responsible for providing
    4-3  such agency with legal representation in other matters>.
    4-4        Sec. 3.  (a)  <If the court finds that the petitioner is
    4-5  entitled to expunction of any records and files that are the
    4-6  subject of the petition, it shall enter an order directing
    4-7  expunction and directing any state agency that sent information
    4-8  concerning the arrest to a central federal depository to request
    4-9  such depository to return all records and files subject to the
   4-10  order of expunction.  Any petitioner or agency protesting the
   4-11  expunction may appeal the court's decision in the same manner as in
   4-12  other civil cases.>  When the order of expunction is final, the
   4-13  clerk of the court shall send a certified copy of the order by
   4-14  certified mail, return receipt requested, to the Department of
   4-15  Public Safety and to each official or agency or other entity of
   4-16  this state or of any political subdivision of this state named in
   4-17  the order <that there is reason to believe has any records or files
   4-18  that are subject to the order>.  The Department of Public Safety
   4-19  shall send a copy by certified mail, return receipt requested, of
   4-20  the order to any central federal depository of criminal records
   4-21  that there is reason to believe has any of the records, together
   4-22  with an explanation of the effect of the order and a request that
   4-23  the records in possession of the depository, including any
   4-24  information with respect to the proceeding under this article, be
   4-25  destroyed or returned to the court.
   4-26        (b)  All returned receipts received by the clerk from notices
   4-27  of the hearing and copies of the order shall be maintained in the
    5-1  file on the proceedings under this chapter.
    5-2        Sec. 4.  (a)  If the state establishes that the person
    5-3  <petitioner> is still subject to conviction for an offense arising
    5-4  out of the transaction for which he was arrested because the
    5-5  statute of limitations has not run and there is reasonable cause to
    5-6  believe that the state may proceed against him for the offense, the
    5-7  court may provide in its order that the law enforcement agency and
    5-8  the prosecuting attorney responsible for investigating the offense
    5-9  may retain any records and files that are necessary to the
   5-10  investigation.
   5-11        (b)  Unless the person <petitioner> is again arrested for or
   5-12  charged with an offense arising out of the transaction for which he
   5-13  was arrested, the provisions of Articles 55.03 and 55.04 of this
   5-14  code apply to files and records retained under this section.
   5-15        Sec. 5.  (a)  On receipt of the order, each official or
   5-16  agency or other entity named in the order shall:
   5-17              (1)  return all records and files that are subject to
   5-18  the expunction order to the court or, if removal is impracticable,
   5-19  obliterate all portions of the record or file that identify the
   5-20  person <petitioner> and notify the court of its action; and
   5-21              (2)  delete from its public records all index
   5-22  references to the records and files that are subject to the
   5-23  expunction order.
   5-24        (b)  The court may give the person <petitioner> all records
   5-25  and files returned to it pursuant to its order.
   5-26        (c)  If an order of expunction is issued under this article,
   5-27  the court records concerning expunction proceedings are not open
    6-1  for inspection by anyone except the person <petitioner> unless the
    6-2  order permits retention of a record under Section 4 of this article
    6-3  and the person <petitioner> is again arrested for or charged with
    6-4  an offense arising out of the transaction for which he was
    6-5  arrested.  The clerk of the court issuing the order shall
    6-6  obliterate all public references to the proceeding and maintain the
    6-7  files or other records in an area not open to inspection.
    6-8        (d)  The clerk of the court shall destroy all the files or
    6-9  other records maintained under Subsection (c) of this section on
   6-10  the first anniversary of the date the order of expunction is issued
   6-11  unless the records or files were released under Subsection (b) of
   6-12  this section.
   6-13        (e)  The clerk shall certify to the court the destruction of
   6-14  files or other records under Subsection (d) of this section.
   6-15        Art. 55.03.  Effect of Expunction.  After entry of an
   6-16  expunction order:
   6-17              (1)  the release, dissemination, or use of the expunged
   6-18  records and files for any purpose is prohibited;
   6-19              (2)  except as provided in Subdivision 3 of this
   6-20  article, the person arrested <petitioner> may deny the occurrence
   6-21  of the arrest and the existence of the expunction order; and
   6-22              (3)  the person arrested <petitioner> or any other
   6-23  person, when questioned under oath in a criminal proceeding about
   6-24  an arrest for which the records have been expunged, may state only
   6-25  that the matter in question has been expunged.
   6-26        SECTION 2.  Articles 55.05 and 102.006, Code of Criminal
   6-27  Procedure, are repealed.
    7-1        SECTION 3.  (a)  This Act takes effect September 1, 1993, and
    7-2  applies only to the expunction of arrest records related to:
    7-3              (1)  a criminal offense for which an acquittal occurred
    7-4  on or after that date;
    7-5              (2)  a charge for an offense that was dismissed on or
    7-6  after that date; or
    7-7              (3)  an arrest made on or after that date.
    7-8        (b)  Expunction for an acquittal, dismissal, or arrest that
    7-9  occurred before the effective date of this Act is governed by the
   7-10  law in effect at that time, and the former law is continued in
   7-11  effect for this purpose.
   7-12        SECTION 4.  The importance of this legislation and the
   7-13  crowded condition of the calendars in both houses create an
   7-14  emergency   and   an   imperative   public   necessity   that   the
   7-15  constitutional rule requiring bills to be read on three several
   7-16  days in each house be suspended, and this rule is hereby suspended.