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.