By:  Dutton                                            H.B. No. 507
       73R2341 DRH-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.  Article 55.01, Code of Criminal Procedure, is
    1-5  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        SECTION 2.  Article 55.02, Code of Criminal Procedure, is
    2-6  amended to read as follows:
    2-7        Art. 55.02.  PROCEDURE FOR EXPUNCTION
    2-8        Sec. 1.  (a)  The trial court shall enter an order of
    2-9  expunction for a person entitled to expunction because the person
   2-10  was acquitted or the offense was dismissed <A person who is
   2-11  entitled to expunction of records and files under this chapter may
   2-12  file an ex parte petition for expunction in a district court for
   2-13  the county in which he was arrested>.
   2-14        (b)  The attorney representing the state whose office would
   2-15  have prosecuted the offense shall bring a motion for expunction for
   2-16  a person who was arrested but against whom no indictment,
   2-17  complaint, or information was filed before the second anniversary
   2-18  of the date of the arrest.  On filing of the motion, the trial
   2-19  court shall timely enter an order of expunction for the person <The
   2-20  petition must be verified and shall include the following or an
   2-21  explanation for why one or more of the following is not included:>
   2-22              <(1)  the petitioner's:>
   2-23                    <(A)  full name;>
   2-24                    <(B)  sex;>
   2-25                    <(C)  race;>
   2-26                    <(D)  date of birth;>
   2-27                    <(E)  driver's license number;>
    3-1                    <(F)  social security number; and>
    3-2                    <(G)  address at the time of the arrest;>
    3-3              <(2)  the offense charged against the petitioner;>
    3-4              <(3)  the date the offense charged against the
    3-5  petitioner was alleged to have been committed;>
    3-6              <(4)  the date the petitioner was arrested;>
    3-7              <(5)  the name of the county where the petitioner was
    3-8  arrested and if the arrest occurred in a municipality, the name of
    3-9  the municipality;>
   3-10              <(6)  the name of the agency that arrested the
   3-11  petitioner;>
   3-12              <(7)  the case number and court of offense; and>
   3-13              <(8)  a list of all law enforcement agencies, jails or
   3-14  other detention facilities, magistrates, courts, prosecuting
   3-15  attorneys, correctional facilities, central state depositories of
   3-16  criminal records, and other officials or agencies or other entities
   3-17  of this state or of any political subdivision of this state and of
   3-18  all central federal depositories of criminal records that the
   3-19  petitioner has reason to believe have records or files that are
   3-20  subject to expunction>.
   3-21        Sec. 2.  The court shall enter the order of expunction not
   3-22  later <set a hearing on the matter no sooner> than thirty days from
   3-23  the date of acquittal, dismissal, or filing of the motion by the
   3-24  attorney representing the state.  The court shall include in the
   3-25  order a listing of each official, agency, or other entity of this
   3-26  state or a political subdivision of this state that there is reason
   3-27  to believe has any records or files that are subject to the order
    4-1  <filing of the petition and shall give reasonable notice of the
    4-2  hearing to each official or agency or other entity named in the
    4-3  petition by certified mail, return receipt requested, and such
    4-4  entity may be represented by the attorney responsible for providing
    4-5  such agency with legal representation in other matters>.
    4-6        Sec. 3.  (a)  <If the court finds that the petitioner is
    4-7  entitled to expunction of any records and files that are the
    4-8  subject of the petition, it shall enter an order directing
    4-9  expunction and directing any state agency that sent information
   4-10  concerning the arrest to a central federal depository to request
   4-11  such depository to return all records and files subject to the
   4-12  order of expunction.  Any petitioner or agency protesting the
   4-13  expunction may appeal the court's decision in the same manner as in
   4-14  other civil cases.>  When the order of expunction is final, the
   4-15  clerk of the court shall send a certified copy of the order by
   4-16  certified mail, return receipt requested, to the Department of
   4-17  Public Safety and to each official or agency or other entity of
   4-18  this state or of any political subdivision of this state named in
   4-19  the order <that there is reason to believe has any records or files
   4-20  that are subject to the order>.  The Department of Public Safety
   4-21  shall send a copy by certified mail, return receipt requested, of
   4-22  the order to any central federal depository of criminal records
   4-23  that there is reason to believe has any of the records, together
   4-24  with an explanation of the effect of the order and a request that
   4-25  the records in possession of the depository, including any
   4-26  information with respect to the proceeding under this article, be
   4-27  destroyed or returned to the court.
    5-1        (b)  All returned receipts received by the clerk from notices
    5-2  of the hearing and copies of the order shall be maintained in the
    5-3  file on the proceedings under this chapter.
    5-4        Sec. 4.  (a)  If the state establishes that the person
    5-5  <petitioner> is still subject to conviction for an offense arising
    5-6  out of the transaction for which he was arrested because the
    5-7  statute of limitations has not run and there is reasonable cause to
    5-8  believe that the state may proceed against him for the offense, the
    5-9  court may provide in its order that the law enforcement agency and
   5-10  the prosecuting attorney responsible for investigating the offense
   5-11  may retain any records and files that are necessary to the
   5-12  investigation.
   5-13        (b)  Unless the person <petitioner> is again arrested for or
   5-14  charged with an offense arising out of the transaction for which he
   5-15  was arrested, the provisions of Articles 55.03 and 55.04 of this
   5-16  code apply to files and records retained under this section.
   5-17        Sec. 5.  (a)  On receipt of the order, each official or
   5-18  agency or other entity named in the order shall:
   5-19              (1)  return all records and files that are subject to
   5-20  the expunction order to the court or, if removal is impracticable,
   5-21  obliterate all portions of the record or file that identify the
   5-22  person <petitioner> and notify the court of its action; and
   5-23              (2)  delete from its public records all index
   5-24  references to the records and files that are subject to the
   5-25  expunction order.
   5-26        (b)  The court may give the person <petitioner> all records
   5-27  and files returned to it pursuant to its order.
    6-1        (c)  If an order of expunction is issued under this article,
    6-2  the court records concerning expunction proceedings are not open
    6-3  for inspection by anyone except the person <petitioner> unless the
    6-4  order permits retention of a record under Section 4 of this article
    6-5  and the person <petitioner> is again arrested for or charged with
    6-6  an offense arising out of the transaction for which he was
    6-7  arrested.  The clerk of the court issuing the order shall
    6-8  obliterate all public references to the proceeding and maintain the
    6-9  files or other records in an area not open to inspection.
   6-10        (d)  The clerk of the court shall destroy all the files or
   6-11  other records maintained under Subsection (c) of this section on
   6-12  the first anniversary of the date the order of expunction is issued
   6-13  unless the records or files were released under Subsection (b) of
   6-14  this section.
   6-15        (e)  The clerk shall certify to the court the destruction of
   6-16  files or other records under Subsection (d) of this section.
   6-17        SECTION 3.  Article 55.03, Code of Criminal Procedure, is
   6-18  amended to read as follows:
   6-19        Art. 55.03.  Effect of Expunction.  After entry of an
   6-20  expunction order:
   6-21              (1)  the release, dissemination, or use of the expunged
   6-22  records and files for any purpose is prohibited;
   6-23              (2)  except as provided in Subdivision (3) of this
   6-24  article, the person arrested <petitioner> may deny the occurrence
   6-25  of the arrest and the existence of the expunction order; and
   6-26              (3)  the person arrested <petitioner> or any other
   6-27  person, when questioned under oath in a criminal proceeding about
    7-1  an arrest for which the records have been expunged, may state only
    7-2  that the matter in question has been expunged.
    7-3        SECTION 4.  Articles 55.05 and 102.006, Code of Criminal
    7-4  Procedure, are repealed.
    7-5        SECTION 5.  (a)  This Act takes effect September 1, 1993, and
    7-6  applies only to the expunction of arrest records related to:
    7-7              (1)  a criminal offense for which an acquittal occurred
    7-8  on or after that date;
    7-9              (2)  a charge for an offense that was dismissed on or
   7-10  after that date; or
   7-11              (3)  an arrest made on or after that date.
   7-12        (b)  Expunction for an acquittal, dismissal, or arrest that
   7-13  occurred before the effective date of this Act is governed by the
   7-14  law in effect at that time, and the former law is continued in
   7-15  effect for this purpose.
   7-16        SECTION 6.  The importance of this legislation and the
   7-17  crowded condition of the calendars in both houses create an
   7-18  emergency and an imperative public necessity that the
   7-19  constitutional rule requiring bills to be read on three several
   7-20  days in each house be suspended, and this rule is hereby suspended.