By: De la Garza H.B. No. 613
73R3190 NSC-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the penalties for certain offenses involving controlled
1-3 substances in drug-free school zones and certain offenses involving
1-4 weapons in weapon-free school zones, to creation of the offenses of
1-5 discharging a firearm at a habitation, building, or vehicle and
1-6 discharging a firearm from a vehicle, to the definition of a
1-7 criminal street gang for the purpose of prosecution, and to the
1-8 records of the conviction or adjudication of a minor.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 ARTICLE 1
1-11 SECTION 1.01. Subchapter D, Chapter 481, Health and Safety
1-12 Code, is amended by adding Section 481.134 to read as follows:
1-13 Sec. 481.134. DRUG-FREE SCHOOL ZONES. (a) In this section:
1-14 (1) "Minor" means a person who is 17 years of age or
1-15 younger.
1-16 (2) "School" means a private or public elementary or
1-17 secondary school.
1-18 (b) A person commits an offense if the person violates
1-19 Section 481.112, 481.113, 481.114, 481.119, or 481.120 and is at
1-20 the time the violation occurs:
1-21 (1) in, on, or within 1,000 feet of any real property
1-22 that is owned by or leased to a school or school board; or
1-23 (2) on a school bus that has a minor aboard.
1-24 (c) An offense under this section is punishable by:
2-1 (1) confinement in the institutional division of the
2-2 Texas Department of Criminal Justice for life or for a term of not
2-3 more than 99 years or less than 10 years; and
2-4 (2) a fine not to exceed $100,000.
2-5 (d) If it is shown on the trial of an offense under this
2-6 section that the defendant has been previously convicted of an
2-7 offense under this section, the defendant is not eligible for
2-8 probation or deferred adjudication under Article 42.12, Code of
2-9 Criminal Procedure.
2-10 (e) Punishment for a conviction under this section may not
2-11 run concurrently with punishment for a conviction under any other
2-12 criminal statute.
2-13 (f) It is an affirmative defense to prosecution under this
2-14 section that:
2-15 (1) the offense was committed inside a private
2-16 residence; and
2-17 (2) no minor was present in the private residence at
2-18 the time the offense was committed.
2-19 SECTION 1.02. Subchapter D, Chapter 481, Health and Safety
2-20 Code, is amended by adding Section 481.135 to read as follows:
2-21 Sec. 481.135. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In
2-22 a prosecution under Section 481.134, a map produced or reproduced
2-23 by a municipal or county engineer for the purpose of showing the
2-24 location and boundaries of drug-free school zones is admissible in
2-25 evidence and is prima facie evidence of the location or boundaries
2-26 of those areas if the governing body of the municipality or county
2-27 adopts a resolution or ordinance approving the map as an official
3-1 finding and record of the location or boundaries of those areas.
3-2 (b) A municipal or county engineer may, on request of the
3-3 governing body of the municipality or county, revise a map that has
3-4 been approved by the governing body of the municipality or county
3-5 as provided by Subsection (a).
3-6 (c) A municipal or county engineer shall file the original
3-7 or a copy of every approved or revised map approved as provided by
3-8 Subsection (a) with the county clerk of each county in which the
3-9 area is located.
3-10 (d) This section does not prevent the prosecution from:
3-11 (1) introducing or relying on any other evidence or
3-12 testimony to establish any element of an offense listed in Section
3-13 481.134; or
3-14 (2) using or introducing any other map or diagram
3-15 otherwise admissible under the Texas Rules of Criminal Evidence.
3-16 SECTION 1.03. Section 3g(a), Article 42.12, Code of Criminal
3-17 Procedure, is amended to read as follows:
3-18 (a) The provisions of Section 3 of this article do not
3-19 apply:
3-20 (1) to a defendant adjudged guilty of an offense
3-21 defined by the following sections of the Penal Code:
3-22 (A) Section 19.03 (Capital murder);
3-23 (B) Section 20.04 (Aggravated kidnapping);
3-24 (C) Section 22.021 (Aggravated sexual assault);
3-25 (D) Section 29.03 (Aggravated robbery); <or>
3-26 (2) to a defendant adjudged guilty of an offense under
3-27 Section 481.134, Health and Safety Code, if it is shown that the
4-1 defendant has been previously convicted of an offense under that
4-2 section; or
4-3 (3) to a defendant when it is shown that a deadly
4-4 weapon as defined in Section 1.07(a)(11), Penal Code, was used or
4-5 exhibited during the commission of a felony offense or during
4-6 immediate flight therefrom, and that the defendant used or
4-7 exhibited the deadly weapon or was a party to the offense and knew
4-8 that a deadly weapon would be used or exhibited. On an affirmative
4-9 finding under this subdivision, the trial court shall enter the
4-10 finding in the judgment of the court. On an affirmative finding
4-11 that the deadly weapon was a firearm, the court shall enter that
4-12 finding in its judgment.
4-13 SECTION 1.04. Section 4(a), Article 42.12, Code of Criminal
4-14 Procedure, is amended to read as follows:
4-15 (a) When there is a felony conviction in any court of this
4-16 State and the punishment assessed by the jury shall not exceed ten
4-17 years, the jury may recommend probation for a period of any term of
4-18 years authorized for the offense for which the defendant was
4-19 convicted, but in no event for more than ten years, upon written
4-20 sworn motion made therefor by the defendant, filed before the trial
4-21 begins. When the jury recommends probation, it may also assess a
4-22 fine applicable to the offense for which the defendant was
4-23 convicted. When the trial is to a jury, and the defendant has no
4-24 counsel, the court shall inform the defendant of his right to make
4-25 such motion, and the court shall appoint counsel to prepare and
4-26 present same, if desired by the defendant. In no case shall
4-27 probation be recommended by the jury except when the sworn motion
5-1 and proof shall show, and the jury shall find in their verdict that
5-2 the defendant has never before been convicted of a felony in this
5-3 or any other State. This law is not to be construed as preventing
5-4 the jury from passing on the guilt of the defendant, but he may
5-5 enter a plea of not guilty. In all eligible cases, probation shall
5-6 be granted by the court, if the jury recommends it in their
5-7 verdict, for the period recommended by the jury. This section does
5-8 not apply to a defendant adjudged guilty of an offense under
5-9 Section 481.122, Texas Controlled Substances Act (Chapter 481,
5-10 Health and Safety Code), if it is shown on the trial of the offense
5-11 that the defendant was 21 years of age or older at the time the
5-12 offense was committed by his own conduct or to a defendant adjudged
5-13 guilty of an offense under Section 481.134, Health and Safety Code,
5-14 if it is shown that the defendant has been previously convicted of
5-15 an offense under that section.
5-16 SECTION 1.05. Section 5(d), Article 42.12, Code of Criminal
5-17 Procedure, is amended to read as follows:
5-18 (d) This section does not apply to a defendant charged with
5-19 an offense under Subdivision (2), Subsection (a), Section 19.05,
5-20 Penal Code, an offense under Sections 481.107(b) through (e),
5-21 481.122, or 481.126, Health and Safety Code, an offense under
5-22 Article 6701l-1, Revised Statutes, an offense under Section 34,
5-23 Chapter 173, Acts of the 47th Legislature, Regular Session, 1941
5-24 (Article 6687b, Vernon's Texas Civil Statutes), an offense under
5-25 Section 32(c), Texas Motor Vehicle Safety-Responsibility Act
5-26 (Article 6701h, Vernon's Texas Civil Statutes), or an offense under
5-27 Section 10, Texas Commercial Driver's License Act (Article 6687b-2,
6-1 Revised Statutes), or to a defendant adjudged guilty of an offense
6-2 under Section 481.134, Health and Safety Code, if it is shown that
6-3 the defendant has been previously convicted of an offense under
6-4 that section.
6-5 SECTION 1.06. Chapter 46, Penal Code, is amended by adding
6-6 Section 46.13 to read as follows:
6-7 Sec. 46.13. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
6-8 SCHOOL ZONE. (a) Except as provided by Subsection (b) of this
6-9 section, the punishment prescribed for an offense under this
6-10 chapter is increased to the punishment prescribed for the next
6-11 highest category of offense if it is shown on the trial of the
6-12 offense that the offense was committed within 1,000 feet of a
6-13 primary or secondary school subject to or eligible for
6-14 accreditation by the Central Education Agency.
6-15 (b) This section does not apply to an offense under Section
6-16 46.04(a)(1) of this code.
6-17 SECTION 1.07. Chapter 46, Penal Code, is amended by adding
6-18 Section 46.14 to read as follows:
6-19 Sec. 46.14. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a
6-20 prosecution under Section 46.13, a map produced or reproduced by a
6-21 municipal or county engineer for the purpose of showing the
6-22 location and boundaries of weapon-free school zones is admissible
6-23 in evidence and is prima facie evidence of the location or
6-24 boundaries of those areas if the governing body of the municipality
6-25 or county adopts a resolution or ordinance approving the map as an
6-26 official finding and record of the location or boundaries of those
6-27 areas.
7-1 (b) A municipal or county engineer may, on request of the
7-2 governing body of the municipality or county, revise a map that has
7-3 been approved by the governing body of the municipality or county
7-4 as provided by Subsection (a).
7-5 (c) A municipal or county engineer shall file the original
7-6 or a copy of every approved or revised map approved as provided by
7-7 Subsection (a) with the county clerk of each county in which the
7-8 area is located.
7-9 (d) This section does not prevent the prosecution from:
7-10 (1) introducing or relying on any other evidence or
7-11 testimony to establish any element of an offense for which
7-12 punishment is increased under Section 46.13; or
7-13 (2) using or introducing any other map or diagram
7-14 otherwise admissible under the Texas Rules of Criminal Evidence.
7-15 SECTION 1.08. (a) The change in law made by this article
7-16 applies only to the punishment for an offense committed on or after
7-17 the effective date of this article. For purposes of this section,
7-18 an offense is committed before the effective date of this article
7-19 if any element of the offense occurs before the effective date.
7-20 (b) An offense committed before the effective date of this
7-21 article is covered by the law in effect when the offense was
7-22 committed, and the former law is continued in effect for this
7-23 purpose.
7-24 SECTION 1.09. This article takes effect January 1, 1994.
7-25 ARTICLE 2
7-26 SECTION 2.01. Chapter 42, Penal Code, is amended by adding
7-27 Section 42.15 to read as follows:
8-1 Sec. 42.15. DISCHARGING A FIREARM AT A HABITATION, BUILDING,
8-2 OR VEHICLE. (a) A person commits an offense if the person
8-3 recklessly discharges a firearm at a:
8-4 (1) habitation or building that is regularly occupied
8-5 by individuals; or
8-6 (2) vehicle that is occupied by an individual.
8-7 (b) Except as provided by Subsection (c) of this section, an
8-8 offense under this section is a felony of the second degree.
8-9 (c) An offense under this section is a felony of the first
8-10 degree if it is shown at the trial of the offense that the actor's
8-11 conduct caused bodily injury to another.
8-12 (d) If conduct constituting an offense under this section
8-13 also constitutes an offense under another section of this code, the
8-14 actor may be prosecuted under either section.
8-15 (e) In this section:
8-16 (1) "Habitation," "building," and "vehicle" have the
8-17 meanings assigned by Section 30.01 of this code.
8-18 (2) "Regularly occupied" means a place where
8-19 individuals are usually present regardless of whether an individual
8-20 is actually present at the time that the firearm is discharged.
8-21 SECTION 2.02. Chapter 42, Penal Code, is amended by adding
8-22 Section 42.16 to read as follows:
8-23 Sec. 42.16. Discharging a Firearm From a Vehicle. (a) A
8-24 person commits an offense if the person:
8-25 (1) recklessly discharges a firearm while the person:
8-26 (A) is in a vehicle; or
8-27 (B) is within 10 feet of a vehicle that the
9-1 person was in immediately before the firearm was discharged; or
9-2 (2) knowingly threatens another with a firearm while
9-3 the person:
9-4 (A) is in a vehicle; or
9-5 (B) is within 10 feet of a vehicle that the
9-6 person was in immediately before the person made the threat.
9-7 (b) Except as provided by Subsection (c) of this section, an
9-8 offense under this section is a felony of the second degree.
9-9 (c) An offense under this section is a felony of the first
9-10 degree if it is shown at the trial of the offense that the actor's
9-11 conduct caused bodily injury to another.
9-12 (d) If conduct constituting an offense under this section
9-13 also constitutes an offense under another section of this code, the
9-14 person may be prosecuted under either section.
9-15 (e) In this section, "vehicle" has the meaning assigned by
9-16 Section 30.01 of this code.
9-17 SECTION 2.03. This article takes effect September 1, 1993.
9-18 ARTICLE 3
9-19 SECTION 3.01. Section 71.01(d), Penal Code, is amended to
9-20 read as follows:
9-21 (d) "Criminal street gang" means an ongoing organization,
9-22 association, or group of three or more persons having a common
9-23 identifying sign or symbol or an identifiable leadership that has
9-24 as one of its primary activities the commission of one or more
9-25 offenses set out by the following provisions:
9-26 (1) under this code:
9-27 (A) Section 19.02 (Murder);
10-1 (B) Section 19.03 (Capital Murder);
10-2 (C) Section 19.05 (Involuntary Manslaughter);
10-3 (D) Section 22.01 (Assault);
10-4 (E) Section 22.02 (Aggravated Assault);
10-5 (F) Section 28.02 (Arson);
10-6 (G) Section 28.03 (Criminal Mischief);
10-7 (H) Section 29.02 (Robbery);
10-8 (I) Section 29.03 (Aggravated Robbery);
10-9 (J) Section 31.07 (Unauthorized Use of a
10-10 Vehicle);
10-11 (K) Section 36.05 (Tampering with a Witness); or
10-12 (L) Section 36.06 (Retaliation); and
10-13 (2) under the Health and Safety Code:
10-14 (A) Section 481.112 (Manufacture or Delivery of
10-15 Substance in Penalty Group 1);
10-16 (B) Section 481.113 (Manufacture or Delivery of
10-17 Substance in Penalty Group 2);
10-18 (C) Section 481.114 (Manufacture or Delivery of
10-19 Substance in Penalty Group 3 or 4);
10-20 (D) Section 481.115 (Possession of Substance in
10-21 Penalty Group 1);
10-22 (E) Section 481.116 (Possession of Substance in
10-23 Penalty Group 2);
10-24 (F) Section 481.117 (Possession of Substance in
10-25 Penalty Group 3);
10-26 (G) Section 481.118 (Possession of Substance in
10-27 Penalty Group 4);
11-1 (H) Section 481.119 (Manufacture, Delivery, or
11-2 Possession of Miscellaneous Substances);
11-3 (I) Section 481.120 (Delivery of Marihuana);
11-4 (J) Section 481.121 (Possession of Marihuana);
11-5 or
11-6 (K) Section 481.123 (Delivery, Manufacture, or
11-7 Possession of Controlled Substance Analogue) <who continuously or
11-8 regularly associate in the commission of criminal activities>.
11-9 SECTION 3.02. (a) The change in law made by this article
11-10 applies only to an offense committed on or after the effective date
11-11 of this article. For purposes of this section, an offense is
11-12 committed before the effective date of this article if any element
11-13 of the offense occurs before that date.
11-14 (b) An offense committed before the effective date of this
11-15 article is governed by the law in effect when the offense was
11-16 committed, and the former law is continued in effect for this
11-17 purpose.
11-18 SECTION 3.03. This article takes effect September 1, 1993.
11-19 ARTICLE 4
11-20 SECTION 4.01. Section 51.14, Family Code, as amended by
11-21 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
11-22 Session, 1987, is amended by amending Subsections (a), (b), and (c)
11-23 and adding Subsection (g) to read as follows:
11-24 (a) Except as provided by Subsection (e) of this section,
11-25 all files and records of a juvenile court, a clerk of court, or a
11-26 prosecuting attorney relating to a child who is a party to a
11-27 proceeding under this title are open to inspection only by:
12-1 (1) the judge, probation officers, and professional
12-2 staff or consultants of the juvenile court;
12-3 (2) an attorney for a party to the proceeding;
12-4 (3) a public or private agency or institution
12-5 providing supervision of the child by arrangement of the juvenile
12-6 court, or having custody of the child under juvenile court order;
12-7 <or>
12-8 (4) a law enforcement officer as necessary for the
12-9 discharge of the officer's official duties; or
12-10 (5) with leave of juvenile court, any other person,
12-11 agency, or institution having a legitimate interest in the
12-12 proceeding or in the work of the court.
12-13 (b) All files and records of a public or private agency or
12-14 institution providing supervision of a child by arrangement of the
12-15 juvenile court or having custody of the child under order of the
12-16 juvenile court are open to inspection only by:
12-17 (1) the professional staff or consultants of the
12-18 agency or institution;
12-19 (2) the judge, probation officers, and professional
12-20 staff or consultants of the juvenile court;
12-21 (3) an attorney for the child;
12-22 (4) with leave of the juvenile court, any other
12-23 person, agency, or institution having a legitimate interest in the
12-24 work of the agency or institution; <or>
12-25 (5) the Texas Department of Criminal Justice
12-26 <Corrections>, the Department of Public Safety, and the Texas
12-27 Juvenile Probation Commission, for the purpose of maintaining
13-1 statistical records of recidivism, and for diagnosis and
13-2 classification; or
13-3 (6) a law enforcement officer as necessary for the
13-4 discharge of the officer's official duties.
13-5 (c) Except as provided by this subsection, law-enforcement
13-6 files and records concerning a child shall be kept separate from
13-7 files and records of arrests of adults and shall be maintained on a
13-8 local basis only and not sent to a central state or federal
13-9 depository. The <However, the> law-enforcement files and records
13-10 of a person who is transferred from the Texas Youth Commission to
13-11 the institutional division of the Texas Department of Criminal
13-12 Justice <Corrections> under a determinate sentence may be
13-13 transferred to a central state <or federal> depository for adult
13-14 records on or after the date of transfer. If a child has been
13-15 reported as missing by a parent, guardian, or conservator of that
13-16 child or a child has escaped from the custody of a juvenile
13-17 detention facility, the Texas Youth Commission, or any other agency
13-18 to which the child has been committed, any information or records
13-19 concerning that child may be transferred to and disseminated by the
13-20 Texas Crime Information Center and the National Crime Information
13-21 Center.
13-22 (g) The files and records of a juvenile court, a clerk of
13-23 court, or a prosecuting attorney relating to a child who is a party
13-24 to a proceeding under this title may not be used for enhancement
13-25 purposes in any subsequent criminal proceeding relating to the
13-26 child.
13-27 SECTION 4.02. Section 51.15, Family Code, as amended by
14-1 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
14-2 Session, 1987, is amended by amending Subsections (a)-(c), (e), and
14-3 (g) to read as follows:
14-4 (a) No child may be fingerprinted without the consent of the
14-5 juvenile court except as provided by this subsection or by
14-6 subsections (f) and (i) of this section. A child's fingerprints
14-7 may be taken and filed by a law-enforcement officer investigating a
14-8 case if:
14-9 (1) the child is 15 years of age or older and is
14-10 referred to the juvenile court for any felony; or
14-11 (2) the child is under 15 years of age and is referred
14-12 to the juvenile court for:
14-13 (A) a felony listed in Section 53.045(a) of this
14-14 code;
14-15 (B) an offense listed in Section 8(c), Article
14-16 42.18, Code of Criminal Procedure; reckless conduct as described
14-17 by Section 22.05, Penal Code; or a terroristic threat as described
14-18 by Section 22.07, Penal Code;
14-19 (C) the unlawful use, sale, or possession of a
14-20 controlled substance, drug paraphernalia, or marihuana, as defined
14-21 by Chapter 481, Health and Safety Code;
14-22 (D) the unlawful possession of any of the
14-23 weapons or devices listed in Sections 46.01(1)-(14) or (16), Penal
14-24 Code; or
14-25 (E) a criminal offense resulting from
14-26 participation in a criminal street gang defined by Section 71.01,
14-27 Penal Code.
15-1 (b) Except as provided in Subsections (h) and (i) of this
15-2 section, no child taken into custody may be photographed without
15-3 the consent of the juvenile court unless:
15-4 (1) the child is 15 years of age or older and is
15-5 referred to the juvenile court for a felony; or
15-6 (2) the child is under 15 years of age and is referred
15-7 to the juvenile court for:
15-8 (A) a felony listed in Section 53.045(a) of this
15-9 code;
15-10 (B) an offense listed in Section 8(c),
15-11 Article 42.18, Code of Criminal Procedure; reckless conduct as
15-12 described by Section 22.05, Penal Code; or a terroristic threat as
15-13 described by Section 22.07, Penal Code;
15-14 (C) the unlawful use, sale, or possession of a
15-15 controlled substance, drug paraphernalia, or marihuana, as defined
15-16 by Chapter 481, Health and Safety Code;
15-17 (D) the unlawful possession of any of the
15-18 weapons or devices listed in Sections 46.01(1)-(14) or (16), Penal
15-19 Code; or
15-20 (E) a criminal offense resulting from
15-21 participation in a criminal street gang defined by Section 71.01,
15-22 Penal Code.
15-23 (c) Except as provided by this subsection, fingerprint and
15-24 photograph files or records of children shall be kept separate from
15-25 those of adults<, and fingerprints or photographs known to be those
15-26 of a child shall be maintained on a local basis only and not sent
15-27 to a central state or federal depository>. The <However,>
16-1 fingerprint and photograph files or records of a person who is
16-2 transferred from the Texas Youth Commission to the institutional
16-3 division of the Texas Department of Criminal Justice <Corrections>
16-4 under a determinate sentence may be transferred to adult records on
16-5 or after the date of transfer. If a child has been reported as
16-6 missing by a parent, guardian, or conservator of that child or a
16-7 child has escaped from the custody of a juvenile detention
16-8 facility, the Texas Youth Commission, or any other agency to which
16-9 the child has been committed, the child's fingerprints and
16-10 photograph may be sent to and indexed into the files of the
16-11 Department of Public Safety and the Federal Bureau of Investigation
16-12 to aid in the location and identification of the child.
16-13 (e) A child's fingerprints and photographs that are not
16-14 transferred under Subsection (c) of this section shall be removed
16-15 from files or records and destroyed if the law enforcement agency
16-16 having custody of the fingerprints and photographs receives an
16-17 order to destroy the child's fingerprints and photographs under
16-18 Section 51.16 of this code<:>
16-19 <(1) a petition alleging that the child engaged in
16-20 delinquent conduct or conduct indicating a need for supervision is
16-21 not filed, or the proceedings are dismissed after a petition is
16-22 filed, or the child is found not to have engaged in the alleged
16-23 conduct;>
16-24 <(2) the person reaches 18 years of age, is not
16-25 subject to commitment to the Texas Youth Commission or to transfer
16-26 under a determinate sentence to the Texas Department of
16-27 Corrections, and there is no record that he committed a criminal
17-1 offense after reaching 17 years of age; or>
17-2 <(3) the person is older than 18 years, at least three
17-3 years have elapsed after the person's release from commitment, and
17-4 there is no evidence that he committed a criminal offense after the
17-5 release>.
17-6 (g) When destruction of fingerprints or photographs is
17-7 required by Subsection <(e),> (f)<,> or (h) of this section, the
17-8 agency with custody of the fingerprints or photographs shall
17-9 proceed with destruction without judicial order. However, if the
17-10 fingerprints or photographs are not destroyed, the juvenile court,
17-11 on its own motion or on application by the person fingerprinted or
17-12 photographed, shall order the destruction as required by this
17-13 section.
17-14 SECTION 4.03. Section 51.16, Family Code, is amended to read
17-15 as follows:
17-16 Sec. 51.16. DESTRUCTION <SEALING> OF FILES AND RECORDS. (a)
17-17 On <Except as provided by Subsection (j) of this section, on> the
17-18 application of a person 21 years of age or older who has been
17-19 found to have engaged in delinquent conduct or conduct indicating a
17-20 need for supervision, or who has been <a person> taken into custody
17-21 to determine whether he engaged in delinquent conduct or conduct
17-22 indicating a need for supervision<, or on the juvenile court's own
17-23 motion>, the court, after hearing, shall order the destruction
17-24 <sealing> of the files and records in the case, including those
17-25 specified in Sections 51.14 and 51.15 of this code, as provided by
17-26 this section <if the court finds that:>
17-27 <(1) two years have elapsed since final discharge of
18-1 the person, or since the last official action in his case if there
18-2 was no adjudication;>
18-3 <(2) since the time specified in Subdivision (1) of
18-4 this subsection, he has not been convicted of a felony or a
18-5 misdemeanor involving moral turpitude or found to have engaged in
18-6 delinquent conduct or conduct indicating a need for supervision,
18-7 and no proceeding is pending seeking conviction or adjudication;
18-8 and>
18-9 <(3) it is unlikely the person will engage in further
18-10 delinquent conduct or conduct indicating a need for supervision or
18-11 will commit a felony or a misdemeanor involving moral turpitude>.
18-12 (b) The court may grant the relief authorized in Subsection
18-13 (a) of this section <at any time> after final discharge of the
18-14 person or after the last official action in the person's <his> case
18-15 if there was no adjudication. The court shall order the
18-16 destruction of a person's records under this section if, after a
18-17 hearing in camera, the court finds that on or after the person's
18-18 18th birthday the person has not been convicted of a felony offense
18-19 and is not under indictment for a felony offense and that parole,
18-20 release under supervision, or probation of the person has not been
18-21 revoked because of conduct that constitutes a felony offense.
18-22 (c) Reasonable notice of the hearing shall be given to:
18-23 (1) the person who made the application <or who is the
18-24 subject of the files or records named in the motion>;
18-25 (2) the prosecuting attorney for the juvenile court;
18-26 (3) the authority granting the discharge if the final
18-27 discharge was from an institution or from parole;
19-1 (4) the public or private agency or institution having
19-2 custody of files or records named in the application <or motion>;
19-3 and
19-4 (5) the law-enforcement agency having custody of files
19-5 or records named in the application <or motion>.
19-6 (d) Copies of the <sealing> order requiring the destruction
19-7 of records shall be sent to each agency or official <therein> named
19-8 in the order.
19-9 (e) On entry of the order:
19-10 (1) all law-enforcement, prosecuting attorney, clerk
19-11 of court, and juvenile court files and records ordered destroyed
19-12 <sealed> shall be sent to the court issuing the order;
19-13 (2) all files and records of a public or private
19-14 agency or institution ordered destroyed <sealed> shall be sent to
19-15 the court issuing the order;
19-16 (3) all index references to the files and records
19-17 ordered destroyed <sealed> shall be deleted;
19-18 (4) the juvenile court, clerk of court, prosecuting
19-19 attorney, public or private agency or institution, and
19-20 law-enforcement officers and agencies shall properly reply that no
19-21 record exists with respect to such person upon inquiry in any
19-22 matter; and
19-23 (5) the adjudication shall be vacated and the
19-24 proceeding dismissed and treated for all purposes, including the
19-25 purpose of showing a prior finding of delinquency, as if it had
19-26 never occurred.
19-27 (f) <Inspection of the sealed files and records may be
20-1 permitted thereafter by an order of the juvenile court on the
20-2 petition of the person who is the subject of the files or records
20-3 and only by those persons named in the order.>
20-4 <(g)> On the final discharge of a child or on the last
20-5 official action in his case if there is no adjudication, the child
20-6 shall be given a written explanation of his rights under this
20-7 section and a copy of the provisions of this section.
20-8 (g) <(h)> A person whose files and records have been
20-9 destroyed <sealed> under this section <Act> is not required in any
20-10 proceeding or in any application for employment, information, or
20-11 licensing to state that the person <he> has been the subject of a
20-12 proceeding under this title <Act;> and any statement that the
20-13 person <he> has never been found to be a delinquent child may not
20-14 <shall never> be held against the person in any criminal or civil
20-15 proceeding.
20-16 <(i) Except as provided by Subsection (j) of this section,
20-17 on the motion of a person in whose name files and records are kept
20-18 or on the court's own motion, the court may order the destruction
20-19 of all files and records concerning a person who has been
20-20 adjudicated to be a child in need of supervision or a delinquent
20-21 child if:>
20-22 <(1) seven years have elapsed since the child's 16th
20-23 birthday; and>
20-24 <(2) the person has not been convicted of a felony.>
20-25 <(j) A court may not order under this section the
20-26 destruction of files and records concerning a person adjudicated as
20-27 having engaged in delinquent conduct that violated a penal law of
21-1 the grade of felony.>
21-2 <(k) A court may not order under this section the sealing of
21-3 files and records concerning a person adjudicated as having engaged
21-4 in delinquent conduct that violated a penal law of the grade of
21-5 felony unless:>
21-6 <(1) the person is 23 years of age or older;>
21-7 <(2) the files and records have not been:>
21-8 <(A) made a part of the person's adult record as
21-9 a result of the use of the files or records after the juvenile
21-10 court under Section 54.02 of this code transferred the person to a
21-11 criminal court for prosecution; or>
21-12 <(B) used as evidence in the punishment phase of
21-13 a criminal proceeding under Section 3(a), Article 37.07, Code of
21-14 Criminal Procedure; and>
21-15 <(3) the person has not been convicted of a penal law
21-16 of the grade of felony after becoming age 17.>
21-17 <(l) A prosecuting attorney may, by motion before a juvenile
21-18 court, reopen at any time the files and records of a person
21-19 adjudicated as having engaged in delinquent conduct that violated a
21-20 penal law of the grade of felony sealed by the court under
21-21 Subsection (k) of this section if, after the court ordered the
21-22 sealing, the person is indicted for a criminal offense that
21-23 occurred before the person's 23rd birthday or at any time is
21-24 charged with a capital offense or a felony of the first degree.>
21-25 SECTION 4.04. Section 3(a), Article 37.07, Code of Criminal
21-26 Procedure, is amended to read as follows:
21-27 (a) Regardless of the plea and whether the punishment be
22-1 assessed by the judge or the jury, evidence may, as permitted by
22-2 the Rules of Evidence, be offered by the state and the defendant as
22-3 to any matter the court deems relevant to sentencing, including the
22-4 prior criminal record of the defendant, his general reputation and
22-5 his character. The term prior criminal record means a final
22-6 conviction in a court of record, or a probated or suspended
22-7 sentence that has occurred prior to trial, or any final conviction
22-8 material to the offense charged. A court may consider as a factor
22-9 in mitigating punishment the conduct of a defendant while
22-10 participating in a program under Article 17.40 or 17.42(a) of this
22-11 code as a condition of release on bail. <Additionally,
22-12 notwithstanding Rule 609(d), Texas Rules of Criminal Evidence,
22-13 evidence may be offered by the state and the defendant of an
22-14 adjudication of delinquency based on a violation by the defendant
22-15 of a penal law of the grade of felony unless:>
22-16 <(1) the adjudication is based on conduct committed
22-17 more than five years before the commission of the offense for which
22-18 the person is being tried; and>
22-19 <(2) in the five years preceding the date of the
22-20 commission of the offense for which the person is being tried, the
22-21 person did not engage in conduct for which the person has been
22-22 adjudicated as a delinquent child or a child in need of supervision
22-23 and did not commit an offense for which the person has been
22-24 convicted.>
22-25 SECTION 4.05. The heading to Chapter 55, Code of Criminal
22-26 Procedure, is amended to read as follows:
22-27 CHAPTER 55. EXPUNCTION AND DESTRUCTION OF CRIMINAL RECORDS
23-1 SECTION 4.06. Articles 55.01 through 55.05, Code of Criminal
23-2 Procedure, are designated as included in Subchapter A of Chapter 55
23-3 and the heading of that subchapter is added to read as follows:
23-4 SUBCHAPTER A. EXPUNCTION OF RECORDS
23-5 SECTION 4.07. Chapter 55, Code of Criminal Procedure, is
23-6 amended by adding Subchapter B to read as follows:
23-7 SUBCHAPTER B. DESTRUCTION OF RECORDS FOR
23-8 CRIMES COMMITTED BEFORE AGE 18
23-9 Art. 55.21. DESTRUCTION OF RECORDS. (a) A person 21 years
23-10 of age or older who has been convicted for the violation of a penal
23-11 law of the grade of felony after being transferred from a juvenile
23-12 court to a district court or criminal district court under Section
23-13 54.02, Family Code, may apply for the destruction of the files and
23-14 records in the person's case as provided by this chapter.
23-15 (b) After final discharge of the person or after the last
23-16 official action in the person's case if there was no conviction,
23-17 the court shall order the destruction of a person's records under
23-18 this section if, after a hearing in camera, the court finds that on
23-19 or after the person's 18th birthday the person has not been
23-20 convicted of a felony and is not under indictment for a felony
23-21 offense and that parole, release under supervision, or probation of
23-22 the person has not been revoked because of conduct that constitutes
23-23 a felony offense.
23-24 Art. 55.22. NOTICE OF HEARING. Reasonable notice of the
23-25 hearing must be given to:
23-26 (1) the person who made the application;
23-27 (2) the prosecuting attorney for the district court or
24-1 criminal district court;
24-2 (3) the authority granting the discharge if the final
24-3 discharge was from an institution or from parole;
24-4 (4) the agency or institution having custody of files
24-5 or records named in the application; and
24-6 (5) the law enforcement agency having custody of files
24-7 or records named in the application.
24-8 Art. 55.23. RECORDS DESTRUCTION ORDER. (a) Copies of the
24-9 order requiring the destruction of records shall be sent to each
24-10 agency or official named in the order.
24-11 (b) On entry of the order:
24-12 (1) all law enforcement, prosecuting attorney, clerk
24-13 of court, and district court or criminal district court files and
24-14 records ordered destroyed shall be sent to the court issuing the
24-15 order;
24-16 (2) all files and records of a public or private
24-17 agency or institution ordered destroyed shall be sent to the court
24-18 issuing the order;
24-19 (3) all index references to the files and records
24-20 ordered destroyed shall be deleted;
24-21 (4) the district court or criminal district court,
24-22 clerk of court, prosecuting attorney, public or private agency or
24-23 institution, and law enforcement officers and agencies shall
24-24 properly reply that no record exists with respect to the person who
24-25 is the subject of the order on inquiry in any matter; and
24-26 (5) the conviction shall be vacated and the proceeding
24-27 dismissed and treated for all purposes, including the purpose of
25-1 showing a prior conviction, as if it never occurred.
25-2 Art. 55.24. EXPLANATION OF RIGHTS. On the final discharge
25-3 of the person or on the last official action in the person's case,
25-4 the person shall be given a written explanation of the person's
25-5 rights under this chapter and a copy of the provisions of this
25-6 chapter.
25-7 Art. 55.25. DISCLOSURE OF CONVICTION NOT REQUIRED. A person
25-8 whose files and records have been destroyed under this chapter is
25-9 not required in any proceeding or in any application for
25-10 employment, information, or licensing to state that the person has
25-11 been the subject of a criminal proceeding. Any statement that the
25-12 person has never been convicted may not be held against the person
25-13 in a criminal or civil proceeding.
25-14 SECTION 4.08. (a) The change in law made by this article
25-15 applies only to files and records created with regard to conduct
25-16 that occurs on or after the effective date of this article.
25-17 Conduct violating a penal law of the state occurs on or after the
25-18 effective date of this article if every element of the violation
25-19 occurs on or after that date.
25-20 (b) The files and records created with regard to conduct
25-21 that occurs before the effective date of this article are covered
25-22 by the law in effect at the time the conduct occurred, and the
25-23 former law is continued in effect for that purpose.
25-24 (c) The change in law made by Subchapter B of Chapter 55,
25-25 Code of Criminal Procedure, applies only to the records for an
25-26 offense committed on or after the effective date of this article.
25-27 For purposes of this section, an offense is committed before the
26-1 effective date of this article if every element of the offense
26-2 occurs before the effective date.
26-3 (d) The records of an offense committed before the effective
26-4 date of this article are covered by the law in effect at the time
26-5 the offense was committed, and the former law is continued in
26-6 effect for that purpose.
26-7 SECTION 4.09. This article takes effect September 1, 1993.
26-8 ARTICLE 5
26-9 SECTION 5.01. The importance of this legislation and the
26-10 crowded condition of the calendars in both houses create an
26-11 emergency and an imperative public necessity that the
26-12 constitutional rule requiring bills to be read on three several
26-13 days in each house be suspended, and this rule is hereby suspended.