By Dutton                                             H.B. No. 1723
       74R4341 DD-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(a), Code of Criminal Procedure, is
    1-5  amended to read as follows:
    1-6        (a)  A person who has been arrested for commission of either
    1-7  a felony or misdemeanor is entitled to have all records and files
    1-8  relating to the arrest expunged if:
    1-9              (1)  the person is tried for the offense for which the
   1-10  person was arrested and is:
   1-11                    (A)  acquitted by the trial court; or
   1-12                    (B)  convicted and subsequently pardoned; or
   1-13              (2)  any <each> of the following conditions exist:
   1-14                    (A)  an indictment, complaint, or information
   1-15  charging him with commission of an offense <a felony> has not been
   1-16  presented against him for an offense arising out of the transaction
   1-17  for which he was arrested before the second anniversary of the date
   1-18  of the arrest;
   1-19                    (B)  <or,> if an indictment, complaint, or
   1-20  information charging him with commission of an offense <a felony>
   1-21  was presented, it has been dismissed; or
   1-22                    (C)  the person has successfully completed
   1-23  deferred adjudication and proceedings against the person have been
   1-24  dismissed under Section 5, Article 42.12, of this code <and the
    2-1  court finds that it was dismissed because the presentment had been
    2-2  made because of mistake, false information, or other similar reason
    2-3  indicating absence of probable cause at the time of the dismissal
    2-4  to believe the person committed the offense or because it was void;>
    2-5                    <(B)  he has been released and the charge, if
    2-6  any, has not resulted in  a final conviction and is no longer
    2-7  pending and there was no court ordered probation under Article
    2-8  42.12, Code of Criminal Procedure, nor a conditional discharge
    2-9  under Section 481.109, Health and Safety Code; and>
   2-10                    <(C)  he has not been convicted of a felony in
   2-11  the five years preceding the date of the arrest>.
   2-12        SECTION 2.  Article 55.02, Code of Criminal Procedure, is
   2-13  amended to read as follows:
   2-14        Art. 55.02.  PROCEDURE FOR EXPUNCTION
   2-15        Sec. 1.   (a)  The trial court shall enter an order of
   2-16  expunction for a person entitled to expunction because:
   2-17              (1)  the person was acquitted;
   2-18              (2)  the person was pardoned;
   2-19              (3)  the person successfully completed deferred
   2-20  adjudication and proceedings against the person have been dismissed
   2-21  under Section 5, Article 42.12, of this code; or
   2-22              (4)  the offense was dismissed <A person who is
   2-23  entitled to expunction of records and files under this chapter may
   2-24  file an ex parte petition for expunction in a district court for
   2-25  the county in which he was arrested>.
   2-26        (b)  The attorney representing the state whose office would
   2-27  have prosecuted the offense shall bring a motion for expunction for
    3-1  a person who was arrested but against whom no indictment,
    3-2  complaint, or information was filed before the second anniversary
    3-3  of the date of the arrest.  On filing of the motion, the trial
    3-4  court shall timely enter an order of expunction for the person <The
    3-5  petition must be verified and shall include the following or an
    3-6  explanation for why one or more of the following is not included:>
    3-7              <(1)  the petitioner's:>
    3-8                    <(A)  full name;>
    3-9                    <(B)  sex;>
   3-10                    <(C)  race;>
   3-11                    <(D)  date of birth;>
   3-12                    <(E)  driver's license number;>
   3-13                    <(F)  social security number; and>
   3-14                    <(G)  address at the time of the arrest;>
   3-15              <(2)  the offense charged against the petitioner;>
   3-16              <(3)  the date the offense charged against the
   3-17  petitioner was alleged to have been committed;>
   3-18              <(4)  the date the petitioner was arrested;>
   3-19              <(5)  the name of the county where the petitioner was
   3-20  arrested and if the arrest occurred in a municipality, the name of
   3-21  the municipality;>
   3-22              <(6)  the name of the agency that arrested the
   3-23  petitioner;>
   3-24              <(7)  the case number and court of offense; and>
   3-25              <(8)  a list of all law enforcement agencies, jails or
   3-26  other detention facilities, magistrates, courts, prosecuting
   3-27  attorneys, correctional facilities, central state depositories of
    4-1  criminal records, and other officials or agencies or other entities
    4-2  of this state or of any political subdivision of this state and of
    4-3  all central federal depositories of criminal records that the
    4-4  petitioner has reason to believe have records or files that are
    4-5  subject to expunction>.
    4-6        Sec. 2.   The court shall  enter the order of expunction not
    4-7  later <set a hearing on the matter no sooner> than thirty days from
    4-8  the date of acquittal, pardon, dismissal, or filing of the motion
    4-9  by the attorney representing the state.  The court shall include in
   4-10  the order a listing of each official, agency, or other entity of
   4-11  this state or a political subdivision of this state that there is
   4-12  reason  to believe has any records or files that are subject to the
   4-13  order <filing of the petition  and shall give reasonable notice of
   4-14  the hearing to each official or agency or other entity named in the
   4-15  petition by certified  mail, return receipt requested, and such
   4-16  entity may be represented by the attorney responsible for providing
   4-17  such agency with legal representation in other matters>.
   4-18        Sec. 3.   (a)  <If the court finds that the petitioner is
   4-19  entitled to expunction of any records and files that are the
   4-20  subject of the petition, it shall enter an order directing
   4-21  expunction and directing any state agency that sent information
   4-22  concerning the arrest to a central federal depository to request
   4-23  such depository to return all records and files subject to the
   4-24  order of expunction.  Any petitioner or agency protesting the
   4-25  expunction may appeal the court's decision in the same manner as in
   4-26  other civil cases.>  When the order of expunction is final, the
   4-27  clerk of the court shall send a certified copy of the order by
    5-1  certified mail, return receipt requested, to the Department of
    5-2  Public Safety and to each official or agency or other entity of
    5-3  this state or of any political subdivision of this state named in
    5-4  the order <that there is reason to believe has any records or files
    5-5  that are subject to the order>.  The Department of Public Safety
    5-6  shall send a copy by certified mail, return receipt requested, of
    5-7  the order to any central federal depository of criminal records
    5-8  that there is reason to believe has any of the records, together
    5-9  with an explanation of the effect of the order and a request that
   5-10  the records in possession of the depository, including any
   5-11  information with respect to the proceeding under this article, be
   5-12  destroyed or returned to the court.
   5-13        (b)  All returned receipts received by the clerk from notices
   5-14  of the hearing and copies of the order shall be maintained in the
   5-15  file on the proceedings under this chapter.
   5-16        Sec. 4.   (a)  If the state establishes that the person
   5-17  <petitioner> is still subject to conviction for an offense arising
   5-18  out of the transaction for which he was arrested because the
   5-19  statute of limitations has not run and  there is reasonable cause
   5-20  to believe that the state may proceed against him for the offense,
   5-21  the court may provide in its order that the law enforcement agency
   5-22  and the prosecuting attorney responsible for investigating the
   5-23  offense may retain any records and files that are necessary to the
   5-24  investigation.
   5-25        (b)  Unless the person <petitioner> is again arrested for or
   5-26  charged with an offense arising out of the transaction for which he
   5-27  was arrested, the provisions of Articles 55.03 and 55.04 of this
    6-1  code apply to files and records retained under this section.
    6-2        Sec. 5.   (a)  On receipt of the order, each official or
    6-3  agency or other entity named in the order shall:
    6-4              (1)  return all records and files that are subject to
    6-5  the expunction order to the court or, if removal is impracticable,
    6-6  obliterate all portions of the record or file that identify the
    6-7  person <petitioner> and notify the court of its action; and
    6-8              (2)  delete from its public records all index
    6-9  references to the records and files that are subject to the
   6-10  expunction order.
   6-11        (b)  The court may give the person <petitioner> all records
   6-12  and files returned to it pursuant to its order.
   6-13        (c)  If an order of expunction is issued under this article,
   6-14  the court records concerning expunction proceedings are not open
   6-15  for inspection by anyone except the person who is the subject of
   6-16  the order <petitioner> unless the order permits retention of a
   6-17  record under Section 4 of this article and the person <petitioner>
   6-18  is again arrested for or charged with an offense arising out of the
   6-19  transaction for which he was arrested.  The clerk of the court
   6-20  issuing the order shall obliterate all public references to the
   6-21  proceeding and maintain  the files or other records in an area not
   6-22  open to inspection.
   6-23        (d)  The clerk of the court shall destroy all the files or
   6-24  other records maintained under Subsection (c) of this section on
   6-25  the first anniversary of the date the order of expunction is issued
   6-26  unless the records or files were released under Subsection (b) of
   6-27  this section.
    7-1        (e)  The clerk shall certify to the court the destruction of
    7-2  files or other records under Subsection (d) of this section.
    7-3        SECTION 3.  Article 55.03, Code of Criminal Procedure, is
    7-4  amended to read as follows:
    7-5        Art. 55.03.  EFFECT OF EXPUNCTION.  After entry of an
    7-6  expunction order:
    7-7              (1)  the release, dissemination, or use of the expunged
    7-8  records and files for any purpose is prohibited;
    7-9              (2)  except as provided in Subdivision 3 of this
   7-10  article, the person arrested <petitioner> may deny the occurrence
   7-11  of the arrest and the existence of the expunction order; and
   7-12              (3)  the person arrested <petitioner> or any other
   7-13  person, when questioned under oath in a criminal proceeding about
   7-14  an arrest for which the records have been expunged, may state only
   7-15  that the matter in question has been expunged.
   7-16        SECTION 4.  Article 55.06, Code of Criminal Procedure, is
   7-17  amended to read as follows:
   7-18        Art. 55.06.  LICENSE SUSPENSIONS AND REVOCATIONS.  A court
   7-19  <person> may not order <use> the expunction of <provisions of this
   7-20  chapter to expunge> records relating to the suspension or
   7-21  revocation of a driver's license, permit, or privilege to operate a
   7-22  motor vehicle except as provided in Section 5(d), Article 6687b-1,
   7-23  Revised Statutes, or Section 2(r), Chapter 434, Acts of the 61st
   7-24  Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
   7-25  Civil Statutes).
   7-26        SECTION 5.  Articles 55.05 and 102.006, Code of Criminal
   7-27  Procedure, are repealed.
    8-1        SECTION 6.  (a)  This Act takes effect September 1, 1995, and
    8-2  applies only to the expunction of arrest records related to:
    8-3              (1)  a criminal offense for which an acquittal occurred
    8-4  on or after that date;
    8-5              (2)  a charge for an offense that was dismissed on or
    8-6  after that date;
    8-7              (3)  an offense for which proceedings were dismissed
    8-8  under Section 5, Article 42.12, Code of Criminal Procedure, on or
    8-9  after that date; or
   8-10              (4)  an arrest made on or after that date.
   8-11        (b)  Expunction for an acquittal, dismissal, or arrest that
   8-12  occurred before the effective date of this Act is governed by the
   8-13  law in effect at that time, and the former law is continued in
   8-14  effect for that purpose.
   8-15        SECTION 7.  The importance of this legislation and the
   8-16  crowded condition of the calendars in both houses create an
   8-17  emergency and an imperative public necessity that the
   8-18  constitutional rule requiring bills to be read on three several
   8-19  days in each house be suspended, and this rule is hereby suspended.