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.