By Dutton H.B. No. 504
75R2335 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 the 30th day
4-8 after [thirty days from] the date of acquittal, pardon, dismissal,
4-9 or filing of the motion by the attorney representing the state.
4-10 The court shall include in the order a listing of each official,
4-11 agency, or other entity of this state or a political subdivision of
4-12 this state that there is reason to believe has any records or
4-13 files that are subject to the order [filing of the petition and
4-14 shall give reasonable notice of the hearing to each official or
4-15 agency or other entity named in the petition by certified mail,
4-16 return receipt requested, and such entity may be represented by the
4-17 attorney responsible for providing such agency with legal
4-18 representation in other matters].
4-19 Sec. 3. (a) [If the court finds that the petitioner is
4-20 entitled to expunction of any records and files that are the
4-21 subject of the petition, it shall enter an order directing
4-22 expunction and directing any state agency that sent information
4-23 concerning the arrest to a central federal depository to request
4-24 such depository to return all records and files subject to the
4-25 order of expunction. Any petitioner or agency protesting the
4-26 expunction may appeal the court's decision in the same manner as in
4-27 other civil cases.] When the order of expunction is final, the
5-1 clerk of the court shall send a certified copy of the order by
5-2 certified mail, return receipt requested, to the Department of
5-3 Public Safety and to each official or agency or other entity of
5-4 this state or of any political subdivision of this state named in
5-5 the order [that there is reason to believe has any records or files
5-6 that are subject to the order]. The Department of Public Safety
5-7 shall send a copy by certified mail, return receipt requested, of
5-8 the order to any central federal depository of criminal records
5-9 that there is reason to believe has any of the records, together
5-10 with an explanation of the effect of the order and a request that
5-11 the records in possession of the depository, including any
5-12 information with respect to the proceeding under this article, be
5-13 destroyed or returned to the court.
5-14 (b) All returned receipts received by the clerk from notices
5-15 of the hearing and copies of the order shall be maintained in the
5-16 file on the proceedings under this chapter.
5-17 Sec. 4. (a) If the state establishes that the person
5-18 [petitioner] is still subject to conviction for an offense arising
5-19 out of the transaction for which he was arrested because the
5-20 statute of limitations has not run and there is reasonable cause
5-21 to believe that the state may proceed against him for the offense,
5-22 the court may provide in its order that the law enforcement agency
5-23 and the prosecuting attorney responsible for investigating the
5-24 offense may retain any records and files that are necessary to the
5-25 investigation.
5-26 (b) Unless the person [petitioner] is again arrested for or
5-27 charged with an offense arising out of the transaction for which he
6-1 was arrested, the provisions of Articles 55.03 and 55.04 of this
6-2 code apply to files and records retained under this section.
6-3 Sec. 5. (a) On receipt of the order, each official or
6-4 agency or other entity named in the order shall:
6-5 (1) return all records and files that are subject to
6-6 the expunction order to the court or, if removal is impracticable,
6-7 obliterate all portions of the record or file that identify the
6-8 person [petitioner] and notify the court of its action; and
6-9 (2) delete from its public records all index
6-10 references to the records and files that are subject to the
6-11 expunction order.
6-12 (b) The court may give the person [petitioner] all records
6-13 and files returned to it pursuant to its order.
6-14 (c) If an order of expunction is issued under this article,
6-15 the court records concerning expunction proceedings are not open
6-16 for inspection by anyone except the person who is the subject of
6-17 the order [petitioner] unless the order permits retention of a
6-18 record under Section 4 of this article and the person [petitioner]
6-19 is again arrested for or charged with an offense arising out of the
6-20 transaction for which he was arrested. The clerk of the court
6-21 issuing the order shall obliterate all public references to the
6-22 proceeding and maintain the files or other records in an area not
6-23 open to inspection.
6-24 (d) The clerk of the court shall destroy all the files or
6-25 other records maintained under Subsection (c) of this section on
6-26 the first anniversary of the date the order of expunction is issued
6-27 unless the records or files were released under Subsection (b) of
7-1 this section.
7-2 (e) The clerk shall certify to the court the destruction of
7-3 files or other records under Subsection (d) of this section.
7-4 SECTION 3. Article 55.03, Code of Criminal Procedure, is
7-5 amended to read as follows:
7-6 Art. 55.03. EFFECT OF EXPUNCTION. After entry of an
7-7 expunction order:
7-8 (1) the release, dissemination, or use of the expunged
7-9 records and files for any purpose is prohibited;
7-10 (2) except as provided in Subdivision 3 of this
7-11 article, the person arrested [petitioner] may deny the occurrence
7-12 of the arrest and the existence of the expunction order; and
7-13 (3) the person arrested [petitioner] or any other
7-14 person, when questioned under oath in a criminal proceeding about
7-15 an arrest for which the records have been expunged, may state only
7-16 that the matter in question has been expunged.
7-17 SECTION 4. Article 55.06, Code of Criminal Procedure, is
7-18 amended to read as follows:
7-19 Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. A court
7-20 [person] may not order [use] the expunction of [provisions of this
7-21 chapter to expunge] records relating to the suspension or
7-22 revocation of a driver's license, permit, or privilege to operate a
7-23 motor vehicle except as provided by Section 524.015(b) or
7-24 724.048(c), Transportation Code [in Section 5(d), Article 6687b-1,
7-25 Revised Statutes, or Section 2(r), Chapter 434, Acts of the 61st
7-26 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
7-27 Civil Statutes)].
8-1 SECTION 5. Articles 55.05 and 102.006, Code of Criminal
8-2 Procedure, are repealed.
8-3 SECTION 6. (a) This Act takes effect September 1, 1997, and
8-4 applies only to the expunction of arrest records related to:
8-5 (1) a criminal offense for which an acquittal occurred
8-6 on or after that date;
8-7 (2) a charge for an offense that was dismissed on or
8-8 after that date;
8-9 (3) an offense for which proceedings were dismissed
8-10 under Section 5, Article 42.12, Code of Criminal Procedure, on or
8-11 after that date; or
8-12 (4) an arrest made on or after that date.
8-13 (b) Expunction for an acquittal, dismissal, or arrest that
8-14 occurred before the effective date of this Act is governed by the
8-15 law in effect at that time, and the former law is continued in
8-16 effect for that purpose.
8-17 SECTION 7. The importance of this legislation and the
8-18 crowded condition of the calendars in both houses create an
8-19 emergency and an imperative public necessity that the
8-20 constitutional rule requiring bills to be read on three several
8-21 days in each house be suspended, and this rule is hereby suspended.