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.