By Dutton H.B. No. 2183
76R4489 PEP-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) either [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; or
1-19 (B) [,] 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 [and the court finds that it
1-22 was dismissed because the presentment had been made because of
1-23 mistake, false information, or other similar reason indicating
1-24 absence of probable cause at the time of the dismissal to believe
2-1 the person committed the offense or because it was void;]
2-2 [(B) he has been released and the charge, if
2-3 any, has not resulted in a final conviction and is no longer
2-4 pending and there was no court ordered probation under Article
2-5 42.12, Code of Criminal Procedure, nor a conditional discharge
2-6 under Section 481.109, Health and Safety Code; and]
2-7 [(C) he has not been convicted of a felony in
2-8 the five years preceding the date of the arrest].
2-9 SECTION 2. Article 55.02, Code of Criminal Procedure, is
2-10 amended to read as follows:
2-11 Art. 55.02. PROCEDURE FOR EXPUNCTION
2-12 Sec. 1. (a) The trial court shall enter an order of
2-13 expunction for a person entitled to expunction because:
2-14 (1) the person was acquitted;
2-15 (2) the person was pardoned; or
2-16 (3) the offense was dismissed [A person who is
2-17 entitled to expunction of records and files under this chapter may
2-18 file an ex parte petition for expunction in a district court for
2-19 the county in which he was arrested].
2-20 (b) The attorney representing the state whose office would
2-21 have prosecuted the offense shall bring a motion for expunction for
2-22 a person who was arrested but against whom no indictment,
2-23 complaint, or information was filed before the second anniversary
2-24 of the date of the arrest. On filing of the motion, the trial
2-25 court shall timely enter an order of expunction for the person.
2-26 [The petition must be verified and shall include the following or
2-27 an explanation for why one or more of the following is not
3-1 included:]
3-2 [(1) the petitioner's:]
3-3 [(A) full name;]
3-4 [(B) sex;]
3-5 [(C) race;]
3-6 [(D) date of birth;]
3-7 [(E) driver's license number;]
3-8 [(F) social security number; and]
3-9 [(G) address at the time of the arrest;]
3-10 [(2) the offense charged against the petitioner;]
3-11 [(3) the date the offense charged against the
3-12 petitioner was alleged to have been committed;]
3-13 [(4) the date the petitioner was arrested;]
3-14 [(5) the name of the county where the petitioner was
3-15 arrested and if the arrest occurred in a municipality, the name of
3-16 the municipality;]
3-17 [(6) the name of the agency that arrested the
3-18 petitioner;]
3-19 [(7) the case number and court of offense; and]
3-20 [(8) a list of all law enforcement agencies, jails or
3-21 other detention facilities, magistrates, courts, prosecuting
3-22 attorneys, correctional facilities, central state depositories of
3-23 criminal records, and other officials or agencies or other entities
3-24 of this state or of any political subdivision of this state and of
3-25 all central federal depositories of criminal records that the
3-26 petitioner has reason to believe have records or files that are
3-27 subject to expunction.]
4-1 Sec. 2. The court shall enter the order of expunction not
4-2 later [set a hearing on the matter no sooner] than the 30th day
4-3 after [thirty days from] the date of acquittal, pardon, dismissal,
4-4 or filing of the motion by the attorney representing the state.
4-5 The court shall include in the order a listing of each official,
4-6 agency, or other entity of this state or a political subdivision of
4-7 this state that there is reason to believe has any records or
4-8 files that are subject to the order [filing of the petition and
4-9 shall give reasonable notice of the hearing to each official or
4-10 agency or other entity named in the petition by certified mail,
4-11 return receipt requested, and such entity may be represented by the
4-12 attorney responsible for providing such agency with legal
4-13 representation in other matters].
4-14 Sec. 3. (a) [If the court finds that the petitioner is
4-15 entitled to expunction of any records and files that are the
4-16 subject of the petition, it shall enter an order directing
4-17 expunction and directing any state agency that sent information
4-18 concerning the arrest to a central federal depository to request
4-19 such depository to return all records and files subject to the
4-20 order of expunction. Any petitioner or agency protesting the
4-21 expunction may appeal the court's decision in the same manner as in
4-22 other civil cases.] When the order of expunction is final, the
4-23 clerk of the court shall send a certified copy of the order by
4-24 certified mail, return receipt requested, to the Department of
4-25 Public Safety and to each official or agency or other entity of
4-26 this state or of any political subdivision of this state named in
4-27 the order [that there is reason to believe has any records or files
5-1 that are subject to the order]. The Department of Public Safety
5-2 shall send a copy by certified mail, return receipt requested, of
5-3 the order to any central federal depository of criminal records
5-4 that there is reason to believe has any of the records, together
5-5 with an explanation of the effect of the order and a request that
5-6 the records in possession of the depository, including any
5-7 information with respect to the proceeding under this article, be
5-8 destroyed or returned to the court.
5-9 (b) All returned receipts received by the clerk from notices
5-10 of the hearing and copies of the order shall be maintained in the
5-11 file on the proceedings under this chapter.
5-12 Sec. 4. (a) If the state establishes that the person
5-13 [petitioner] is still subject to conviction for an offense arising
5-14 out of the transaction for which he was arrested because the
5-15 statute of limitations has not run and there is reasonable cause
5-16 to believe that the state may proceed against him for the offense,
5-17 the court may provide in its order that the law enforcement agency
5-18 and the prosecuting attorney responsible for investigating the
5-19 offense may retain any records and files that are necessary to the
5-20 investigation.
5-21 (b) Unless the person [petitioner] is again arrested for or
5-22 charged with an offense arising out of the transaction for which he
5-23 was arrested, the provisions of Articles 55.03 and 55.04 of this
5-24 code apply to files and records retained under this section.
5-25 Sec. 5. (a) On receipt of the order, each official or
5-26 agency or other entity named in the order shall:
5-27 (1) return all records and files that are subject to
6-1 the expunction order to the court or, if removal is impracticable,
6-2 obliterate all portions of the record or file that identify the
6-3 person [petitioner] and notify the court of its action; and
6-4 (2) delete from its public records all index
6-5 references to the records and files that are subject to the
6-6 expunction order.
6-7 (b) The court may give the person [petitioner] all records
6-8 and files returned to it pursuant to its order.
6-9 (c) If an order of expunction is issued under this article,
6-10 the court records concerning expunction proceedings are not open
6-11 for inspection by anyone except the person who is the subject of
6-12 the order [petitioner] unless the order permits retention of a
6-13 record under Section 4 of this article and the person [petitioner]
6-14 is again arrested for or charged with an offense arising out of the
6-15 transaction for which he was arrested. The clerk of the court
6-16 issuing the order shall obliterate all public references to the
6-17 proceeding and maintain the files or other records in an area not
6-18 open to inspection.
6-19 (d) The clerk of the court shall destroy all the files or
6-20 other records maintained under Subsection (c) of this section on
6-21 the first anniversary of the date the order of expunction is issued
6-22 unless the records or files were released under Subsection (b) of
6-23 this section.
6-24 (e) The clerk shall certify to the court the destruction of
6-25 files or other records under Subsection (d) of this section.
6-26 SECTION 3. Article 55.03, Code of Criminal Procedure, is
6-27 amended to read as follows:
7-1 Art. 55.03. EFFECT OF EXPUNCTION. After entry of an
7-2 expunction order:
7-3 (1) the release, dissemination, or use of the expunged
7-4 records and files for any purpose is prohibited;
7-5 (2) except as provided in Subdivision 3 of this
7-6 article, the person arrested [petitioner] may deny the occurrence
7-7 of the arrest and the existence of the expunction order; and
7-8 (3) the person arrested [petitioner] or any other
7-9 person, when questioned under oath in a criminal proceeding about
7-10 an arrest for which the records have been expunged, may state only
7-11 that the matter in question has been expunged.
7-12 SECTION 4. Article 55.06, Code of Criminal Procedure, is
7-13 amended to read as follows:
7-14 Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. A court
7-15 [person] may not order [use] the expunction of [provisions of this
7-16 chapter to expunge] records relating to the suspension or
7-17 revocation of a driver's license, permit, or privilege to operate a
7-18 motor vehicle except as provided by Section 524.015(b) or
7-19 724.048(c), Transportation Code [in Section 5(d), Article 6687b-1,
7-20 Revised Statutes, or Section 2(r), Chapter 434, Acts of the 61st
7-21 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
7-22 Civil Statutes)].
7-23 SECTION 5. Articles 55.05 and 102.006, Code of Criminal
7-24 Procedure, are repealed.
7-25 SECTION 6. (a) This Act takes effect September 1, 1999, and
7-26 applies only to the expunction of arrest records related to:
7-27 (1) a criminal offense for which an acquittal occurred
8-1 on or after that date;
8-2 (2) a charge for an offense that was dismissed on or
8-3 after that date; or
8-4 (3) an arrest made on or after that date.
8-5 (b) Expunction for an acquittal, dismissal, or arrest that
8-6 occurred before the effective date of this Act is governed by the
8-7 law in effect at that time, and the former law is continued in
8-8 effect for that purpose.
8-9 SECTION 7. The importance of this legislation and the
8-10 crowded condition of the calendars in both houses create an
8-11 emergency and an imperative public necessity that the
8-12 constitutional rule requiring bills to be read on three several
8-13 days in each house be suspended, and this rule is hereby suspended.