By Jones of Dallas H.B. No. 2213
76R7784 GWK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the automatic expunction of certain arrest records
1-3 related to an offense the prosecution of which is barred by
1-4 limitations.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 55.01(a), Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 (a) A person who has been arrested for commission of either
1-9 a felony or misdemeanor is entitled to have all records and files
1-10 relating to the arrest expunged if:
1-11 (1) the person is tried for the offense for which the
1-12 person was arrested and is:
1-13 (A) acquitted by the trial court; or
1-14 (B) convicted and subsequently pardoned; [or]
1-15 (2) [each of the following conditions exist:]
1-16 [(A)] an indictment or information charging the
1-17 person [him] with commission of a felony has not been presented
1-18 against the person before the expiration of the statute of
1-19 limitations [him] for an offense arising out of the transaction for
1-20 which the person [he] was arrested; or
1-21 (3) each of the following conditions exist:
1-22 (A) [or,] if an indictment or information
1-23 charging the person [him] with commission of a felony was
1-24 presented, it has been dismissed and the court finds that it was
2-1 dismissed because the presentment had been made because of mistake,
2-2 false information, or other similar reason indicating absence of
2-3 probable cause at the time of the dismissal to believe the person
2-4 committed the offense or because it was void;
2-5 (B) the person [he] has been released and the
2-6 charge, if any, has not resulted in a final conviction and is no
2-7 longer pending and there was no court ordered community supervision
2-8 [probation] under Article 42.12, Code of Criminal Procedure[, nor a
2-9 conditional discharge under Section 481.109, Health and Safety
2-10 Code]; and
2-11 (C) the person [he] has not been convicted of a
2-12 felony in the five years preceding the date of the arrest.
2-13 SECTION 2. Article 55.02, Code of Criminal Procedure, is
2-14 amended to read as follows:
2-15 Art. 55.02. PROCEDURE FOR EXPUNCTION. Sec. 1. The office
2-16 of the attorney representing the state that would have prosecuted
2-17 the offense against a person entitled to expunction under Article
2-18 55.01(a)(2) shall bring a motion for expunction not later than the
2-19 30th day after the date the statute of limitations in the
2-20 prosecution expires. On the filing of the motion, the trial court
2-21 shall enter an order of expunction not later than the 30th day
2-22 after the date of the filing of the motion by the attorney
2-23 representing the state.
2-24 Sec. 2. (a) A person who is entitled to expunction of
2-25 records and files under Article 55.01(a)(1) or (a)(3) or a person
2-26 who is eligible for expunction of records and files under Article
2-27 55.01(b) [this chapter] may file an ex parte petition for
3-1 expunction in a district court for the county in which the person
3-2 [he] was arrested.
3-3 (b) The petition must be verified and shall include the
3-4 following or an explanation for why one or more of the following is
3-5 not included:
3-6 (1) the petitioner's:
3-7 (A) full name;
3-8 (B) sex;
3-9 (C) race;
3-10 (D) date of birth;
3-11 (E) driver's license number;
3-12 (F) social security number; and
3-13 (G) address at the time of the arrest;
3-14 (2) the offense charged against the petitioner;
3-15 (3) the date the offense charged against the
3-16 petitioner was alleged to have been committed;
3-17 (4) the date the petitioner was arrested;
3-18 (5) the name of the county where the petitioner was
3-19 arrested and if the arrest occurred in a municipality, the name of
3-20 the municipality;
3-21 (6) the name of the agency that arrested the
3-22 petitioner;
3-23 (7) the case number and court of offense; and
3-24 (8) a list of all law enforcement agencies, jails or
3-25 other detention facilities, magistrates, courts, prosecuting
3-26 attorneys, correctional facilities, central state depositories of
3-27 criminal records, and other officials or agencies or other entities
4-1 of this state or of any political subdivision of this state and of
4-2 all central federal depositories of criminal records that the
4-3 petitioner has reason to believe have records or files that are
4-4 subject to expunction.
4-5 (c) [Sec. 2.] The court shall set a hearing on the matter no
4-6 sooner than thirty days from the filing of the petition and shall
4-7 give reasonable notice of the hearing to each official or agency or
4-8 other entity named in the petition by certified mail, return
4-9 receipt requested, and such entity may be represented by the
4-10 attorney responsible for providing such agency with legal
4-11 representation in other matters.
4-12 (d) [Sec. 3. (a)] If the court finds that the petitioner is
4-13 entitled to expunction of any records and files that are the
4-14 subject of the petition, it shall enter an order directing
4-15 expunction.
4-16 Sec. 3. (a) The trial court shall require in an order of
4-17 expunction issued under this article [and directing] any state
4-18 agency that sent information concerning the arrest to a central
4-19 federal depository to request such depository to return all records
4-20 and files subject to the order of expunction. The person who is
4-21 the subject of the expunction order [Any petitioner] or an agency
4-22 protesting the expunction may appeal the court's decision in the
4-23 same manner as in other civil cases. When the order of expunction
4-24 is final, the clerk of the court shall send a certified copy of the
4-25 order by certified mail, return receipt requested, to the
4-26 Department of Public Safety and to each official or agency or other
4-27 entity of this state or of any political subdivision of this state
5-1 named in the order that there is reason to believe has any records
5-2 or files that are subject to the order. The Department of Public
5-3 Safety shall send a copy by certified mail, return receipt
5-4 requested, of the order to any central federal depository of
5-5 criminal records that there is reason to believe has any of the
5-6 records, together with an explanation of the effect of the order
5-7 and a request that the records in possession of the depository,
5-8 including any information with respect to the proceeding under this
5-9 article, be destroyed or returned to the court.
5-10 (b) All returned receipts received by the clerk from notices
5-11 of the hearing and copies of the order shall be maintained in the
5-12 file on the proceedings under this chapter.
5-13 Sec. 4. (a) If the state establishes that the person who is
5-14 the subject of the expunction order [the petitioner] is still
5-15 subject to conviction for an offense arising out of the transaction
5-16 for which the person [he] was arrested because the statute of
5-17 limitations has not run and there is reasonable cause to believe
5-18 that the state may proceed against the person [him] for the
5-19 offense, the court may provide in its order that the law
5-20 enforcement agency and the prosecuting attorney responsible for
5-21 investigating the offense may retain any records and files that are
5-22 necessary to the investigation.
5-23 (b) Unless the person who is the subject of the expunction
5-24 order [the petitioner] is again arrested for or charged with an
5-25 offense arising out of the transaction for which the person [he]
5-26 was arrested, the provisions of Articles 55.03 and 55.04 of this
5-27 code apply to files and records retained under this section.
6-1 Sec. 5. (a) On receipt of the order, each official or
6-2 agency or other entity named in the order shall:
6-3 (1) return all records and files that are subject to
6-4 the expunction order to the court or, if removal is impracticable,
6-5 obliterate all portions of the record or file that identify the
6-6 person who is the subject of the order [petitioner] and notify the
6-7 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 who is the subject of the
6-12 order [petitioner] all records and files returned to it pursuant to
6-13 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 the person [he] was arrested. The clerk of
6-21 the court issuing the order shall obliterate all public references
6-22 to the proceeding and maintain the files or other records in an
6-23 area not 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. (a) The change in law made by this Act applies
7-18 only to the expunction of arrest records and files relating to an
7-19 arrest made on or after the effective date of this Act or relating
7-20 to a criminal offense for which an acquittal occurred on or after
7-21 the effective date of this Act.
7-22 (b) Expunction of arrest records and files relating to an
7-23 arrest made or an acquittal that occurred before the effective date
7-24 of this Act is governed by the law in effect when the arrest was
7-25 made or the acquittal occurred, and the former law is continued in
7-26 effect for that purpose.
7-27 SECTION 5. The importance of this legislation and the
8-1 crowded condition of the calendars in both houses create an
8-2 emergency and an imperative public necessity that the
8-3 constitutional rule requiring bills to be read on three several
8-4 days in each house be suspended, and this rule is hereby suspended,
8-5 and that this Act take effect and be in force from and after its
8-6 passage, and it is so enacted.