By: West S.B. No. 840
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the automatic expunction of certain arrest records.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Article 55.01, Code of Criminal Procedure, is
1-4 amended to read as follows:
1-5 Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been
1-6 arrested for commission of either a felony or misdemeanor is
1-7 entitled to have all records and files relating to the arrest
1-8 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, except as
1-12 provided by Subsection (c) of this section; or
1-13 (B) convicted and subsequently pardoned; or
1-14 (2) each of the following conditions exist:
1-15 (A) an indictment or information charging the
1-16 person [him] with commission of a felony has not been presented
1-17 against the person [him] for an offense arising out of the
1-18 transaction for which the person [he] was arrested or, if an
1-19 indictment or information charging the person [him] with commission
1-20 of a felony was presented, it has been dismissed and the court
1-21 finds that it was dismissed because the presentment had been made
1-22 because of mistake, false information, or other similar reason
1-23 indicating absence of probable cause at the time of the dismissal
1-24 to believe the person committed the offense or because it was void;
2-1 (B) the person [he] has been released and the
2-2 charge, if any, has not resulted in a final conviction and is no
2-3 longer pending and there was no court ordered community supervision
2-4 [probation] under Article 42.12[, Code of Criminal Procedure, nor a
2-5 conditional discharge under Section 481.109, Health and Safety
2-6 Code]; and
2-7 (C) the person [he] has not been convicted of a
2-8 felony in the five years preceding the date of the arrest.
2-9 (b) Except as provided by Subsection (c) of this section, a
2-10 [A] district court may expunge all records and files relating to
2-11 the arrest of a person who has been arrested for commission of a
2-12 felony or misdemeanor under the procedure established under Article
2-13 55.02 of this code if the person is:
2-14 (1) tried for the offense for which the person was
2-15 arrested;
2-16 (2) convicted of the offense; and
2-17 (3) acquitted by the court of criminal appeals.
2-18 (c) A court may not order the expunction of records and
2-19 files relating to an arrest for an offense for which a person is
2-20 subsequently acquitted, whether by the trial court or the court of
2-21 criminal appeals, if the offense for which the person was acquitted
2-22 arose out of a criminal episode, as defined by Section 3.01, Penal
2-23 Code, and the person was convicted of or remains subject to
2-24 prosecution for at least one other offense occurring during the
2-25 criminal episode.
2-26 SECTION 2. Article 55.02, Code of Criminal Procedure, is
3-1 amended to read as follows:
3-2 Art. 55.02. PROCEDURE FOR EXPUNCTION. Sec. 1. At the
3-3 request of the defendant and after notice to the state and a
3-4 hearing, the trial court presiding over the case in which the
3-5 defendant was acquitted shall enter an order of expunction for a
3-6 person entitled to expunction under Article 55.01(a)(1)(A) not
3-7 later than the 30th day after the date of the acquittal. Upon
3-8 acquittal, the court shall advise the defendant of the right to
3-9 expunction. The defendant shall provide to the court all of the
3-10 information required in a petition for expunction under Section
3-11 2(b).
3-12 Sec. 2. (a) A person who is entitled to expunction of
3-13 records and files under Article 55.01(a)(1)(B) or 55.01(a)(2) or a
3-14 person who is eligible for expunction of records and files under
3-15 Article 55.01(b) [this chapter] may file an ex parte petition for
3-16 expunction in a district court for the county in which the person
3-17 [he] was arrested or in the county where the offense was alleged to
3-18 have occurred.
3-19 (b) The petition must be verified and shall include the
3-20 following or an explanation for why one or more of the following is
3-21 not included:
3-22 (1) the petitioner's:
3-23 (A) full name;
3-24 (B) sex;
3-25 (C) race;
3-26 (D) date of birth;
4-1 (E) driver's license number;
4-2 (F) social security number; and
4-3 (G) address at the time of the arrest;
4-4 (2) the offense charged against the petitioner;
4-5 (3) the date the offense charged against the
4-6 petitioner was alleged to have been committed;
4-7 (4) the date the petitioner was arrested;
4-8 (5) the name of the county where the petitioner was
4-9 arrested and if the arrest occurred in a municipality, the name of
4-10 the municipality;
4-11 (6) the name of the agency that arrested the
4-12 petitioner;
4-13 (7) the case number and court of offense; and
4-14 (8) a list of all law enforcement agencies, jails or
4-15 other detention facilities, magistrates, courts, prosecuting
4-16 attorneys, correctional facilities, central state depositories of
4-17 criminal records, and other officials or agencies or other entities
4-18 of this state or of any political subdivision of this state and of
4-19 all central federal depositories of criminal records that the
4-20 petitioner has reason to believe have records or files that are
4-21 subject to expunction.
4-22 (c) [Sec. 2.] The court shall set a hearing on the matter no
4-23 sooner than thirty days from the filing of the petition and shall
4-24 give reasonable notice of the hearing to each official or agency or
4-25 other entity named in the petition by certified mail, return
4-26 receipt requested, and such entity may be represented by the
5-1 attorney responsible for providing such agency with legal
5-2 representation in other matters.
5-3 (d) [Sec. 3. (a)] If the court finds that the petitioner is
5-4 entitled to expunction of any records and files that are the
5-5 subject of the petition, it shall enter an order directing
5-6 expunction.
5-7 Sec. 3. (a) In an order of expunction issued under this
5-8 article, the trial court shall require [and directing] any state
5-9 agency that sent information concerning the arrest to a central
5-10 federal depository to request such depository to return all records
5-11 and files subject to the order of expunction. The person who is
5-12 the subject of the expunction order [Any petitioner] or an agency
5-13 protesting the expunction may appeal the court's decision in the
5-14 same manner as in other civil cases.
5-15 (b) The order of expunction entered by the trial court shall
5-16 have attached and incorporate by reference a copy of the judgment
5-17 of acquittal and shall include:
5-18 (1) the following information on the person who is the
5-19 subject of the expunction order:
5-20 (A) full name;
5-21 (B) sex;
5-22 (C) race;
5-23 (D) date of birth;
5-24 (E) driver's license number; and
5-25 (F) social security number;
5-26 (2) the offense charged against the person who is the
6-1 subject of the expunction order;
6-2 (3) the date the person who is the subject of the
6-3 expunction order was arrested;
6-4 (4) the case number and court of offense; and
6-5 (5) the tracking incident number (TRN) assigned to the
6-6 individual incident of arrest under Article 60.07(b)(1) by the
6-7 Department of Public Safety.
6-8 (c) When the order of expunction is final, the clerk of the
6-9 court shall send a certified copy of the order by certified mail,
6-10 return receipt requested, to the Crime Records Service of the
6-11 Department of Public Safety and to each official or agency or other
6-12 entity of this state or of any political subdivision of this state
6-13 designated by the person who is the [named in the order that there
6-14 is reason to believe has any records or files that are] subject of
6-15 [to] the order. The Department of Public Safety shall notify [send
6-16 a copy by certified mail, return receipt requested, of the order
6-17 to] any central federal depository of criminal records by any
6-18 means, including electronic transmission, of the order [that there
6-19 is reason to believe has any of the records, together] with an
6-20 explanation of the effect of the order and a request that the
6-21 records in possession of the depository, including any information
6-22 with respect to the order [proceeding under this article], be
6-23 destroyed or returned to the court.
6-24 (d) [(b)] All returned receipts received by the clerk from
6-25 notices of the hearing and copies of the order shall be maintained
6-26 in the file on the proceedings under this chapter.
7-1 Sec. 4. (a) If the state establishes that the person who is
7-2 the subject of an expunction order [the petitioner] is still
7-3 subject to conviction for an offense arising out of the transaction
7-4 for which the person [he] was arrested because the statute of
7-5 limitations has not run and there is reasonable cause to believe
7-6 that the state may proceed against the person [him] for the
7-7 offense, the court may provide in its order that the law
7-8 enforcement agency and the prosecuting attorney responsible for
7-9 investigating the offense may retain any records and files that are
7-10 necessary to the investigation. In the case of a person who is the
7-11 subject of an expunction order on the basis of an acquittal, the
7-12 court may provide in the expunction order that the law enforcement
7-13 agency and the prosecuting attorney retain records and files
7-14 necessary to conduct a subsequent investigation and prosecution of
7-15 a person other than the person who is the subject of the expunction
7-16 order.
7-17 (b) Unless the person who is the subject of the expunction
7-18 order [the petitioner] is again arrested for or charged with an
7-19 offense arising out of the transaction for which the person [he]
7-20 was arrested or unless there is a subsequent investigation and
7-21 prosecution of a person other than the person who is the subject of
7-22 the expunction order, the provisions of Articles 55.03 and 55.04 of
7-23 this code apply to files and records retained under this section.
7-24 Sec. 5. (a) On receipt of the order, each official or
7-25 agency or other entity named in the order shall:
7-26 (1) return all records and files that are subject to
8-1 the expunction order to the court or, if removal is impracticable,
8-2 obliterate all portions of the record or file that identify the
8-3 person who is the subject of the order [petitioner] and notify the
8-4 court of its action; and
8-5 (2) delete from its public records all index
8-6 references to the records and files that are subject to the
8-7 expunction order.
8-8 (b) Except in the case of a person who is the subject of an
8-9 expunction order on the basis of an acquittal, the [The] court may
8-10 give the person who is the subject of the order [petitioner] all
8-11 records and files returned to it pursuant to its order.
8-12 (c) If an order of expunction is issued under this article,
8-13 the court records concerning expunction proceedings are not open
8-14 for inspection by anyone except the person who is the subject of
8-15 the order [petitioner] unless the order permits retention of a
8-16 record under Section 4 of this article and the person [petitioner]
8-17 is again arrested for or charged with an offense arising out of the
8-18 transaction for which the person [he] was arrested or unless there
8-19 is a subsequent investigation and prosecution of a person other
8-20 than the person who is the subject of the expunction order. The
8-21 clerk of the court issuing the order shall obliterate all public
8-22 references to the proceeding and maintain the files or other
8-23 records in an area not open to inspection.
8-24 (d) Except in the case of a person who is the subject of an
8-25 expunction order on the basis of an acquittal, the [The] clerk of
8-26 the court shall destroy all the files or other records maintained
9-1 under Subsection (c) of this section on the first anniversary of
9-2 the date the order of expunction is issued unless the records or
9-3 files were released under Subsection (b) of this section.
9-4 (e) The clerk shall certify to the court the destruction of
9-5 files or other records under Subsection (d) of this section.
9-6 SECTION 3. Article 55.03, Code of Criminal Procedure, is
9-7 amended to read as follows:
9-8 Art. 55.03. EFFECT OF EXPUNCTION. After entry of an
9-9 expunction order:
9-10 (1) the release, dissemination, or use of the expunged
9-11 records and files for any purpose is prohibited;
9-12 (2) except as provided in Subdivision 3 of this
9-13 article, the person arrested [petitioner] may deny the occurrence
9-14 of the arrest and the existence of the expunction order; and
9-15 (3) the person arrested [petitioner] or any other
9-16 person, when questioned under oath in a criminal proceeding about
9-17 an arrest for which the records have been expunged, may state only
9-18 that the matter in question has been expunged.
9-19 SECTION 4. Article 55.06, Code of Criminal Procedure, is
9-20 amended to read as follows:
9-21 Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. Records [A
9-22 person may not use the provisions of this chapter to expunge
9-23 records] relating to the suspension or revocation of a driver's
9-24 license, permit, or privilege to operate a motor vehicle may not be
9-25 expunged under this chapter except as provided in Section 524.015,
9-26 Transportation Code [5(d), Article 6687b-1, Revised Statutes], or
10-1 Section 724.048 of that code [2(r), Chapter 434, Acts of the 61st
10-2 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
10-3 Civil Statutes)].
10-4 SECTION 5. (a) The change in law made by this Act applies
10-5 only to the expunction of arrest records and files relating to an
10-6 arrest made on or after the effective date of this Act or relating
10-7 to a criminal offense for which an acquittal occurred on or after
10-8 the effective date of this Act.
10-9 (b) Expunction of arrest records and files relating to an
10-10 arrest made or an acquittal that occurred before the effective date
10-11 of this Act is governed by the law in effect when the arrest was
10-12 made or the acquittal occurred, and the former law is continued in
10-13 effect for that purpose.
10-14 SECTION 6. This Act takes effect only if a specific
10-15 appropriation for the implementation of this Act is provided in
10-16 H.B. No. 1 (General Appropriations Act), Acts of the 76th
10-17 Legislature, Regular Session, 1999. If no specific appropriation
10-18 is provided in H.B. No. 1, the General Appropriations Act, this Act
10-19 has no effect.
10-20 SECTION 7. The importance of this legislation and the
10-21 crowded condition of the calendars in both houses create an
10-22 emergency and an imperative public necessity that the
10-23 constitutional rule requiring bills to be read on three several
10-24 days in each house be suspended, and this rule is hereby suspended,
10-25 and that this Act take effect and be in force from and after its
10-26 passage, and it is so enacted.