By West S.B. No. 840
76R5752 JMC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the automatic expunction of certain arrest 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) [each of the following conditions exist:]
1-14 [(A)] an indictment or information charging the
1-15 person [him] with commission of a felony has not been presented
1-16 against the person before the expiration of the statute of
1-17 limitations [him] for an offense arising out of the transaction for
1-18 which the person [he] was arrested; or
1-19 (3) each of the following conditions exist:
1-20 (A) [or,] if an indictment or information
1-21 charging the person [him] with commission of a felony was
1-22 presented, it has been dismissed and the court finds that it was
1-23 dismissed because the presentment had been made because of mistake,
1-24 false information, or other similar reason indicating absence of
2-1 probable cause at the time of the dismissal to believe the person
2-2 committed the offense or because it was void;
2-3 (B) the person [he] has been released and the
2-4 charge, if any, has not resulted in a final conviction and is no
2-5 longer pending and there was no court ordered community supervision
2-6 [probation] under Article 42.12, Code of Criminal Procedure[, nor a
2-7 conditional discharge under Section 481.109, Health and Safety
2-8 Code]; and
2-9 (C) the person [he] has not been convicted of a
2-10 felony in the five years preceding the date of the arrest.
2-11 SECTION 2. Article 55.02, Code of Criminal Procedure, is
2-12 amended to read as follows:
2-13 Art. 55.02. PROCEDURE FOR EXPUNCTION. Sec. 1. (a) The
2-14 trial court shall enter an order of expunction for a person
2-15 entitled to expunction under Article 55.01(a)(1)(A) not later than
2-16 the 30th day after the date of the acquittal.
2-17 (b) The trial court in which a person entitled to expunction
2-18 under Article 55.01(a)(1)(B) was convicted shall enter an order of
2-19 expunction for the person not later than the 30th day after the
2-20 date the person is pardoned.
2-21 (c) The office of the attorney representing the state that
2-22 would have prosecuted the offense against a person entitled to
2-23 expunction under Article 55.01(a)(2) shall bring a motion for
2-24 expunction not later than the 30th day after the date the statute
2-25 of limitations in the prosecution expires. On the filing of the
2-26 motion, the trial court shall enter an order of expunction not
2-27 later than the 30th day after the date of the filing of the motion
3-1 by the attorney representing the state.
3-2 Sec. 2. (a) A person who is entitled to expunction of
3-3 records and files under Article 55.01(a)(3) or a person who is
3-4 eligible for expunction of records and files under Article
3-5 55.01(b) [this chapter] may file an ex parte petition for
3-6 expunction in a district court for the county in which the person
3-7 [he] was arrested.
3-8 (b) The petition must be verified and shall include the
3-9 following or an explanation for why one or more of the following is
3-10 not included:
3-11 (1) the petitioner's:
3-12 (A) full name;
3-13 (B) sex;
3-14 (C) race;
3-15 (D) date of birth;
3-16 (E) driver's license number;
3-17 (F) social security number; and
3-18 (G) address at the time of the arrest;
3-19 (2) the offense charged against the petitioner;
3-20 (3) the date the offense charged against the
3-21 petitioner was alleged to have been committed;
3-22 (4) the date the petitioner was arrested;
3-23 (5) the name of the county where the petitioner was
3-24 arrested and if the arrest occurred in a municipality, the name of
3-25 the municipality;
3-26 (6) the name of the agency that arrested the
3-27 petitioner;
4-1 (7) the case number and court of offense; and
4-2 (8) a list of all law enforcement agencies, jails or
4-3 other detention facilities, magistrates, courts, prosecuting
4-4 attorneys, correctional facilities, central state depositories of
4-5 criminal records, and other officials or agencies or other entities
4-6 of this state or of any political subdivision of this state and of
4-7 all central federal depositories of criminal records that the
4-8 petitioner has reason to believe have records or files that are
4-9 subject to expunction.
4-10 (c) [Sec. 2.] The court shall set a hearing on the matter no
4-11 sooner than thirty days from the filing of the petition and shall
4-12 give reasonable notice of the hearing to each official or agency or
4-13 other entity named in the petition by certified mail, return
4-14 receipt requested, and such entity may be represented by the
4-15 attorney responsible for providing such agency with legal
4-16 representation in other matters.
4-17 (d) [Sec. 3. (a)] If the court finds that the petitioner is
4-18 entitled to expunction of any records and files that are the
4-19 subject of the petition, it shall enter an order directing
4-20 expunction.
4-21 Sec. 3. (a) The trial court shall require in an order of
4-22 expunction issued under this article [and directing] any state
4-23 agency that sent information concerning the arrest to a central
4-24 federal depository to request such depository to return all records
4-25 and files subject to the order of expunction. The person who is
4-26 the subject of the expunction order [Any petitioner] or an agency
4-27 protesting the expunction may appeal the court's decision in the
5-1 same manner as in other civil cases. When the order of expunction
5-2 is final, the clerk of the court shall send a certified copy of the
5-3 order by certified mail, return receipt requested, to the
5-4 Department of Public Safety and to each official or agency or other
5-5 entity of this state or of any political subdivision of this state
5-6 named in the order that there is reason to believe has any records
5-7 or files that are subject to the order. The Department of Public
5-8 Safety shall send a copy by certified mail, return receipt
5-9 requested, of the order to any central federal depository of
5-10 criminal records that there is reason to believe has any of the
5-11 records, together with an explanation of the effect of the order
5-12 and a request that the records in possession of the depository,
5-13 including any information with respect to the proceeding under this
5-14 article, be destroyed or returned to the court.
5-15 (b) All returned receipts received by the clerk from notices
5-16 of the hearing and copies of the order shall be maintained in the
5-17 file on the proceedings under this chapter.
5-18 Sec. 4. (a) If the state establishes that the person who is
5-19 the subject of the expunction order [the petitioner] is still
5-20 subject to conviction for an offense arising out of the transaction
5-21 for which the person [he] was arrested because the statute of
5-22 limitations has not run and there is reasonable cause to believe
5-23 that the state may proceed against the person [him] for the
5-24 offense, the court may provide in its order that the law
5-25 enforcement agency and the prosecuting attorney responsible for
5-26 investigating the offense may retain any records and files that are
5-27 necessary to the investigation.
6-1 (b) Unless the person who is the subject of the expunction
6-2 order [the petitioner] is again arrested for or charged with an
6-3 offense arising out of the transaction for which the person [he]
6-4 was arrested, the provisions of Articles 55.03 and 55.04 of this
6-5 code apply to files and records retained under this section.
6-6 Sec. 5. (a) On receipt of the order, each official or
6-7 agency or other entity named in the order shall:
6-8 (1) return all records and files that are subject to
6-9 the expunction order to the court or, if removal is impracticable,
6-10 obliterate all portions of the record or file that identify the
6-11 person who is the subject of the order [petitioner] and notify the
6-12 court of its action; and
6-13 (2) delete from its public records all index
6-14 references to the records and files that are subject to the
6-15 expunction order.
6-16 (b) The court may give the person who is the subject of the
6-17 order [petitioner] all records and files returned to it pursuant to
6-18 its order.
6-19 (c) If an order of expunction is issued under this article,
6-20 the court records concerning expunction proceedings are not open
6-21 for inspection by anyone except the person who is the subject of
6-22 the order [petitioner] unless the order permits retention of a
6-23 record under Section 4 of this article and the person [petitioner]
6-24 is again arrested for or charged with an offense arising out of the
6-25 transaction for which the person [he] was arrested. The clerk of
6-26 the court issuing the order shall obliterate all public references
6-27 to the proceeding and maintain the files or other records in an
7-1 area not open to inspection.
7-2 (d) The clerk of the court shall destroy all the files or
7-3 other records maintained under Subsection (c) of this section on
7-4 the first anniversary of the date the order of expunction is issued
7-5 unless the records or files were released under Subsection (b) of
7-6 this section.
7-7 (e) The clerk shall certify to the court the destruction of
7-8 files or other records under Subsection (d) of this section.
7-9 SECTION 3. Article 55.03, Code of Criminal Procedure, is
7-10 amended to read as follows:
7-11 Art. 55.03. EFFECT OF EXPUNCTION. After entry of an
7-12 expunction order:
7-13 (1) the release, dissemination, or use of the expunged
7-14 records and files for any purpose is prohibited;
7-15 (2) except as provided in Subdivision 3 of this
7-16 article, the person arrested [petitioner] may deny the occurrence
7-17 of the arrest and the existence of the expunction order; and
7-18 (3) the person arrested [petitioner] or any other
7-19 person, when questioned under oath in a criminal proceeding about
7-20 an arrest for which the records have been expunged, may state only
7-21 that the matter in question has been expunged.
7-22 SECTION 4. Article 55.06, Code of Criminal Procedure, is
7-23 amended to read as follows:
7-24 Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. Records [A
7-25 person may not use the provisions of this chapter to expunge
7-26 records] relating to the suspension or revocation of a driver's
7-27 license, permit, or privilege to operate a motor vehicle may not be
8-1 expunged under this chapter except as provided in Section 524.015,
8-2 Transportation Code [5(d), Article 6687b-1, Revised Statutes], or
8-3 Section 724.048 of that code [2(r), Chapter 434, Acts of the 61st
8-4 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
8-5 Civil Statutes)].
8-6 SECTION 5. (a) The change in law made by this Act applies
8-7 only to the expunction of arrest records and files relating to an
8-8 arrest made on or after the effective date of this Act or relating
8-9 to a criminal offense for which an acquittal occurred on or after
8-10 the effective date of this Act.
8-11 (b) Expunction of arrest records and files relating to an
8-12 arrest made or an acquittal that occurred before the effective date
8-13 of this Act is governed by the law in effect when the arrest was
8-14 made or the acquittal occurred, and the former law is continued in
8-15 effect for that purpose.
8-16 SECTION 6. The importance of this legislation and the
8-17 crowded condition of the calendars in both houses create an
8-18 emergency and an imperative public necessity that the
8-19 constitutional rule requiring bills to be read on three several
8-20 days in each house be suspended, and this rule is hereby suspended,
8-21 and that this Act take effect and be in force from and after its
8-22 passage, and it is so enacted.