1-1     By:  West                                              S.B. No. 840
 1-2           (In the Senate - Filed March 3, 1999; March 4, 1999, read
 1-3     first time and referred to Committee on Criminal Justice;
 1-4     April 12, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 7, Nays 0; April 12, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 840                     By:  West
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the automatic expunction of certain arrest records.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Article 55.01, Code of Criminal Procedure, is
1-13     amended to read as follows:
1-14           Art. 55.01.  RIGHT TO EXPUNCTION.  (a)  A person who has been
1-15     arrested for commission of either a felony or misdemeanor is
1-16     entitled to have all records and files relating to the arrest
1-17     expunged if:
1-18                 (1)  the person is tried for the offense for which the
1-19     person was arrested and is:
1-20                       (A)  acquitted by the trial court, except as
1-21     provided by Subsection (c) of this section; or
1-22                       (B)  convicted and subsequently pardoned; or
1-23                 (2)  each of the following conditions exist:
1-24                       (A)  an indictment or information charging the
1-25     person [him] with commission of a felony has not been presented
1-26     against the person [him] for an offense arising out of the
1-27     transaction for which the person [he] was arrested or, if an
1-28     indictment or information charging the person [him] with commission
1-29     of a felony was presented, it has been dismissed and the court
1-30     finds that it was dismissed because the presentment had been made
1-31     because of mistake, false information, or other similar reason
1-32     indicating absence of probable cause at the time of the dismissal
1-33     to believe the person committed the offense or because it was void;
1-34                       (B)  the person [he] has been released and the
1-35     charge, if any, has not resulted in a final conviction and is no
1-36     longer pending and there was no court ordered community supervision
1-37     [probation] under Article 42.12[, Code of Criminal Procedure, nor a
1-38     conditional discharge under Section 481.109, Health and Safety
1-39     Code]; and
1-40                       (C)  the person [he] has not been convicted of a
1-41     felony in the five years preceding the date of the arrest.
1-42           (b)  Except as provided by Subsection (c) of this section, a
1-43     [A] district court may expunge all records and files relating to
1-44     the arrest of a person who has been arrested for commission of a
1-45     felony or misdemeanor under the procedure established under Article
1-46     55.02 of this code if the person is:
1-47                 (1)  tried for the offense for which the person was
1-48     arrested;
1-49                 (2)  convicted of the offense; and
1-50                 (3)  acquitted by the court of criminal appeals.
1-51           (c)  A court may not order the expunction of records and
1-52     files relating to an arrest for an offense for which a person is
1-53     subsequently acquitted, whether by the trial court or the court of
1-54     criminal appeals, if the offense for which the person was acquitted
1-55     arose out of a criminal episode, as defined by Section 3.01, Penal
1-56     Code, and the person was convicted of or remains subject to
1-57     prosecution for at least one other offense occurring during the
1-58     criminal episode.
1-59           SECTION 2.  Article 55.02, Code of Criminal Procedure, is
1-60     amended to read as follows:
1-61           Art. 55.02.  PROCEDURE FOR EXPUNCTION.  Sec. 1.  At the
1-62     request of the defendant and after notice to the state and a
1-63     hearing, the trial court presiding over the case in which the
1-64     defendant was acquitted shall enter an order of expunction for a
 2-1     person entitled to expunction under Article 55.01(a)(1)(A) not
 2-2     later than the 30th day after the date of the acquittal.  Upon
 2-3     acquittal, the court shall advise the defendant of the right to
 2-4     expunction.  The defendant shall provide to the court all of the
 2-5     information required in a petition for expunction under Section
 2-6     2(b).
 2-7           Sec. 2.  (a)  A person who is entitled to expunction of
 2-8     records and files under Article 55.01(a)(1)(B) or 55.01(a)(2) or a
 2-9     person who is eligible for expunction of records and files under
2-10     Article 55.01(b) [this chapter] may file an ex parte petition for
2-11     expunction in a district court for the county in which the person
2-12     [he] was arrested or in the county where the offense was alleged to
2-13     have occurred.
2-14           (b)  The petition must be verified and shall include the
2-15     following or an explanation for why one or more of the following is
2-16     not included:
2-17                 (1)  the petitioner's:
2-18                       (A)  full name;
2-19                       (B)  sex;
2-20                       (C)  race;
2-21                       (D)  date of birth;
2-22                       (E)  driver's license number;
2-23                       (F)  social security number; and
2-24                       (G)  address at the time of the arrest;
2-25                 (2)  the offense charged against the petitioner;
2-26                 (3)  the date the offense charged against the
2-27     petitioner was alleged to have been committed;
2-28                 (4)  the date the petitioner was arrested;
2-29                 (5)  the name of the county where the petitioner was
2-30     arrested and if the  arrest occurred in a municipality, the name of
2-31     the municipality;
2-32                 (6)  the name of the agency that arrested the
2-33     petitioner;
2-34                 (7)  the case number and court of offense; and
2-35                 (8)  a list of all law enforcement agencies, jails or
2-36     other detention facilities, magistrates, courts, prosecuting
2-37     attorneys, correctional facilities, central state depositories of
2-38     criminal records, and other officials or agencies or other entities
2-39     of this state or of any political subdivision of this state and of
2-40     all central federal depositories of criminal records that the
2-41     petitioner has reason to believe have records or files that are
2-42     subject to expunction.
2-43           (c) [Sec. 2.]  The court shall set a hearing on the matter no
2-44     sooner than thirty days from the filing of the petition and shall
2-45     give reasonable notice of the hearing to each official or agency or
2-46     other entity named in the petition by certified mail, return
2-47     receipt requested, and such entity may be represented by the
2-48     attorney responsible for providing such agency with legal
2-49     representation in other matters.
2-50           (d) [Sec. 3.  (a)]  If the court finds that the petitioner is
2-51     entitled to expunction of any records and files that are the
2-52     subject of the petition, it shall enter an order directing
2-53     expunction.
2-54           Sec. 3.  (a)  The trial court shall require in an order of
2-55     expunction issued under this article [and directing] any state
2-56     agency that sent information concerning the arrest to a central
2-57     federal depository to request such depository to return all records
2-58     and files subject to the order of expunction.  The person who is
2-59     the subject of the expunction order [Any petitioner] or an agency
2-60     protesting the expunction may appeal the court's decision in the
2-61     same manner as in other civil cases.  When the order of expunction
2-62     is final, the clerk of the court shall send a certified copy of the
2-63     order by certified mail, return receipt requested, to the
2-64     Department of Public Safety and to each official or agency or other
2-65     entity of this state or of any political subdivision of this state
2-66     named in the order that there is reason to believe has any records
2-67     or files that are subject to the order.  The Department of Public
2-68     Safety shall send a copy by certified mail, return receipt
2-69     requested, of the order to any central federal depository of
 3-1     criminal records that there is reason to believe has any of the
 3-2     records, together with an explanation of the effect of the order
 3-3     and a request that the records in possession of the depository,
 3-4     including any information with respect to the proceeding under this
 3-5     article, be destroyed or returned to the court.
 3-6           (b)  All returned receipts received by the clerk from notices
 3-7     of the hearing and copies of the order shall be maintained in the
 3-8     file on the proceedings under this chapter.
 3-9           Sec. 4.  (a)  If the state establishes that the person who is
3-10     the subject of an expunction order [the petitioner] is still
3-11     subject to conviction for an offense arising out of the transaction
3-12     for which the person [he] was arrested because the statute of
3-13     limitations has not run and there is reasonable cause to believe
3-14     that the state may proceed against the person [him] for the
3-15     offense, the court may provide in its order that the law
3-16     enforcement agency and the prosecuting attorney responsible for
3-17     investigating the offense may retain any records and files that are
3-18     necessary to the investigation.  In the case of a person who is the
3-19     subject of an expunction order on the basis of an acquittal, the
3-20     court may provide in the expunction order that the law enforcement
3-21     agency and the prosecuting attorney retain records and files
3-22     necessary to conduct a subsequent investigation and prosecution of
3-23     a person other than the person who is the subject of the expunction
3-24     order.
3-25           (b)  Unless the person who is the subject of the expunction
3-26     order [the petitioner] is again arrested for or charged with an
3-27     offense arising out of the transaction for which the person [he]
3-28     was arrested or unless there is a subsequent investigation and
3-29     prosecution of a person other than the person who is the subject of
3-30     the expunction order, the provisions of Articles 55.03 and 55.04 of
3-31     this code apply to files and records retained under this section.
3-32           Sec. 5.  (a)  On receipt of the order, each official or
3-33     agency or other entity named in the order shall:
3-34                 (1)  return all records and files that are subject to
3-35     the expunction order to the court or, if removal is impracticable,
3-36     obliterate all portions of the record or file that identify the
3-37     person who is the subject of the order [petitioner] and notify the
3-38     court of its action; and
3-39                 (2)  delete from its public records all index
3-40     references to the records and files that are subject to the
3-41     expunction order.
3-42           (b)  Except in the case of a person who is the subject of an
3-43     expunction order on the basis of an acquittal, the [The] court may
3-44     give the person who is the subject of the order [petitioner] all
3-45     records and files returned to it pursuant to its order.
3-46           (c)  If an order of expunction is issued under this article,
3-47     the court records concerning expunction proceedings are not open
3-48     for inspection by anyone except the person who is the subject of
3-49     the order [petitioner] unless the order permits retention of a
3-50     record under Section 4 of this article and the person [petitioner]
3-51     is again arrested for or charged with an offense arising out of the
3-52     transaction for which the person [he] was arrested or unless there
3-53     is a subsequent investigation and prosecution of a person other
3-54     than the person who is the subject of the expunction order.  The
3-55     clerk of the court issuing the order shall obliterate all public
3-56     references to the proceeding and maintain the files or other
3-57     records in an area not open to inspection.
3-58           (d)  Except in the case of a person who is the subject of an
3-59     expunction order on the basis of an acquittal, the [The] clerk of
3-60     the court shall destroy all the files or other records maintained
3-61     under Subsection (c) of this section on the first anniversary of
3-62     the date the order of expunction is issued unless the records or
3-63     files were released under Subsection (b) of this section.
3-64           (e)  The clerk shall certify to the court the destruction of
3-65     files or other records under Subsection (d) of this section.
3-66           SECTION 3.  Article 55.03, Code of Criminal Procedure, is
3-67     amended to read as follows:
3-68           Art. 55.03.  EFFECT OF EXPUNCTION.  After entry of an
3-69     expunction order:
 4-1                 (1)  the release, dissemination, or use of the expunged
 4-2     records and files for any purpose is prohibited;
 4-3                 (2)  except as provided in Subdivision 3 of this
 4-4     article, the person arrested [petitioner] may deny the occurrence
 4-5     of the arrest and the existence of the expunction order; and
 4-6                 (3)  the person arrested [petitioner] or any other
 4-7     person, when questioned under oath in a criminal proceeding about
 4-8     an arrest for which the records have been expunged, may state only
 4-9     that the matter in question has been expunged.
4-10           SECTION 4.  Article 55.06, Code of Criminal Procedure, is
4-11     amended to read as follows:
4-12           Art. 55.06.  LICENSE SUSPENSIONS AND REVOCATIONS.  Records [A
4-13     person may not use the provisions of this chapter to expunge
4-14     records] relating to the suspension or revocation of a driver's
4-15     license, permit, or privilege to operate a motor vehicle may not be
4-16     expunged under this chapter except as provided in Section 524.015,
4-17     Transportation Code [5(d), Article 6687b-1, Revised Statutes], or
4-18     Section 724.048 of that code [2(r), Chapter 434, Acts of the 61st
4-19     Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
4-20     Civil Statutes)].
4-21           SECTION 5.  (a)  The change in law made by this Act applies
4-22     only to the expunction of arrest records and files relating to an
4-23     arrest made on or after the effective date of this Act or relating
4-24     to a criminal offense for which an acquittal occurred on or after
4-25     the effective date of this Act.
4-26           (b)  Expunction of arrest records and files relating to an
4-27     arrest made or an acquittal that occurred before the effective date
4-28     of this Act is governed by the law in effect when the arrest was
4-29     made or the acquittal occurred, and the former law is continued in
4-30     effect for that purpose.
4-31           SECTION 6.  The importance of this legislation and the
4-32     crowded condition of the calendars in both houses create an
4-33     emergency and an imperative public necessity that the
4-34     constitutional rule requiring bills to be read on three several
4-35     days in each house be suspended, and this rule is hereby suspended,
4-36     and that this Act take effect and be in force from and after its
4-37     passage, and it is so enacted.
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