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.
4-38 * * * * *