By McCall                                             H.B. No. 2256
         77R3533 KEL-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the expunction or clarification of certain criminal
 1-3     history record information.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Article 55.01, Code of Criminal Procedure, is
 1-6     amended by adding Subsection (d) to read as follows:
 1-7           (d)  A person is entitled to have any information that
 1-8     identifies the person, including the person's name, address, date
 1-9     of birth, driver's license number, and social security number,
1-10     contained in records and files relating to the arrest of another
1-11     person expunged if:
1-12                 (1)  the information identifying the person asserting
1-13     the entitlement to expunction was falsely given by the person
1-14     arrested as the arrested person's identifying information without
1-15     the consent of the person asserting the entitlement; and
1-16                 (2)  the only reason for the information identifying
1-17     the person asserting the entitlement being contained in the arrest
1-18     records and files of the person arrested is that the information
1-19     was falsely given by the person arrested as the arrested person's
1-20     identifying information.
1-21           SECTION 2.  Section 2, Article 55.02, Code of Criminal
1-22     Procedure, is amended by amending Subsections (a)  and (b) and
1-23     adding Subsection (e) to read as follows:
1-24           (a)  A person who is entitled to expunction of records and
 2-1     files under Article 55.01(a)(1)(B), [or] 55.01(a)(2), or 55.01(d)
 2-2     or a person who is eligible for expunction of records and files
 2-3     under Article 55.01(b) may file an ex parte petition for expunction
 2-4     in a district court for the county in which:
 2-5                 (1)  the petitioner [person] was arrested;
 2-6                 (2)  the person who falsely identified himself or
 2-7     herself as the petitioner was arrested, if the petitioner relies on
 2-8     an entitlement under Article 55.01(d); or
 2-9                 (3)  [in the county where] the offense was alleged to
2-10     have occurred.
2-11           (b)  The petition must be verified and shall include the
2-12     following or an explanation for why one or more of the following is
2-13     not included:
2-14                 (1)  the petitioner's:
2-15                       (A)  full name;
2-16                       (B)  sex;
2-17                       (C)  race;
2-18                       (D)  date of birth;
2-19                       (E)  driver's license number;
2-20                       (F)  social security number; and
2-21                       (G)  address at the time of the arrest;
2-22                 (2)  the offense charged against the petitioner or the
2-23     person described by Subsection (a)(2);
2-24                 (3)  the date the offense charged against the
2-25     petitioner or the person described by Subsection (a)(2) was alleged
2-26     to have been committed;
2-27                 (4)  the date the petitioner or the person described by
 3-1     Subsection (a)(2) was arrested;
 3-2                 (5)  the name of the county where the petitioner or the
 3-3     person described by Subsection (a)(2) was arrested and if the
 3-4     arrest occurred in a municipality, the name of the municipality;
 3-5                 (6)  the name of the agency that arrested the
 3-6     petitioner or the person described by Subsection (a)(2);
 3-7                 (7)  the case number and court of offense; and
 3-8                 (8)  a list of all law enforcement agencies, jails or
 3-9     other detention facilities, magistrates, courts, prosecuting
3-10     attorneys, correctional facilities, central state depositories of
3-11     criminal records, and other officials or agencies or other entities
3-12     of this state or of any political subdivision of this state and of
3-13     all central federal depositories of criminal records that the
3-14     petitioner has reason to believe have records or files that are
3-15     subject to expunction.
3-16           (e)  In addition to the information required by Subsection
3-17     (b), if the petitioner relies on an entitlement to expunction under
3-18     Article 55.01(d), the verified petition shall include the following
3-19     or a statement explaining the reason the following is not included:
3-20                 (1)  the full name of the person arrested;
3-21                 (2)  a statement that:
3-22                       (A)  the petitioner is not the person arrested
3-23     and for whom the arrest records and files were created; and
3-24                       (B)  the petitioner did not give the person
3-25     arrested consent to falsely identify himself or herself as the
3-26     petitioner; and
3-27                 (3)  authenticated fingerprint records of the
 4-1     petitioner.
 4-2           SECTION 3.  Section 5, Article 55.02, Code of Criminal
 4-3     Procedure, is amended to read as follows:
 4-4           Sec. 5.  (a)  Except as provided by Subsection (f), on [On]
 4-5     receipt of the order, each official or agency or other entity named
 4-6     in the order shall:
 4-7                 (1)  return all records and files that are subject to
 4-8     the expunction order to the court or, if removal is impracticable,
 4-9     obliterate all portions of the record or file that identify the
4-10     person who is the subject of the order and notify the court of its
4-11     action; and
4-12                 (2)  delete from its public records all index
4-13     references to the records and files that are subject to the
4-14     expunction order.
4-15           (b)  Except in the case of a person who is the subject of an
4-16     expunction order on the basis of an acquittal or an expunction
4-17     order based on an entitlement under Article 55.01(d), the court may
4-18     give the person who is the subject of the order all records and
4-19     files returned to it pursuant to its order.
4-20           (c)  Except in the case of a person who is the subject of an
4-21     expunction order based on an entitlement under Article 55.01(d), if
4-22     [If] an order of expunction is issued under this article, the court
4-23     records concerning expunction proceedings are not open for
4-24     inspection by anyone except the person who is the subject of the
4-25     order unless the order permits retention of a record under Section
4-26     4 of this article and the person is again arrested for or charged
4-27     with an offense arising out of the transaction for which the person
 5-1     was arrested or unless the court provides for the retention of
 5-2     records and files under Section 4(a) of this article.  The clerk of
 5-3     the court issuing the order shall obliterate all public references
 5-4     to the proceeding and maintain the files or other records in an
 5-5     area not open to inspection.
 5-6           (d)  Except in the case of a person who is the subject of an
 5-7     expunction order on the basis of an acquittal or an expunction
 5-8     order based on an entitlement under Article 55.01(d), the clerk of
 5-9     the court shall destroy all the files or other records maintained
5-10     under Subsection (c) of this section on the first anniversary of
5-11     the date the order of expunction is issued unless the records or
5-12     files were released under Subsection (b) of this section.
5-13           (e)  The clerk shall certify to the court the destruction of
5-14     files or other records under Subsection (d) of this section.
5-15           (f)  On receipt of an order granting expunction to a person
5-16     entitled to expunction under Article 55.01(d), each official,
5-17     agency, or other entity named in the order:
5-18                 (1)  shall:
5-19                       (A)  obliterate all portions of the record or
5-20     file that identify the petitioner; and
5-21                       (B)  substitute for all obliterated portions of
5-22     the record or file any available information that identifies the
5-23     person arrested; and
5-24                 (2)  may not return the record or file or delete index
5-25     references to the record or file.
5-26           SECTION 4.  Section 411.0421(c), Government Code, is amended
5-27     to read as follows:
 6-1           (c)  On receipt of a declaration under this section, the
 6-2     department shall create a record of the individual's identity,
 6-3     including a record of the individual's unique password, in the
 6-4     criminal history record information maintained by the department
 6-5     under Subchapter F.  The department shall ensure that this record,
 6-6     including the unique password, is available online to any entity
 6-7     [criminal justice agency] authorized to receive information from
 6-8     the department under Subchapter F.
 6-9           SECTION 5.  The change in law made by this Act applies to
6-10     arrest records and files created before, on, or after the effective
6-11     date of this Act.
6-12           SECTION 6.  This Act takes effect immediately if it receives
6-13     a vote of two-thirds of all the members elected to each house, as
6-14     provided by Section 39, Article III, Texas Constitution.  If this
6-15     Act does not receive the vote necessary for immediate effect, this
6-16     Act takes effect September 1, 2001.