By Dutton H.B. No. 3110
77R2088 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the automatic expunction of criminal 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, except as
1-12 provided by Subsection (c) of this section; or
1-13 (B) convicted and subsequently pardoned; or
1-14 (2) either [each] of the following conditions exists
1-15 [exist]:
1-16 (A) an indictment, complaint, or information
1-17 charging the person with commission of an offense [a felony] has
1-18 not been presented against the person for an offense arising out of
1-19 the transaction for which the person was arrested before the second
1-20 anniversary of the date of the arrest; or
1-21 (B) [,] if an indictment, complaint, or
1-22 information charging the person with commission of an offense [a
1-23 felony] was presented, it has been dismissed [and the court finds
1-24 that it was dismissed because the presentment had been made because
2-1 of mistake, false information, or other similar reason indicating
2-2 absence of probable cause at the time of the dismissal to believe
2-3 the person committed the offense or because it was void;]
2-4 [(B) the person has been released and the
2-5 charge, if any, has not resulted in a final conviction and is no
2-6 longer pending and there was no court ordered community supervision
2-7 under Article 42.12 of this code; and]
2-8 [(C) the person has not been convicted of a
2-9 felony in the five years preceding the date of the arrest].
2-10 SECTION 2. Article 55.02, Code of Criminal Procedure, is
2-11 amended to read as follows:
2-12 Art. 55.02. PROCEDURE FOR EXPUNCTION
2-13 Sec. 1. (a) The [At the request of the defendant and after
2-14 notice to the state and a hearing, the] trial court [presiding over
2-15 the case in which the defendant was acquitted] shall enter an order
2-16 of expunction for a person entitled to expunction because:
2-17 (1) the person was acquitted;
2-18 (2) the person was pardoned; or
2-19 (3) the offense was dismissed [under Article
2-20 55.01(a)(1)(A) not later than the 30th day after the date of the
2-21 acquittal. Upon acquittal, the court shall advise the defendant of
2-22 the right to expunction. The defendant shall provide to the court
2-23 all of the information required in a petition for expunction under
2-24 Section 2(b)].
2-25 (b) The attorney representing the state whose office would
2-26 have prosecuted the offense shall bring a motion for expunction for
2-27 a person who was arrested but against whom an indictment,
3-1 complaint, or information is not filed before the second
3-2 anniversary of the date of arrest. On the filing of the motion,
3-3 the trial court shall timely enter an order of expunction for the
3-4 person.
3-5 Sec. 2. The court shall enter the order of expunction not
3-6 later than the 30th day after the date of acquittal, pardon,
3-7 dismissal, or filing of the motion by the attorney representing the
3-8 state. The court shall include in the order a listing of each
3-9 official, agency, or other entity of this state or political
3-10 subdivision of this state that there is reason to believe has any
3-11 records or files that are subject to the order [(a) A person who
3-12 is entitled to expunction of records and files under Article
3-13 55.01(a)(1)(B) or 55.01(a)(2) or a person who is eligible for
3-14 expunction of records and files under Article 55.01(b) may file an
3-15 ex parte petition for expunction in a district court for the county
3-16 in which the person was arrested or in the county where the offense
3-17 was alleged to have occurred].
3-18 [(b) The petition must be verified and shall include the
3-19 following or an explanation for why one or more of the following is
3-20 not included:]
3-21 [(1) the petitioner's:]
3-22 [(A) full name;]
3-23 [(B) sex;]
3-24 [(C) race;]
3-25 [(D) date of birth;]
3-26 [(E) driver's license number;]
3-27 [(F) social security number; and]
4-1 [(G) address at the time of the arrest;]
4-2 [(2) the offense charged against the petitioner;]
4-3 [(3) the date the offense charged against the
4-4 petitioner was alleged to have been committed;]
4-5 [(4) the date the petitioner was arrested;]
4-6 [(5) the name of the county where the petitioner was
4-7 arrested and if the arrest occurred in a municipality, the name of
4-8 the municipality;]
4-9 [(6) the name of the agency that arrested the
4-10 petitioner;]
4-11 [(7) the case number and court of offense; and]
4-12 [(8) a list of all law enforcement agencies, jails or
4-13 other detention facilities, magistrates, courts, prosecuting
4-14 attorneys, correctional facilities, central state depositories of
4-15 criminal records, and other officials or agencies or other entities
4-16 of this state or of any political subdivision of this state and of
4-17 all central federal depositories of criminal records that the
4-18 petitioner has reason to believe have records or files that are
4-19 subject to expunction.]
4-20 [(c) The court shall set a hearing on the matter no sooner
4-21 than thirty days from the filing of the petition and shall give
4-22 reasonable notice of the hearing to each official or agency or
4-23 other entity named in the petition by certified mail, return
4-24 receipt requested, and such entity may be represented by the
4-25 attorney responsible for providing such agency with legal
4-26 representation in other matters.]
4-27 [(d) If the court finds that the petitioner is entitled to
5-1 expunction of any records and files that are the subject of the
5-2 petition, it shall enter an order directing expunction.]
5-3 Sec. 3. (a) [In an order of expunction issued under this
5-4 article, the trial court shall require any state agency that sent
5-5 information concerning the arrest to a central federal depository
5-6 to request such depository to return all records and files subject
5-7 to the order of expunction. The person who is the subject of the
5-8 expunction order or an agency protesting the expunction may appeal
5-9 the court's decision in the same manner as in other civil cases.]
5-10 [(b) The order of expunction entered by the trial court
5-11 shall have attached and incorporate by reference a copy of the
5-12 judgment of acquittal and shall include:]
5-13 [(1) the following information on the person who is
5-14 the subject of the expunction order:]
5-15 [(A) full name;]
5-16 [(B) sex;]
5-17 [(C) race;]
5-18 [(D) date of birth;]
5-19 [(E) driver's license number; and]
5-20 [(F) social security number;]
5-21 [(2) the offense charged against the person who is the
5-22 subject of the expunction order;]
5-23 [(3) the date the person who is the subject of the
5-24 expunction order was arrested;]
5-25 [(4) the case number and court of offense; and]
5-26 [(5) the tracking incident number (TRN) assigned to
5-27 the individual incident of arrest under Article 60.07(b)(1) by the
6-1 Department of Public Safety.]
6-2 [(c)] When the order of expunction is final, the clerk of
6-3 the court shall send a certified copy of the order by certified
6-4 mail, return receipt requested, to the Crime Records Service of the
6-5 Department of Public Safety and to each official or agency or other
6-6 entity of this state or of any political subdivision of this state
6-7 named in [designated by the person who is the subject of] the
6-8 order. The Department of Public Safety shall notify any central
6-9 federal depository of criminal records by any means, including
6-10 electronic transmission, of the order with an explanation of the
6-11 effect of the order and a request that the records in possession of
6-12 the depository, including any information with respect to the
6-13 order, be destroyed or returned to the court.
6-14 (b) [(d)] All returned receipts received by the clerk from
6-15 [notices of the hearing and] copies of the order shall be
6-16 maintained in the file on the proceedings under this chapter.
6-17 Sec. 4. (a) If the state establishes that the person who is
6-18 the subject of an expunction order is still subject to conviction
6-19 for an offense arising out of the transaction for which the person
6-20 was arrested because the statute of limitations has not run and
6-21 there is reasonable cause to believe that the state may proceed
6-22 against the person for the offense, the court may provide in its
6-23 order that the law enforcement agency and the prosecuting attorney
6-24 responsible for investigating the offense may retain any records
6-25 and files that are necessary to the investigation.
6-26 (b) In the case of a person who is the subject of an
6-27 expunction order on the basis of an acquittal, the court may
7-1 provide in the expunction order that the law enforcement agency and
7-2 the prosecuting attorney retain records and files if:
7-3 (1) the records and files are necessary to conduct a
7-4 subsequent investigation and prosecution of a person other than the
7-5 person who is the subject of the expunction order; or
7-6 (2) the state establishes that the records and files
7-7 are necessary for use in:
7-8 (A) another criminal case, including a
7-9 prosecution, motion to adjudicate or revoke community supervision,
7-10 parole revocation hearing, mandatory supervision revocation
7-11 hearing, punishment hearing, or bond hearing; or
7-12 (B) a civil case, including a civil suit or suit
7-13 for possession of or access to a child.
7-14 (c) [(b)] Unless the person who is the subject of the
7-15 expunction order is again arrested for or charged with an offense
7-16 arising out of the transaction for which the person was arrested or
7-17 unless the court provides for the retention of records and files
7-18 under Subsection (b) [Subsection (a)] of this section, [the
7-19 provisions of] Articles 55.03 and 55.04 of this code apply to files
7-20 and records retained under this section.
7-21 Sec. 5. (a) On receipt of the order, each official or agency
7-22 or other entity named in the order shall:
7-23 (1) return all records and files that are subject to
7-24 the expunction order to the court or, if removal is impracticable,
7-25 obliterate all portions of the record or file that identify the
7-26 person who is the subject of the order and notify the court of its
7-27 action; and
8-1 (2) delete from its public records all index
8-2 references to the records and files that are subject to the
8-3 expunction order.
8-4 (b) Except in the case of a person who is the subject of an
8-5 expunction order on the basis of an acquittal, the court may give
8-6 the person who is the subject of the order all records and files
8-7 returned to it pursuant to its order.
8-8 (c) If an order of expunction is issued under this article,
8-9 the court records concerning expunction proceedings are not open
8-10 for inspection by anyone except the person who is the subject of
8-11 the order unless the order permits retention of a record under
8-12 Section 4(a) [Section 4] of this article and the person is again
8-13 arrested for or charged with an offense arising out of the
8-14 transaction for which the person was arrested or unless the court
8-15 provides for the retention of records and files under Section 4(b)
8-16 [Section 4(a)] of this article. The clerk of the court issuing the
8-17 order shall obliterate all public references to the proceeding and
8-18 maintain the files or other records in an area not open to
8-19 inspection.
8-20 (d) Except in the case of a person who is the subject of an
8-21 expunction order on the basis of an acquittal, the clerk of the
8-22 court shall destroy all the files or other records maintained under
8-23 Subsection (c) of this section on the first anniversary of the date
8-24 the order of expunction is issued unless the records or files were
8-25 released under Subsection (b) of this section.
8-26 (e) The clerk shall certify to the court the destruction of
8-27 files or other records under Subsection (d) of this section.
9-1 SECTION 3. Articles 55.05 and 102.006, Code of Criminal
9-2 Procedure, are repealed.
9-3 SECTION 4. (a) This Act takes effect September 1, 2001, and
9-4 applies only to the expunction of arrest records related to:
9-5 (1) a criminal offense for which an acquittal occurred
9-6 on or after that date;
9-7 (2) a charge for an offense that was dismissed on or
9-8 after that date; or
9-9 (3) an arrest made on or after that date.
9-10 (b) Expunction for an acquittal, dismissal, or arrest that
9-11 occurred before the effective date of this Act is governed by the
9-12 law in effect at that time, and the former law is continued in
9-13 effect for that purpose.