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
1-25 files under Article 55.01(a)(1)(B), [or] 55.01(a)(2), or 55.01(d)
2-1 or a person who is eligible for expunction of records and files
2-2 under Article 55.01(b) may file an ex parte petition for expunction
2-3 in a district court for the county in which:
2-4 (1) the petitioner [person] was arrested;
2-5 (2) the person who falsely identified himself or
2-6 herself as the petitioner was arrested, if the petitioner relies on
2-7 an entitlement under Article 55.01(d); or
2-8 (3) [in the county where] the offense was alleged to
2-9 have occurred.
2-10 (b) The petition must be verified and shall include the
2-11 following or an explanation for why one or more of the following is
2-12 not included:
2-13 (1) the petitioner's:
2-14 (A) full name;
2-15 (B) sex;
2-16 (C) race;
2-17 (D) date of birth;
2-18 (E) driver's license number;
2-19 (F) social security number; and
2-20 (G) address at the time of the arrest;
2-21 (2) the offense charged against the petitioner or the
2-22 person described by Subsection (a)(2);
2-23 (3) the date the offense charged against the
2-24 petitioner or the person described by Subsection (a)(2) was alleged
2-25 to have been committed;
2-26 (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 must include authenticated
3-19 fingerprint records of the petitioner and must include the
3-20 following or a statement explaining the reason the following is not
3-21 included:
3-22 (1) the full name of the person arrested; and
3-23 (2) a statement that:
3-24 (A) the petitioner is not the person arrested
3-25 and for whom the arrest records and files were created; and
3-26 (B) the petitioner did not give the person
4-1 arrested consent to falsely identify himself or herself as the
4-2 petitioner.
4-3 SECTION 3. Section 5, Article 55.02, Code of Criminal
4-4 Procedure, is amended to read as follows:
4-5 Sec. 5. (a) Except as provided by Subsection (f), on [On]
4-6 receipt of the order, each official or agency or other entity named
4-7 in the order shall:
4-8 (1) return all records and files that are subject to
4-9 the expunction order to the court or, if removal is impracticable,
4-10 obliterate all portions of the record or file that identify the
4-11 person who is the subject of the order and notify the court of its
4-12 action; and
4-13 (2) delete from its public records all index
4-14 references to the records and files that are subject to the
4-15 expunction order.
4-16 (b) Except in the case of a person who is the subject of an
4-17 expunction order on the basis of an acquittal or an expunction
4-18 order based on an entitlement under Article 55.01(d), the court may
4-19 give the person who is the subject of the order all records and
4-20 files returned to it pursuant to its order.
4-21 (c) Except in the case of a person who is the subject of an
4-22 expunction order based on an entitlement under Article 55.01(d), if
4-23 [If] an order of expunction is issued under this article, the court
4-24 records concerning expunction proceedings are not open for
4-25 inspection by anyone except the person who is the subject of the
4-26 order unless the order permits retention of a record under Section
5-1 4 of this article and the person is again arrested for or charged
5-2 with an offense arising out of the transaction for which the person
5-3 was arrested or unless the court provides for the retention of
5-4 records and files under Section 4(a) of this article. The clerk of
5-5 the court issuing the order shall obliterate all public references
5-6 to the proceeding and maintain the files or other records in an
5-7 area not open to inspection.
5-8 (d) Except in the case of a person who is the subject of an
5-9 expunction order on the basis of an acquittal or an expunction
5-10 order based on an entitlement under Article 55.01(d), the clerk of
5-11 the court shall destroy all the files or other records maintained
5-12 under Subsection (c) of this section on the first anniversary of
5-13 the date the order of expunction is issued unless the records or
5-14 files were released under Subsection (b) of this section.
5-15 (e) The clerk shall certify to the court the destruction of
5-16 files or other records under Subsection (d) of this section.
5-17 (f) On receipt of an order granting expunction to a person
5-18 entitled to expunction under Article 55.01(d), each official,
5-19 agency, or other entity named in the order:
5-20 (1) shall:
5-21 (A) obliterate all portions of the record or
5-22 file that identify the petitioner; and
5-23 (B) substitute for all obliterated portions of
5-24 the record or file any available information that identifies the
5-25 person arrested; and
5-26 (2) may not return the record or file or delete index
6-1 references to the record or file.
6-2 SECTION 4. Subsection (c), Section 411.0421, Government
6-3 Code, is amended to read as follows:
6-4 (c) On receipt of a declaration under this section, the
6-5 department shall create a record of the individual's identity,
6-6 including a record of the individual's unique password, in the
6-7 criminal history record information maintained by the department
6-8 under Subchapter F. The department shall ensure that this record,
6-9 including the unique password, is available online to any entity
6-10 [criminal justice agency] authorized to receive information from
6-11 the department under Subchapter F.
6-12 SECTION 5. The change in law made by this Act applies to
6-13 arrest records and files created before, on, or after the effective
6-14 date of this Act.
6-15 SECTION 6. This Act takes effect immediately if it receives
6-16 a vote of two-thirds of all the members elected to each house, as
6-17 provided by Section 39, Article III, Texas Constitution. If this
6-18 Act does not receive the vote necessary for immediate effect, this
6-19 Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1047 passed the Senate on
April 20, 2001, by the following vote: Yeas 28, Nays 0, one
present not voting; and that the Senate concurred in House
amendment on May 24, 2001, by the following vote: Yeas 30, Nays 0,
one present not voting.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1047 passed the House, with
amendment, on May 18, 2001, by the following vote: Yeas 135,
Nays 0, two present not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor