1-1 By: Shapiro S.B. No. 1047
1-2 (In the Senate - Filed March 2, 2001; March 5, 2001, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 9, 2001, reported favorably by the following vote: Yeas 7,
1-5 Nays 0; April 9, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the expunction or clarification of certain criminal
1-9 history record information.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Article 55.01, Code of Criminal Procedure, is
1-12 amended by adding Subsection (d) to read as follows:
1-13 (d) A person is entitled to have any information that
1-14 identifies the person, including the person's name, address, date
1-15 of birth, driver's license number, and social security number,
1-16 contained in records and files relating to the arrest of another
1-17 person expunged if:
1-18 (1) the information identifying the person asserting
1-19 the entitlement to expunction was falsely given by the person
1-20 arrested as the arrested person's identifying information without
1-21 the consent of the person asserting the entitlement; and
1-22 (2) the only reason for the information identifying
1-23 the person asserting the entitlement being contained in the arrest
1-24 records and files of the person arrested is that the information
1-25 was falsely given by the person arrested as the arrested person's
1-26 identifying information.
1-27 SECTION 2. Section 2, Article 55.02, Code of Criminal
1-28 Procedure, is amended by amending Subsections (a) and (b) and
1-29 adding Subsection (e) to read as follows:
1-30 (a) A person who is entitled to expunction of records and
1-31 files under Article 55.01(a)(1)(B), [or] 55.01(a)(2), or 55.01(d)
1-32 or a person who is eligible for expunction of records and files
1-33 under Article 55.01(b) may file an ex parte petition for expunction
1-34 in a district court for the county in which:
1-35 (1) the petitioner [person] was arrested;
1-36 (2) the person who falsely identified himself or
1-37 herself as the petitioner was arrested, if the petitioner relies on
1-38 an entitlement under Article 55.01(d); or
1-39 (3) [in the county where] the offense was alleged to
1-40 have occurred.
1-41 (b) The petition must be verified and shall include the
1-42 following or an explanation for why one or more of the following is
1-43 not included:
1-44 (1) the petitioner's:
1-45 (A) full name;
1-46 (B) sex;
1-47 (C) race;
1-48 (D) date of birth;
1-49 (E) driver's license number;
1-50 (F) social security number; and
1-51 (G) address at the time of the arrest;
1-52 (2) the offense charged against the petitioner or the
1-53 person described by Subsection (a)(2);
1-54 (3) the date the offense charged against the
1-55 petitioner or the person described by Subsection (a)(2) was alleged
1-56 to have been committed;
1-57 (4) the date the petitioner or the person described by
1-58 Subsection (a)(2) was arrested;
1-59 (5) the name of the county where the petitioner or the
1-60 person described by Subsection (a)(2) was arrested and if the
1-61 arrest occurred in a municipality, the name of the municipality;
1-62 (6) the name of the agency that arrested the
1-63 petitioner or the person described by Subsection (a)(2);
1-64 (7) the case number and court of offense; and
2-1 (8) a list of all law enforcement agencies, jails or
2-2 other detention facilities, magistrates, courts, prosecuting
2-3 attorneys, correctional facilities, central state depositories of
2-4 criminal records, and other officials or agencies or other entities
2-5 of this state or of any political subdivision of this state and of
2-6 all central federal depositories of criminal records that the
2-7 petitioner has reason to believe have records or files that are
2-8 subject to expunction.
2-9 (e) In addition to the information required by Subsection
2-10 (b), if the petitioner relies on an entitlement to expunction under
2-11 Article 55.01(d), the verified petition shall include the following
2-12 or a statement explaining the reason the following is not included:
2-13 (1) the full name of the person arrested;
2-14 (2) a statement that:
2-15 (A) the petitioner is not the person arrested
2-16 and for whom the arrest records and files were created; and
2-17 (B) the petitioner did not give the person
2-18 arrested consent to falsely identify himself or herself as the
2-19 petitioner; and
2-20 (3) authenticated fingerprint records of the
2-21 petitioner.
2-22 SECTION 3. Section 5, Article 55.02, Code of Criminal
2-23 Procedure, is amended to read as follows:
2-24 Sec. 5. (a) Except as provided by Subsection (f), on [On]
2-25 receipt of the order, each official or agency or other entity named
2-26 in the order shall:
2-27 (1) return all records and files that are subject to
2-28 the expunction order to the court or, if removal is impracticable,
2-29 obliterate all portions of the record or file that identify the
2-30 person who is the subject of the order and notify the court of its
2-31 action; and
2-32 (2) delete from its public records all index
2-33 references to the records and files that are subject to the
2-34 expunction order.
2-35 (b) Except in the case of a person who is the subject of an
2-36 expunction order on the basis of an acquittal or an expunction
2-37 order based on an entitlement under Article 55.01(d), the court may
2-38 give the person who is the subject of the order all records and
2-39 files returned to it pursuant to its order.
2-40 (c) Except in the case of a person who is the subject of an
2-41 expunction order based on an entitlement under Article 55.01(d), if
2-42 [If] an order of expunction is issued under this article, the court
2-43 records concerning expunction proceedings are not open for
2-44 inspection by anyone except the person who is the subject of the
2-45 order unless the order permits retention of a record under Section
2-46 4 of this article and the person is again arrested for or charged
2-47 with an offense arising out of the transaction for which the person
2-48 was arrested or unless the court provides for the retention of
2-49 records and files under Section 4(a) of this article. The clerk of
2-50 the court issuing the order shall obliterate all public references
2-51 to the proceeding and maintain the files or other records in an
2-52 area not open to inspection.
2-53 (d) Except in the case of a person who is the subject of an
2-54 expunction order on the basis of an acquittal or an expunction
2-55 order based on an entitlement under Article 55.01(d), the clerk of
2-56 the court shall destroy all the files or other records maintained
2-57 under Subsection (c) of this section on the first anniversary of
2-58 the date the order of expunction is issued unless the records or
2-59 files were released under Subsection (b) of this section.
2-60 (e) The clerk shall certify to the court the destruction of
2-61 files or other records under Subsection (d) of this section.
2-62 (f) On receipt of an order granting expunction to a person
2-63 entitled to expunction under Article 55.01(d), each official,
2-64 agency, or other entity named in the order:
2-65 (1) shall:
2-66 (A) obliterate all portions of the record or
2-67 file that identify the petitioner; and
2-68 (B) substitute for all obliterated portions of
2-69 the record or file any available information that identifies the
3-1 person arrested; and
3-2 (2) may not return the record or file or delete index
3-3 references to the record or file.
3-4 SECTION 4. Subsection (c), Section 411.0421, Government
3-5 Code, is amended to read as follows:
3-6 (c) On receipt of a declaration under this section, the
3-7 department shall create a record of the individual's identity,
3-8 including a record of the individual's unique password, in the
3-9 criminal history record information maintained by the department
3-10 under Subchapter F. The department shall ensure that this record,
3-11 including the unique password, is available online to any entity
3-12 [criminal justice agency] authorized to receive information from
3-13 the department under Subchapter F.
3-14 SECTION 5. The change in law made by this Act applies to
3-15 arrest records and files created before, on, or after the effective
3-16 date of this Act.
3-17 SECTION 6. This Act takes effect immediately if it receives
3-18 a vote of two-thirds of all the members elected to each house, as
3-19 provided by Section 39, Article III, Texas Constitution. If this
3-20 Act does not receive the vote necessary for immediate effect, this
3-21 Act takes effect September 1, 2001.
3-22 * * * * *