78R1169 PEP-D
By: Dutton H.B. No. 384
A BILL TO BE ENTITLED
AN ACT
relating to the automatic expunction of criminal records.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 55.01(a), Code of Criminal Procedure, is
amended to read as follows:
(a) A person who has been arrested for commission of either
a felony or misdemeanor is entitled to have all records and files
relating to the arrest expunged if:
(1) the person is tried for the offense for which the
person was arrested and is:
(A) acquitted by the trial court, except as
provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) either [each] of the following conditions exists
[exist]:
(A) an indictment, complaint, or information
charging the person with commission of an offense [a felony] has not
been presented against the person for an offense arising out of the
transaction for which the person was arrested before the second
anniversary of the date of the arrest; or
(B) [,] if an indictment, complaint, or
information charging the person with commission of an offense [a
felony] was presented, the indictment, complaint, or information
has been dismissed or quashed[, and:
[(i) the limitations period expired before
the date on which a petition for expunction was filed under Article
55.02; or
[(ii) the court finds that the indictment
or information was dismissed or quashed because the presentment had
been made because of mistake, false information, or other similar
reason indicating absence of probable cause at the time of the
dismissal to believe the person committed the offense or because it
was void;
[(B) the person has been released and the charge,
if any, has not resulted in a final conviction and is no longer
pending and there was no court ordered community supervision under
Article 42.12; and
[(C) the person has not been convicted of a
felony in the five years preceding the date of the arrest].
SECTION 2. Section 1, Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. (a) The [At the request of the defendant and after
notice to the state and a hearing, the] trial court [presiding over
the case in which the defendant was acquitted] shall enter an order
of expunction for a person entitled to expunction because:
(1) the person was acquitted;
(2) the person was pardoned; or
(3) the offense was dismissed [under Article
55.01(a)(1)(A) not later than the 30th day after the date of the
acquittal. Upon acquittal, the court shall advise the defendant of
the right to expunction. The defendant shall provide to the court
all of the information required in a petition for expunction under
Section 2(b)].
(b) The attorney representing the state whose office would
have prosecuted the offense shall bring a motion for expunction for
a person who was arrested but against whom an indictment,
complaint, or information is not filed before the second
anniversary of the date of arrest.
(c) The court shall enter an order of expunction under this
section not later than the 30th day after the date of acquittal,
pardon, dismissal, or filing of the motion by the attorney
representing the state. The court shall include in the order a
listing of each official, agency, or other entity of this state or
political subdivision of this state that there is reason to believe
has any record or file that is subject to the order.
SECTION 3. Section 2, Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. (a) A person who is entitled to expunction of
identifying information contained in records and files under
Article [55.01(a)(1)(B), 55.01(a)(2), or] 55.01(d) [or a person who
is eligible for expunction of records and files under Article
55.01(b)] may file an ex parte petition for expunction in a district
court for the county in which:
(1) [the petitioner was arrested;
[(2)] the person who falsely identified himself or
herself as the petitioner was arrested[, if the petitioner relies
on an entitlement under Article 55.01(d)]; or
(2) [(3)] the offense was alleged to have occurred.
(b) The petition must be verified and shall include the
following or an explanation for why one or more of the following is
not included:
(1) the petitioner's:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver's license number;
(F) social security number; and
(G) address at the time of the arrest of the
person who falsely identified himself or herself as the petitioner;
(2) the full name of the person arrested;
(3) the offense charged against the [petitioner or
the] person arrested and [described by Subsection (a)(2);
[(3)] the date that [the] offense [charged against the
petitioner or the person described by Subsection (a)(2)] was
alleged to have been committed;
(4) the date of arrest [the petitioner or the person
described by Subsection (a)(2) was arrested];
(5) the name of the county and the municipality,
[where the petitioner or the person described by Subsection (a)(2)
was arrested and] if the arrest occurred in a municipality, in which
the arrest occurred [the name of the municipality];
(6) the name of the arresting agency [that arrested
the petitioner or the person described by Subsection (a)(2)];
(7) the case number and court of offense; [and]
(8) authenticated fingerprint records of the
petitioner;
(9) a statement that:
(A) the petitioner is not the person arrested and
for whom the arrest records and files were created; and
(B) the petitioner did not give the person
arrested consent to falsely identify himself or herself as the
petitioner; and
(10) a list of all law enforcement agencies, jails or
other detention facilities, magistrates, courts, prosecuting
attorneys, correctional facilities, central state depositories of
criminal records, and other officials or agencies or other entities
of this state or of any political subdivision of this state and of
all central federal depositories of criminal records that the
petitioner has reason to believe have records or files that are
subject to expunction.
(c) The court shall set a hearing on the matter no sooner
than thirty days from the filing of the petition and shall give
reasonable notice of the hearing to each official or agency or other
entity named in the petition by certified mail, return receipt
requested. The agency or [, and such] entity may be represented by
the attorney responsible for providing that [such] agency or entity
with legal representation in other matters.
(d) If the court finds that the petitioner is entitled to
expunction of identifying information contained in any records and
files that are the subject of the petition, it shall enter an order
directing expunction.
[(e) In addition to the information required by Subsection
(b), if the petitioner relies on an entitlement to expunction under
Article 55.01(d), the verified petition must include authenticated
fingerprint records of the petitioner and must include the
following or a statement explaining the reason the following is not
included:
[(1) the full name of the person arrested; and
[(2) a statement that:
[(A) the petitioner is not the person arrested
and for whom the arrest records and files were created; and
[(B) the petitioner did not give the person
arrested consent to falsely identify himself or herself as the
petitioner.]
SECTION 4. Sections 3(a) and (c), Article 55.02, Code of
Criminal Procedure, are amended to read as follows:
(a) In an order of expunction issued under this article, the
trial court shall require any state agency that sent information
concerning the arrest to a central federal depository to request
the [such] depository to return all records and files subject to the
order of expunction. The person who is the subject of an [the]
expunction order under Section 2, or an agency protesting the
expunction, may appeal the court's decision in the same manner as in
other civil cases.
(c) When the order of expunction is final, the clerk of the
court shall send a certified copy of the order by certified mail,
return receipt requested, to the Crime Records Service of the
Department of Public Safety and by hand delivery or certified mail,
return receipt requested, to each official or agency or other
entity of this state or of any political subdivision of this state
named in [designated by the person who is the subject of] the order.
The clerk of the court must receive a receipt for each order
delivered by hand under this subsection. The Department of Public
Safety shall notify any central federal depository of criminal
records by any means, including electronic transmission, of the
order with an explanation of the effect of the order and a request
that the records in possession of the depository, including any
information with respect to the order, be destroyed or returned to
the court.
SECTION 5. Section 4, Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4. (a) If the state establishes that the person who is
the subject of an expunction order is still subject to conviction
for an offense arising out of the transaction for which the person
was arrested because the statute of limitations has not run and
there is reasonable cause to believe that the state may proceed
against the person for the offense, the court may provide in its
order that the law enforcement agency and the prosecuting attorney
responsible for investigating the offense may retain any records
and files that are necessary to the investigation.
(b) In the case of a person who is the subject of an
expunction order on the basis of an acquittal, the court may provide
in the expunction order that the law enforcement agency and the
prosecuting attorney retain records and files if:
(1) the records and files are necessary to conduct a
subsequent investigation and prosecution of a person other than the
person who is the subject of the expunction order; or
(2) the state establishes that the records and files
are necessary for use in:
(A) another criminal case, including a
prosecution, motion to adjudicate or revoke community supervision,
parole revocation hearing, mandatory supervision revocation
hearing, punishment hearing, or bond hearing; or
(B) a civil case, including a civil suit or suit
for possession of or access to a child.
(c) [(b)] Unless the person who is the subject of the
expunction order is again arrested for or charged with an offense
arising out of the transaction for which the person was arrested or
unless the court provides for the retention of records and files
under Subsection (b) [Subsection (a)] of this section, [the
provisions of] Articles 55.03 and 55.04 of this code apply to files
and records retained under this section.
SECTION 6. Section 5(c), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(c) Except in the case of a person who is the subject of an
expunction order based on an entitlement under Article 55.01(d), if
an order of expunction is issued under this article, the court
records concerning expunction proceedings are not open for
inspection by anyone except the person who is the subject of the
order unless the order permits retention of a record under Section
4(a) [Section 4] of this article and the person is again arrested
for or charged with an offense arising out of the transaction for
which the person was arrested or unless the court provides for the
retention of records and files under Section 4(b) [Section 4(a)] of
this article. The clerk of the court issuing the order shall
obliterate all public references to the proceeding and maintain the
files or other records in an area not open to inspection.
SECTION 7. Articles 55.05 and 102.006, Code of Criminal
Procedure, are repealed.
SECTION 8. (a) This Act takes effect September 1, 2003, and
applies only to the expunction of arrest records related to:
(1) a criminal offense for which an acquittal occurred
on or after that date;
(2) a charge for an offense that was dismissed on or
after that date; or
(3) an arrest made on or after that date.
(b) Expunction for an acquittal, dismissal, or arrest that
occurred before the effective date of this Act is governed by the
law in effect at that time, and the former law is continued in
effect for that purpose.