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.