S.B. No. 566




AN ACT
relating to the duties of law enforcement regarding the misuse of a person's identity and to the person's right to expunction of identifying information contained in certain records and files. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.28 to read as follows: Art. 2.28. DUTIES REGARDING MISUSED IDENTITY. On receipt of information to the effect that a person's identifying information was falsely given by a person arrested as the arrested person's identifying information, the local law enforcement agency responsible for collecting identifying information on arrested persons in the county in which the arrest was made shall: (1) notify the person that: (A) the person's identifying information was misused by another person arrested in the county; (B) the person may file a declaration with the Department of Public Safety under Section 411.0421, Government Code; and (C) the person is entitled to expunction of information contained in criminal records and files under Chapter 55 of this code; and (2) notify the Department of Public Safety regarding: (A) the misuse of the identifying information; (B) the actual identity of the person arrested, if known by the agency; and (C) whether the agency was able to notify the person whose identifying information was misused. SECTION 2. Subsections (a) and (b), Section 2, Article 55.02, Code of Criminal Procedure, are amended to read as follows: (a) A person who is entitled to expunction of records and files under Article 55.01(a)(1)(B) or[,] 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; or (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 [(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; (2) the offense charged against the petitioner [or the person described by Subsection (a)(2)]; (3) the date the offense charged against the petitioner [or the person described by Subsection (a)(2)] was alleged to have been committed; (4) the date the petitioner [or the person described by Subsection (a)(2)] was arrested; (5) the name of the county where the petitioner [or the person described by Subsection (a)(2)] was arrested and if the arrest occurred in a municipality, the name of the municipality; (6) the name of the agency that arrested the petitioner [or the person described by Subsection (a)(2)]; (7) the case number and court of offense; and (8) 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. SECTION 3. Article 55.02, Code of Criminal Procedure, is amended by adding Section 2a to read as follows: Sec. 2a. (a) A person who is entitled to expunction of information contained in records and files under Article 55.01(d) may file an application for expunction with the attorney representing the state in the prosecution of felonies in the county in which the person resides. (b) The application must be verified, include authenticated fingerprint records of the applicant, and include the following or an explanation for why one or more of the following is not included: (1) the applicant's full name, sex, race, date of birth, driver's license number, social security number, and address at the time the person who falsely identified himself or herself as the applicant was arrested; (2) the following information regarding the arrest: (A) the date of arrest; (B) the offense charged against the person arrested; (C) the name of the county or municipality in which the arrest occurred; and (D) the name of the arresting agency; and (3) a statement that: (A) the applicant is not the person arrested and for whom the arrest records and files were created; and (B) the applicant did not give the person arrested consent to falsely identify himself or herself as the applicant. (c) After verifying the allegations in an application received under Subsection (a), the attorney representing the state shall: (1) include on the application information regarding the arrest that was requested of the applicant but was unknown by the applicant; (2) forward a copy of the application to the district court for the county; (3) attach to the copy 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 are reasonably likely to have records or files containing information that is subject to expunction; and (4) request the court to enter an order directing expunction based on an entitlement to expunction under Article 55.01(d). (d) On receipt of a request under Subsection (c), the court shall, without holding a hearing on the matter, enter a final order directing expunction. SECTION 4. Subsection (c), Section 3, Article 55.02, Code of Criminal Procedure, is amended to read as follows: (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 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 depository, as appropriate, either: (1) destroy or return to the court the records in possession of the depository that are subject to the order, including any information with respect to the order; or (2) comply with Section 5(f) of this article pertaining to information contained in records and files of a person entitled to expunction under Article 55.01(d)[, be destroyed or returned to the court]. SECTION 5. Article 60.19, Code of Criminal Procedure, is amended to read as follows: Art. 60.19. INFORMATION RELATED TO MISUSED IDENTITY. (a) On receipt of information from a local law enforcement agency under Article 2.28, the department shall: (1) provide the notice described by Subdivision (1) of that article to the person whose identity was misused, if the local law enforcement agency was unable to notify the person under that subdivision; (2) take action to ensure that the information maintained in the computerized criminal history system reflects the use of the person's identity as a stolen alias; and (3) notify the Texas Department of Criminal Justice that the person's identifying information may have been falsely used by an inmate in the custody of the department. (b) On receipt of a declaration under Section 411.0421, Government Code, or on receipt of information similar to that contained in a declaration, the department shall separate information maintained in the computerized criminal history system regarding an individual whose identity has been misused from information maintained in that system regarding the person who misused the identity. SECTION 6. Chapter 493, Government Code, is amended by adding Section 493.0155 to read as follows: Sec. 493.0155. PROPER IDENTIFICATION OF INMATES USING ALIAS. On receipt of information from the Department of Public Safety under Article 60.19, Code of Criminal Procedure, that a person's identifying information may have been falsely used by an inmate as the inmate's identifying information, regardless of whether the inmate is in the custody of the department, is serving a period of supervised release, or has been discharged, the department shall: (1) make a reasonable effort to identify the inmate's actual identity; and (2) take action to ensure that any information maintained in the department's records and files regarding the inmate reflects the inmate's use of the person's identity as a stolen alias and refers to available information concerning the inmate's actual identity. SECTION 7. Subsection (e), Section 2, Article 55.02, Code of Criminal Procedure, is repealed. SECTION 8. This Act takes effect September 1, 2003.
______________________________ ______________________________ President of the Senate Speaker of the House
I hereby certify that S.B. No. 566 passed the Senate on April 3, 2003, by a viva-voce vote. ______________________________ Secretary of the Senate I hereby certify that S.B. No. 566 passed the House on May 25, 2003, by a non-record vote. ______________________________ Chief Clerk of the House Approved: ______________________________ Date ______________________________ Governor