By: West S.B. No. 566
(In the Senate - Filed February 18, 2003; February 24, 2003,
read first time and referred to Committee on Criminal Justice;
March 24, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 0; March 24, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 566 By: Williams
A BILL TO BE ENTITLED
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.
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