By: West S.B. No. 1477
(In the Senate - Filed March 13, 2003; March 20, 2003, read
first time and referred to Committee on Criminal Justice;
May 12, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; May 12, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1477 By: Ellis
A BILL TO BE ENTITLED
AN ACT
relating to restrictions on the disclosure of certain criminal
records and to the duty of law enforcement agencies regarding
records associated with certain defendants receiving deferred
adjudication; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Article 55.01, Code of Criminal
Procedure, is amended to read as follows:
(a) A person who has been placed under a custodial or
noncustodial arrest [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) each of the following conditions exist:
(A) an indictment or information charging the
person with commission of a felony has not been presented against
the person for an offense arising out of the transaction for which
the person was arrested or, if an indictment or information
charging the person with commission of a felony was presented, the
indictment 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 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony
in the five years preceding the date of the arrest.
SECTION 2. Subsection (a), Section 2, Article 55.02, Code
of Criminal Procedure, is amended to read as follows:
(a) A person who is entitled to expunction of records and
files under Article 55.01(a) or (d) [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
(3) the offense was alleged to have occurred.
SECTION 3. Article 55.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 55.03. EFFECT OF EXPUNCTION. When the order of
expunction is final:
(1) the release, dissemination, or use of the expunged
records and files for any purpose other than a purpose described by
Section 411.083(a) or (b)(1) or (3), Government Code, is
prohibited;
(2) except as provided in Subdivision 3 of this
article, the person arrested may deny the occurrence of the arrest
and the existence of the expunction order; and
(3) the person arrested or any other person, when
questioned under oath in a criminal proceeding about an arrest for
which the records have been expunged, may state only that the matter
in question has been expunged.
SECTION 4. Section 411.081, Government Code, is amended by
adding Subsections (d) through (g) to read as follows:
(d) Notwithstanding any other provision of this subchapter,
if a person is placed on deferred adjudication community
supervision under Section 5, Article 42.12, Code of Criminal
Procedure, subsequently receives a discharge and dismissal under
Section 5(c), Article 42.12, and satisfies the requirements of
Subsection (e), the person may petition the court that placed the
defendant on deferred adjudication for an order of nondisclosure
under this subsection. After notice to the state and a hearing on
whether the person is entitled to file the petition and issuance of
the order is in the best interest of justice, the court shall issue
an order prohibiting criminal justice agencies from disclosing to
the public criminal history record information related to the
offense giving rise to the deferred adjudication. A person may
petition the court for an order of nondisclosure on or after:
(1) the discharge and dismissal, if the offense for
which the person was placed on deferred adjudication was a
misdemeanor other than a misdemeanor described by Subdivision (2);
(2) the fifth anniversary of the discharge and
dismissal, if the offense for which the person was placed on
deferred adjudication was a misdemeanor under Chapter 20, 21, 22,
25, 42, or 46, Penal Code; or
(3) the 10th anniversary of the discharge and
dismissal, if the offense for which the person was placed on
deferred adjudication was a felony.
(e) A person is entitled to petition the court under
Subsection (d) only if during the applicable period described by
Subsection (d)(1), (2), or (3), as appropriate, the person is not
convicted of or placed on deferred adjudication community
supervision under Section 5, Article 42.12, Code of Criminal
Procedure, for any offense other than an offense under the
Transportation Code punishable by fine only. A person is not
entitled to petition the court under Subsection (d) if the person
has been previously convicted or placed on deferred adjudication
for:
(1) an offense requiring registration as a sex
offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Section 20.04, Penal Code,
regardless of whether the offense is a reportable conviction or
adjudication for purposes of Chapter 62, Code of Criminal
Procedure;
(3) an offense under Section 19.02, 19.03, 22.04,
22.041, 25.07, or 42.072, Penal Code; or
(4) any other offense involving family violence, as
defined by Section 71.004, Family Code.
(f) For purposes of Subsection (d), a person is considered
to have been placed on deferred adjudication community supervision
if, regardless of the statutory authorization:
(1) the person entered a plea of guilty or nolo
contendere;
(2) the judge deferred further proceedings without
entering an adjudication of guilt and placed the person under the
supervision of the court or an officer under the supervision of the
court; and
(3) at the end of the period of supervision the judge
dismissed the proceedings and discharged the person.
(g) When an order of nondisclosure is issued under this
subsection, the clerk of the court shall send a copy of the order by
certified mail, return receipt requested, to the Crime Records
Service of the Department of Public Safety. The Department of
Public Safety shall send a copy of the order to 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 to all central federal depositories
of criminal records that there is reason to believe have criminal
history record information that is the subject of the order.
SECTION 5. Subchapter C, Chapter 552, Government Code, is
amended by adding Sections 552.142 and 552.1425 to read as follows:
Sec. 552.142. EXCEPTION: RECORDS OF CERTAIN DEFERRED
ADJUDICATIONS. (a) Information is excepted from the requirements
of Section 552.021 if an order of nondisclosure with respect to the
information has been issued under Section 411.081(d).
(b) A person who is the subject of information that is
excepted from the requirements of Section 552.021 under this
section may deny the occurrence of the arrest and prosecution to
which the information relates and the exception of the information
under this section, unless the information is being used against
the person in a subsequent criminal proceeding.
Sec. 552.1425. CIVIL PENALTY: RECORDS OF CERTAIN DEFERRED
ADJUDICATIONS. (a) A private entity that compiles and
disseminates for compensation criminal history record information
may not compile or disseminate information with respect to which an
order of nondisclosure has been issued under Section 411.081(d).
(b) A district court may issue a warning to a private entity
for a first violation of Subsection (a). After receiving a warning
for the first violation, the private entity is liable to the state
for a civil penalty not to exceed $500 for each subsequent
violation.
(c) The attorney general or an appropriate prosecuting
attorney may sue to collect a civil penalty under this section.
(d) A civil penalty collected under this section shall be
deposited in the state treasury to the credit of the general revenue
fund.
SECTION 6. (a) This Act takes effect September 1, 2003.
(b) The changes in law made by this Act to Chapter 55, Code
of Criminal Procedure, apply to a person seeking expunction of
records and files relating to an arrest regardless of whether the
arrest occurred before, on, or after the effective date of this Act.
(c) The changes in law made by this Act to Section 411.081,
Government Code, as amended by this Act, and Sections 552.142 and
552.1425, Government Code, as added by this Act, apply to
information related to a deferred adjudication or similar procedure
described by Subsection (f), Section 411.081, Government Code, as
added by this Act, regardless of whether the deferred adjudication
or procedure is entered before, on, or after the effective date of
this Act.
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