BILL ANALYSIS
Senate Research Center S.B. 1071
AUTHOR'S/SPONSOR'S STATEMENT OF INTENT
S.B. 1477, 78th Legislature, Regular Session, 2003, allows some persons who have successfully completed deferred adjudication to apply to the sentencing court for an order of nondisclosure that seals records of the offense from public view. The legislation continues to attract statewide interest.
Many people who agreed to accept deferred adjudication did so under the premise, as told by defense and prosecutors, that the records would not appear as part of criminal history records. This has not been the case. In recent years, many companies have implemented background checks as part of pre-employment screening practices. The result is that applicants, even after having their cases dismissed by courts, are denied employment and other privileges, such as the ability to rent an apartment. There are also state licensing implications.
While criminal justice agencies have access to records sealed under S.B. 1477 for use in the case of a later offense, many other state noncriminal justice agencies currently have access to those records. The result is that persons who have had cases officially dismissed suffer many of the same disabilities associated with having a criminal conviction.
There is confusion at the court level over proper fees that should be paid by those petitioning the courts to have their records sealed under S.B. 1477. It is also unclear at the court level whether a person who has previously received deferred adjudication or has otherwise been under court supervision is eligible to petition to have the person's records sealed. In addition, questions have been raised that address the ability to provide effective enforcement for background check companies found in violation of S.B. 1477 in disclosing sealed records.
As proposed, S.B. 1071 addresses those issues raised, its goal being to restore the integrity of deferred adjudication by helping those who have satisfied justice and gained court approval to pursue a more productive lifestyle. S.B. 1071 clarifies whether a person who is otherwise eligible can apply to the courts to have the person's deferred adjudication sealed if the person has a previous offense; clarifies the proper fees that can be charged by counties to persons who petition to have their records sealed; uses a vulnerable population standard in limiting the access of some noncriminal justice agencies to sealed records; shortens the eligibility time following dismissal wherein a person may apply for an order of nondisclosure; sets time limits for the Department of Public Safety to notify counties that a record has been sealed; and provides additional enforcement abilities to address background check companies that disclose lawfully sealed records.
RULEMAKING AUTHORITY
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 411.081, Government Code, by amending Subsections (d) and (g) and by adding Subsections (g-1), (i), and (j), as follows:
(d) Authorizes a person, except as provided by Subsection (e), who was placed on deterred adjudication community supervision and subsequently received a discharge and dismissal to petition the court for an order of nondisclosure regardless of whether the person has been previously convicted of or placed on deferred adjudication community supervision for an offense. Authorizes a criminal justice agency to disclose criminal history record information that is the subject of an order only to other criminal justice agencies, an agency listed in Subsection (i), or to the person who is the subject of the order, rather than to an individual or agency described by Section 411.083(b)(1), (2), or (3). Authorizes a person to file an ex parte petition with the court that placed the person on deferred adjudication, rather than petition the court, for an order of nondisclosure on payment of a certain fee. Provides that the fee is in addition to any other fee that generally applies to the filing of a civil petition. Modifies the due date for the payment.
(g) Requires the Department of Public Safety (DPS), not later than 10 business days after the receipt of the nondisclosure order, to seal any criminal history record information maintained by DPS that is the subject of the order. Includes private entities that purchase criminal record information from DPS in the list of entities to which DPS is required to send a copy of the order. Makes nonsubstantive changes.
(g-1) Requires certain law enforcement-related officials, agencies, or entities of the state, not later than 30 days after the receipt of a nondisclosure order, to seal any criminal history record information maintained by the individual or entity that is the subject of the order.
(i) Sets forth the noncriminal justice agencies or entities to which a criminal justice agency may disclose criminal history record information that is the subject of an order of nondisclosure.
(j) Prohibits DPS, if DPS receives information indicating that a private entity that purchases criminal history record information from DPS has been found by a court to have committed five or more violations of Section 552.1425, Government Code, by compiling or disseminating information with respect to which an order of nondisclosure has been issued, from releasing any criminal history record information to that entity until the first anniversary of the date of the most recent violation.
SECTION 2. Provides that the changes in law made by this Act relating to a person's eligibility for an order of nondisclosure apply to criminal history record related to a deferred adjudication or certain similar procedure regardless of whether the deferred adjudication or procedure is entered into before, on, or after the effective date of this Act.
SECTION 3. Effective date: September 1, 2005.