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79R582 PEP-D
By: Dutton H.B. No. 435
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 placed under a custodial or
noncustodial arrest 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 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. 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, the] trial court [presiding over the case in
which the defendant was acquitted, if the trial court is a district
court, or a district court in the county in which the trial court is
located] 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 trial court shall advise the
defendant of the right to expunction. The defendant shall provide
to the district court all of the information required in a petition
for expunction under Section 2(b). The attorney for the defendant
in the case in which the defendant was acquitted, if the defendant
was represented by counsel, or the attorney for the state, if the
defendant was not represented by counsel, shall prepare the order
for the court's signature].
(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. Sections 3(a), (c), and (d), Article 55.02, Code
of Criminal Procedure, are amended to read as follows:
(a) In an order of expunction issued under this article, the
court shall require any state agency that sent information
concerning the arrest to a central federal depository to request
the 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 2a, 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 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).
(d) All returned receipts received by the clerk from
[notices of the hearing and] copies of the order shall be maintained
in the file on the proceedings under this chapter.
SECTION 4. 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), [(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 5. 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) [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) [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 6. Section 2, Article 55.02, Code of Criminal
Procedure, and Articles 55.05 and 102.006, Code of Criminal
Procedure, are repealed.
SECTION 7. (a) This Act applies only to the expunction of
arrest records related to:
(1) a criminal offense for which an acquittal occurred
on or after the effective date of this Act;
(2) a charge for an offense that was dismissed on or
after the effective date of this Act; or
(3) an arrest made on or after the effective date of
this Act.
(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.
SECTION 8. This Act takes effect September 1, 2005.