| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to protecting criminal history record information that is |
|
|
the subject of an order of expunction or an order of nondisclosure; |
|
|
providing penalties. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Sections 2(b), (c), and (f), Article 55.02, Code |
|
|
of Criminal Procedure, are amended to read as follows: |
|
|
(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; |
|
|
(3) the date the offense charged against the |
|
|
petitioner was alleged to have been committed; |
|
|
(4) the date the petitioner was arrested; |
|
|
(5) the name of the county where the petitioner 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; |
|
|
(7) the case number and court of offense; and |
|
|
(8) a list of all: |
|
|
(A) 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; |
|
|
(B) [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; and |
|
|
(C) private entities that compile and |
|
|
disseminate for compensation criminal history record information |
|
|
that the petitioner has reason to believe have information related |
|
|
to records or files that are subject to expunction. |
|
|
(c) The court shall set a hearing on the matter no sooner |
|
|
than thirty days from the filing of the petition and shall give to |
|
|
each official or agency or other governmental entity named in the |
|
|
petition reasonable notice of the hearing by: |
|
|
(1) certified mail, return receipt requested; or |
|
|
(2) if requested in writing by the petitioner, secure |
|
|
electronic mail or facsimile transmission. |
|
|
(f) An ex parte petition filed under Subsection (e) must be |
|
|
verified and must include the following or an explanation for why |
|
|
one or more of the following is not included: |
|
|
(1) the person'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 person; |
|
|
(3) the date the offense charged against the person |
|
|
was alleged to have been committed; |
|
|
(4) the date the person was arrested; |
|
|
(5) the name of the county where the person was |
|
|
arrested and if the arrest occurred in a municipality, the name of |
|
|
the municipality; |
|
|
(6) the name of the agency that arrested the person; |
|
|
(7) the case number and court of offense; and |
|
|
(8) a list of all: |
|
|
(A) 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; |
|
|
(B) [and of all] central federal depositories of |
|
|
criminal records that the person has reason to believe have records |
|
|
or files that are subject to expunction; and |
|
|
(C) private entities that compile and |
|
|
disseminate for compensation criminal history record information |
|
|
that the person has reason to believe have information relating to |
|
|
records or files that are subject to expunction. |
|
|
SECTION 2. Section 2a(c), Article 55.02, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(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: |
|
|
(A) 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; |
|
|
(B) [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 |
|
|
(C) private entities that compile and |
|
|
disseminate for compensation criminal history record information |
|
|
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). |
|
|
SECTION 3. Section 3, Article 55.02, Code of Criminal |
|
|
Procedure, is amended by amending Subsection (c) and adding |
|
|
Subsections (c-1) and (c-2) 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 to the Crime Records |
|
|
Service of the Department of Public Safety and to each official or |
|
|
agency or other governmental entity of this state or of any |
|
|
political subdivision of this state designated by the person who is |
|
|
the subject of the order. The certified copy of the order must be |
|
|
sent by secure electronic mail or facsimile transmission, if |
|
|
requested in writing by the person who is the subject of the order, |
|
|
or otherwise by certified mail, return receipt requested. In |
|
|
sending the order to a governmental [an] entity designated by the |
|
|
person, the clerk may elect to substitute hand delivery for |
|
|
certified mail under this subsection, but the clerk must receive a |
|
|
receipt for that hand-delivered order. |
|
|
(c-1) The Department of Public Safety shall notify any |
|
|
central federal depository of criminal records by any means, |
|
|
including secure electronic mail or facsimile 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). |
|
|
(c-2) The Department of Public Safety shall also provide, by |
|
|
secure electronic mail or facsimile transmission, notice of the |
|
|
order to any private entity that is named in the order or that |
|
|
purchases criminal history record information from the department. |
|
|
The notice must include an explanation of the effect of the order |
|
|
and a request that the entity destroy any information in the |
|
|
possession of the entity that is subject to the order. The |
|
|
department may charge to a private entity that purchases criminal |
|
|
history record information from the department a fee in an amount |
|
|
sufficient to recover costs incurred by the department in providing |
|
|
notice under this subsection to the entity. |
|
|
SECTION 4. Sections 5(a) and (f), Article 55.02, Code of |
|
|
Criminal Procedure, are amended to read as follows: |
|
|
(a) Except as provided by Subsection (f), on receipt of the |
|
|
order, each official or agency or other governmental entity named |
|
|
in the order shall: |
|
|
(1) return all records and files that are subject to |
|
|
the expunction order to the court or, if removal is impracticable, |
|
|
obliterate all portions of the record or file that identify the |
|
|
person who is the subject of the order and notify the court of its |
|
|
action; and |
|
|
(2) delete from its public records all index |
|
|
references to the records and files that are subject to the |
|
|
expunction order. |
|
|
(f) On receipt of an order granting expunction to a person |
|
|
entitled to expunction under Article 55.01(d), each official, |
|
|
agency, or other governmental entity named in the order: |
|
|
(1) shall: |
|
|
(A) obliterate all portions of the record or file |
|
|
that identify the petitioner; and |
|
|
(B) substitute for all obliterated portions of |
|
|
the record or file any available information that identifies the |
|
|
person arrested; and |
|
|
(2) may not return the record or file or delete index |
|
|
references to the record or file. |
|
|
SECTION 5. Section 411.081(g), Government Code, as amended |
|
|
by Chapters 177 and 1309, Acts of the 79th Legislature, Regular |
|
|
Session, 2005, and Section 411.081(g-1), Government Code, as added |
|
|
by Chapters 177 and 1309, Acts of the 79th Legislature, Regular |
|
|
Session, 2005, are reenacted as Sections 411.081(g), (g-1), (g-1a), |
|
|
and (g-1b) and amended to read as follows: |
|
|
(g) When an order of nondisclosure is issued under this |
|
|
subsection, the clerk of the court shall send to the Crime Records |
|
|
Service of the Department of Public Safety a copy of the order by: |
|
|
(1) certified mail, return receipt requested; or |
|
|
(2) if requested in writing by the petitioner, secure |
|
|
electronic mail or facsimile transmission. |
|
|
[(g) When an order of nondisclosure is issued under this
|
|
|
section, 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.] |
|
|
(g-1) Not later than 10 business days after receipt of the |
|
|
order, the Department of Public Safety shall seal any criminal |
|
|
history record information maintained by the department that is the |
|
|
subject of the order. The department shall also send a copy of the |
|
|
order by mail or secure electronic mail or facsimile transmission |
|
|
[means] to all: |
|
|
(1) 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; |
|
|
(2) central federal depositories of criminal records |
|
|
that there is reason to believe have criminal history record |
|
|
information that is the subject of the order; and |
|
|
(3) private entities that purchase criminal history |
|
|
record information from the department or that otherwise are likely |
|
|
to have criminal history record information that is subject to the |
|
|
order. |
|
|
[(g-1) The Department of Public Safety shall send a copy of
|
|
|
the order by mail or secure electronic mail or facsimile
|
|
|
transmission 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.] |
|
|
(g-1a) [(g-1)] Not later than 30 business days after receipt |
|
|
of an order from the Department of Public Safety under Subsection |
|
|
(g-1) [(g)], an individual or entity described by Subsection |
|
|
(g-1)(1) [(g)(1)] shall seal any criminal history record |
|
|
information maintained by the individual or entity that is the |
|
|
subject of the order. |
|
|
(g-1b) The department may charge to a private entity that |
|
|
purchases criminal history record information from the department a |
|
|
fee in an amount sufficient to recover costs incurred by the |
|
|
department in providing a copy of an order under Subsection |
|
|
(g-1)(3) to the entity. |
|
|
SECTION 6. Subchapter F, Chapter 411, Government Code, is |
|
|
amended by adding Sections 411.0835 and 411.0851 to read as |
|
|
follows: |
|
|
Sec. 411.0835. PROHIBITION AGAINST DISSEMINATION TO |
|
|
CERTAIN PRIVATE ENTITIES. If the department receives information |
|
|
indicating that a private entity that purchases criminal history |
|
|
record information from the department has been found by a court to |
|
|
have committed three or more violations of Section 552.1425 by |
|
|
compiling or disseminating information with respect to which an |
|
|
order of expunction or an order of nondisclosure has been issued, |
|
|
the department may not release any criminal history record |
|
|
information to that entity until the first anniversary of the date |
|
|
of the most recent violation. |
|
|
Sec. 411.0851. DUTY OF PRIVATE ENTITY TO UPDATE CRIMINAL |
|
|
HISTORY RECORD INFORMATION; CIVIL LIABILITY. (a) A private entity |
|
|
that compiles and disseminates for compensation criminal history |
|
|
record information shall destroy and may not disseminate any |
|
|
information in the possession of the entity with respect to which |
|
|
the entity has received notice that: |
|
|
(1) an order of expunction has been issued under |
|
|
Article 55.02, Code of Criminal Procedure; or |
|
|
(2) an order of nondisclosure has been issued under |
|
|
Section 411.081(d). |
|
|
(b) A private entity described by Subsection (a) that |
|
|
purchases criminal history record information from the department |
|
|
or from another governmental agency or entity in this state: |
|
|
(1) subject to Subsection (c), may disseminate that |
|
|
information only if the entity originally obtains or verifies the |
|
|
information within the 90-day period preceding the date of |
|
|
dissemination; and |
|
|
(2) shall notify the department if the entity sells |
|
|
any compilation of the information to another similar entity. |
|
|
(c) A private entity that disseminates information in |
|
|
violation of this section is liable for any damages that are |
|
|
sustained as a result of the violation by the person who is the |
|
|
subject of that information. A person who prevails in an action |
|
|
brought under this section is also entitled to recover court costs |
|
|
and reasonable attorney's fees. |
|
|
SECTION 7. Section 411.085(d), Government Code, is amended |
|
|
to read as follows: |
|
|
(d) The department shall provide a copy of this section to: |
|
|
(1) each person who applies for access to criminal |
|
|
history record information maintained by the department; and |
|
|
(2) each private entity that purchases criminal |
|
|
history record information from the department [with a copy of this
|
|
|
section]. |
|
|
SECTION 8. The heading to Section 552.1425, Government |
|
|
Code, is amended to read as follows: |
|
|
Sec. 552.1425. CIVIL PENALTY: DISSEMINATION [RECORDS] OF |
|
|
CERTAIN CRIMINAL HISTORY INFORMATION [DEFERRED ADJUDICATIONS]. |
|
|
SECTION 9. Sections 552.1425(a) and (b), Government Code, |
|
|
are amended to read as follows: |
|
|
(a) A private entity that compiles and disseminates for |
|
|
compensation criminal history record information may not compile or |
|
|
disseminate information with respect to which the entity has |
|
|
received notice that: |
|
|
(1) an order of expunction has been issued under |
|
|
Article 55.02, Code of Criminal Procedure; or |
|
|
(2) 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 $1,000 [$500] for each subsequent |
|
|
violation. |
|
|
SECTION 10. Section 411.081(j), Government Code, is |
|
|
repealed. |
|
|
SECTION 11. (a) The change in law made by this Act to |
|
|
Article 55.02, Code of Criminal Procedure, applies to a person |
|
|
seeking expunction of arrest records and files regardless of |
|
|
whether the arrest occurred before, on, or after the effective date |
|
|
of this Act. |
|
|
(b) The change in law made by this Act to Section 411.081, |
|
|
Government Code, applies to any order issued under that section on |
|
|
or after the effective date of this Act. |
|
|
(c) The change in law made by this Act in adding Section |
|
|
411.0835, Government Code, and in repealing Section 411.081(j), |
|
|
Government Code, applies to any private entity that purchases |
|
|
criminal history record information from the Texas Department of |
|
|
Criminal Justice and that, as found by a court, commits a third or |
|
|
subsequent violation of Section 552.1425, Government Code, on or |
|
|
after the effective date of this Act. |
|
|
(d) The change in law made by this Act in adding Section |
|
|
411.0851, Government Code, applies to any dissemination of |
|
|
information that occurs on or after the effective date of this Act. |
|
|
(e) The change in law made by this Act to Section 552.1425, |
|
|
Government Code, applies to any private entity that receives notice |
|
|
under Subsection (a) of that section on or after the effective date |
|
|
of this Act. |
|
|
SECTION 12. This Act takes effect September 1, 2007. |