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A BILL TO BE ENTITLED
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AN ACT
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relating to the automatic expunction of criminal records. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 55.01(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) A person who has been placed under a custodial or |
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noncustodial arrest for commission of either a felony or |
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misdemeanor is entitled to have all records and files relating to |
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the arrest expunged if: |
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(1) the person is tried for the offense for which the |
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person was arrested and is: |
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(A) acquitted by the trial court, except as |
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provided by Subsection (c) [of this section]; or |
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(B) convicted and subsequently pardoned; or |
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(2) either [each] of the following conditions exists |
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[exist]: |
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(A) an indictment, complaint, or information |
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charging the person with commission of an offense [a felony] has not |
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been presented against the person for an offense arising out of the |
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transaction for which the person was arrested before the second |
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anniversary of the date of the arrest; or |
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(B) [,] if an indictment, complaint, or |
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information charging the person with commission of an offense [a
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felony] was presented, the indictment, complaint, or information |
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has been dismissed or quashed [, and:
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[(i)
the limitations period expired before
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the date on which a petition for expunction was filed under Article
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55.02; or
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[(ii)
the court finds that the indictment
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or information was dismissed or quashed because the presentment had
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been made because of mistake, false information, or other similar
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reason indicating absence of probable cause at the time of the
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dismissal to believe the person committed the offense or because it
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was void;
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[(B)
the person has been released and the charge,
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if any, has not resulted in a final conviction and is no longer
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pending and there was no court ordered community supervision under
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Article 42.12 for any offense other than a Class C misdemeanor; and
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[(C)
the person has not been convicted of a
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felony in the five years preceding the date of the arrest]. |
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SECTION 2. Section 1, Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 1. (a) The [At the request of the defendant and after
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notice to the state, the] trial court [presiding over the case in
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which the defendant was acquitted, if the trial court is a district
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court, or a district court in the county in which the trial court is
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located] shall enter an order of expunction for a person entitled to |
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expunction because: |
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(1) the person was acquitted; |
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(2) the person was pardoned; or |
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(3) the offense was dismissed [under Article
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55.01(a)(1)(A) not later than the 30th day after the date of the
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acquittal. Upon acquittal, the trial court shall advise the
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defendant of the right to expunction. The defendant shall provide
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to the district court all of the information required in a petition
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for expunction under Section 2(b). The attorney for the defendant
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in the case in which the defendant was acquitted, if the defendant
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was represented by counsel, or the attorney for the state, if the
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defendant was not represented by counsel, shall prepare the order
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for the court's signature]. |
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(b) The attorney representing the state whose office would |
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have prosecuted the offense shall bring a motion for expunction for |
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a person who was arrested but against whom an indictment, |
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complaint, or information is not filed before the second |
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anniversary of the date of arrest. |
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(c) The court shall enter an order of expunction under this |
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section not later than the 30th day after the date of acquittal, |
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pardon, dismissal, or filing of the motion by the attorney |
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representing the state. The court shall include in the order a |
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listing of each official, agency, or other entity of this state or |
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political subdivision of this state and each private entity that |
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there is reason to believe has any record or file that is subject to |
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the order. |
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SECTION 3. Section 2a, Article 55.02, Code of Criminal |
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Procedure, is amended by adding Subsection (e) to read as follows: |
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(e) The director of the Department of Public Safety or the |
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director's authorized representative may file on behalf of a person |
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under this section the application described by Subsection (a). |
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The application must be verified and must include all of the |
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information otherwise required of an application under this |
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section, including the information described by Subsections (c)(1) |
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and (3). The director of the Department of Public Safety or the |
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director's authorized representative shall forward a copy of the |
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application to the district court for the county in which the |
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person resides and shall request the court to enter an order |
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directing expunction based on an entitlement to expunction under |
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Article 55.01(d). On receipt of a request under this subsection, |
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the court shall, without holding a hearing on the matter, enter a |
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final order directing expunction. |
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SECTION 4. Sections 3(a), (c), and (d), Article 55.02, Code |
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of Criminal Procedure, are amended to read as follows: |
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(a) In an order of expunction issued under this article, the |
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court shall require any state agency that sent information |
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concerning the arrest to a central federal depository to request |
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the depository to return all records and files subject to the order |
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of expunction. A [The] person who is the subject of an [the] |
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expunction order under Section 2a, or an agency protesting the |
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expunction, may appeal the court's decision in the same manner as in |
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other civil cases. |
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(c) When the order of expunction is final, the clerk of the |
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court shall send a certified copy of the order to the Crime Records |
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Service of the Department of Public Safety and to each official or |
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agency or other governmental entity of this state or of any |
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political subdivision of this state named in [designated by the
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person who is the subject of] the order. The certified copy of the |
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order must be sent by secure electronic mail, electronic |
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transmission, or facsimile transmission or otherwise by certified |
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mail, return receipt requested. In sending the order to a |
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governmental entity named in the order [designated by the person], |
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the clerk may elect to substitute hand delivery for certified mail |
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under this subsection, but the clerk must receive a receipt for that |
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hand-delivered order. |
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(d) Any returned receipts received by the clerk from |
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[notices of the hearing and] copies of the order shall be maintained |
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in the file on the proceedings under this chapter. |
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SECTION 5. Section 4, Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 4. (a) If the state establishes that the person who is |
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the subject of an expunction order is still subject to conviction |
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for an offense arising out of the transaction for which the person |
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was arrested because the statute of limitations has not run and |
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there is reasonable cause to believe that the state may proceed |
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against the person for the offense, the court may provide in its |
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order that the law enforcement agency and the prosecuting attorney |
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responsible for investigating the offense may retain any records |
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and files that are necessary to the investigation. |
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(b) In the case of a person who is the subject of an |
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expunction order on the basis of an acquittal, the court may provide |
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in the expunction order that the law enforcement agency and the |
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prosecuting attorney retain records and files if: |
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(1) the records and files are necessary to conduct a |
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subsequent investigation and prosecution of a person other than the |
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person who is the subject of the expunction order; or |
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(2) the state establishes that the records and files |
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are necessary for use in: |
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(A) another criminal case, including a |
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prosecution, motion to adjudicate or revoke community supervision, |
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parole revocation hearing, mandatory supervision revocation |
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hearing, punishment hearing, or bond hearing; or |
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(B) a civil case, including a civil suit or suit |
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for possession of or access to a child. |
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(c) [(b)] Unless the person who is the subject of the |
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expunction order is again arrested for or charged with an offense |
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arising out of the transaction for which the person was arrested or |
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unless the court provides for the retention of records and files |
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under Subsection (b), [(a) of this section, the provisions of] |
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Articles 55.03 and 55.04 [of this code] apply to files and records |
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retained under this section. |
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SECTION 6. Section 5(c), Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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(c) Except in the case of a person who is the subject of an |
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expunction order based on an entitlement under Article 55.01(d) and |
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except as provided by Subsection (g), if an order of expunction is |
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issued under this article, the court records concerning expunction |
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proceedings are not open for inspection by anyone except the person |
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who is the subject of the order unless the order permits retention |
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of a record under Section 4(a) [4 of this article] and the person is |
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again arrested for or charged with an offense arising out of the |
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transaction for which the person was arrested or unless the court |
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provides for the retention of records and files under Section 4(b) |
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[4(a) of this article]. The clerk of the court issuing the order |
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shall obliterate all public references to the proceeding and |
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maintain the files or other records in an area not open to |
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inspection. |
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SECTION 7. The following provisions of the Code of Criminal |
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Procedure are repealed: |
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(1) Subsection (a-1), Article 55.01; |
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(2) Section 2, Article 55.02; |
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(3) Article 55.05; and |
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(4) Article 102.006. |
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SECTION 8. (a) This Act applies only to the expunction of |
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arrest records related to: |
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(1) a criminal offense for which an acquittal occurred |
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on or after the effective date of this Act; |
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(2) a charge for an offense that was dismissed on or |
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after the effective date of this Act; or |
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(3) an arrest made on or after the effective date of |
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this Act. |
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(b) Expunction for an acquittal, dismissal, or arrest that |
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occurred before the effective date of this Act is governed by the |
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law in effect at that time, and the former law is continued in |
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effect for that purpose. |
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SECTION 9. This Act takes effect September 1, 2009. |