By: Veasey, Hodge (Senate Sponsor - Harris) H.B. No. 3481

(In the Senate - Received from the House May 7, 2009; May 7, 2009, read first time and referred to Committee on Criminal Justice; May 21, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 0; May 21, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR H.B. No. 3481 By: Whitmire

A BILL TO BE ENTITLED

AN ACT

relating to the right to an expunction of records and files relating to a person's arrest.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Articles 55.01(a) and (b), Code of Criminal Procedure, are 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) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending, provided that there was no court-ordered community supervision under Article 42.12 for the offense and that [each of the following conditions exist]:

(A) an indictment or information charging the person with the commission of a felony or misdemeanor:

(i) was [has] not [been] presented against the person for the [an] offense at any time before the date of the petition for expunction, and more than 180 days have elapsed from the date of the person's arrest for the offense; [arising out of the transaction for which the person was arrested] or

(ii) regardless of whether there is no statute of limitations for the offense, was[, 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, if the offense was a felony, more than 180 days have elapsed from the date the indictment or information was 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; or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired [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].

(b) Except as provided by Subsection (c) [of this section], a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 [of this code] if:

(1) the person is:

(A) [(1)] tried for the offense for which the person was arrested;

(B) [(2)] convicted of the offense; and

(C) [(3)] acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or

(2) an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.

SECTION 2. Article 55.01(a-1), Code of Criminal Procedure, is repealed.

SECTION 3. The change in law made by this Act applies to a person seeking expunction of records relating to an arrest regardless of whether the arrest occurred before, on, or after the effective date of this Act.

SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

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