By: Carona S.B. No. 2221

(In the Senate - Filed March 13, 2009; March 31, 2009, read first time and referred to Committee on Jurisprudence; April 24, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 4, Nays 0; April 24, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 2221 By: Hinojosa

A BILL TO BE ENTITLED

AN ACT

relating to the eligibility of certain criminal defendants for an order of nondisclosure.

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

SECTION 1. Section 411.081, Government Code, is amended by amending Subsections (d) and (e) and adding Subsection (e-1) to read as follows:

(d) Notwithstanding any other provision of this subchapter, if a person is placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, subsequently receives a discharge and dismissal under Section 5(c), Article 42.12, and satisfies the requirements of Subsection (e) and, if applicable, Subsection (e-1), the person may petition the court that placed the defendant on deferred adjudication for an order of nondisclosure under this subsection. Except as provided by Subsection (e), a person may petition the court under this subsection regardless of whether the person has been previously placed on deferred adjudication community supervision for another offense. After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication. A criminal justice agency may disclose criminal history record information that is the subject of the order only to other criminal justice agencies, for criminal justice or regulatory licensing purposes, an agency or entity listed in Subsection (i), or the person who is the subject of the order. A person may petition the court that placed the person on deferred adjudication for an order of nondisclosure on payment of a $28 fee to the clerk of the court in addition to any other fee that generally applies to the filing of a civil petition. The payment may be made only on or after:

(1) the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor other than a misdemeanor described by Subdivision (2);

(2) the second anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46, Penal Code; [or]

(3) the fifth anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a felony, except as provided by Subdivision (4); or

(4) the 10th anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was an offense under Section 21.11 or 22.011, Penal Code, and the person satisfies the requirements of Subsection (e-1).

(e) A person is entitled to petition the court under Subsection (d) only if during the period of the deferred adjudication community supervision for which the order of nondisclosure is requested and during the applicable period described by Subsection (d)(1), (2), [or] (3), or (4), as appropriate, the person is not convicted of or placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, for any offense other than an offense under the Transportation Code punishable by fine only. A person is not entitled to petition the court under Subsection (d) if the person was placed on the deferred adjudication community supervision for or has been previously convicted or placed on any other deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure, except as otherwise provided by Subsection (e-1);

(2) an offense under Section 20.04, Penal Code, regardless of whether the offense is a reportable conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;

(3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or 42.072, Penal Code; or

(4) any other offense involving family violence, as defined by Section 71.004, Family Code.

(e-1) A person is entitled to petition the court under Subsection (d) if the person, after having been placed on deferred adjudication community supervision for an offense under Section 21.11 or 22.011, Penal Code, satisfies the requirements of Subsection (e), provided that:

(1) the person has not been previously convicted or placed on any other deferred adjudication for an offense described by Subsection (e)(1), (2), (3), or (4), including an offense under Section 21.11 or 22.011, Penal Code;

(2) at the time the plea was entered, state law provided that the registration requirements under Chapter 62, Code of Criminal Procedure, would not apply to the person after the applicable period of supervision was terminated;

(3) the offense was based solely on the ages of the person and the victim at the time of the offense;

(4) at the time of the offense, the person was not more than four years older than the victim and the victim was at least 13 years of age; and

(5) the victim cannot be located after reasonable diligence or is otherwise unavailable at the time of the petition or, if available, filed with the court an affidavit stating that the victim has no objection to the court granting the petition or is neutral as to whether the court grants the petition.

SECTION 2. The change in law made by this Act in amending Section 411.081, Government Code, applies to a person who petitions the court for an order of nondisclosure on or after the effective date of this Act, regardless of whether the person is placed on deferred adjudication community supervision before, on, or after that date.

SECTION 3. This Act takes effect September 1, 2009.

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