|
|
|
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. 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) each of the following conditions exist: |
|
(A) an indictment, [or] information, or |
|
complaint charging the person with the commission of a felony or |
|
misdemeanor arising out of the transaction for which the person was |
|
arrested: |
|
(i) has not been presented against the |
|
person and: |
|
(a) for an arrest based on a felony, |
|
the limitations period expired before the date on which a petition |
|
for expunction was filed under Article 55.02 or, for an arrest based |
|
on a misdemeanor, at least 180 days have elapsed from the date of |
|
the arrest; or |
|
(b) in response to the petition for |
|
expunction, the court finds by a preponderance of the evidence that |
|
the indictment, information, or complaint has not been presented |
|
against the person because of mistake, false information, or other |
|
similar reason indicating absence of probable cause to believe the |
|
person committed the offense; or |
|
(ii) has been [for an offense arising out of
|
|
the transaction for which the person was arrested or, if an
|
|
indictment or information charging the person with commission of a
|
|
felony was] presented against the person, but was subsequently [the
|
|
indictment or information has been] dismissed or quashed, and: |
|
(a) for an arrest based on a felony, |
|
[(i)] the limitations period expired before the date on which a |
|
petition for expunction was filed under Article 55.02 or, for an |
|
arrest based on a misdemeanor, at least 180 days have elapsed from |
|
the date of the arrest; or |
|
(b) in response to the petition for |
|
expunction, [(ii)] the court finds by a preponderance of the |
|
evidence that the indictment, [or] information, or complaint was |
|
dismissed or quashed because the person successfully completed a |
|
pretrial intervention program authorized under Section 76.011, |
|
Government Code, because the person received a discharge and |
|
dismissal with respect to the offense under Section 20(a), Article |
|
42.12, [or] 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 the indictment, |
|
information, or complaint [it] was void; |
|
(B) the person has been released and: |
|
(i) the charge, if any, has not resulted in |
|
a final conviction and is no longer pending; and |
|
(ii) there was no court-ordered [court
|
|
ordered] community supervision under Article 42.12 for any offense |
|
other than for an offense punishable as a Class C misdemeanor or an |
|
offense with respect to which the person received a discharge and |
|
dismissal under Section 20(a), Article 42.12; and |
|
(C) the person has not been convicted of a felony |
|
in the five years preceding the date of the arrest. |
|
SECTION 2. Section 20(a), Article 42.12, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
(a) At any time after the defendant has satisfactorily |
|
completed one-third of the original community supervision period or |
|
two years of community supervision, whichever is less, the period |
|
of community supervision may be reduced or terminated by the |
|
judge. On completion of one-half of the original community |
|
supervision period or two years of community supervision, whichever |
|
is more, the judge shall review the defendant's record and consider |
|
whether to reduce or terminate the period of community supervision, |
|
unless the defendant is delinquent in paying required restitution, |
|
fines, costs, or fees that the defendant has the ability to pay or |
|
the defendant has not completed court-ordered counseling or |
|
treatment. Before conducting the review, the judge shall notify |
|
the attorney representing the state and the defendant. If the judge |
|
determines that the defendant has failed to satisfactorily fulfill |
|
the conditions of community supervision, the judge shall advise the |
|
defendant in writing of the requirements for satisfactorily |
|
fulfilling those conditions. Upon the satisfactory fulfillment of |
|
the conditions of community supervision, and the expiration of the |
|
period of community supervision, the judge, by order duly entered, |
|
shall amend or modify the original sentence imposed, if necessary, |
|
to conform to the community supervision period and shall discharge |
|
the defendant. If the judge discharges the defendant under this |
|
section, the judge may set aside the verdict or permit the defendant |
|
to withdraw the defendant's plea, and shall dismiss the accusation, |
|
complaint, information or indictment against the defendant. The |
|
defendant[, who] shall thereafter be released from all penalties |
|
and disabilities resulting from the offense or crime of which the |
|
defendant has been convicted or to which the defendant has pleaded |
|
guilty, except that, unless the defendant obtains an expunction of |
|
the underlying arrest under Chapter 55: |
|
(1) proof of the conviction or plea of guilty shall be |
|
made known to the judge should the defendant again be convicted of |
|
any criminal offense; and |
|
(2) if the defendant is an applicant for a license or |
|
is a licensee under Chapter 42, Human Resources Code, the Health and |
|
Human Services Commission may consider the fact that the defendant |
|
previously has received community supervision under this article in |
|
issuing, renewing, denying, or revoking a license under that |
|
chapter. |
|
SECTION 3. The change in law made by this Act applies to a |
|
person seeking expunction of records and files 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, 2011. |