By: West S.B. No. 167
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the automatic expunction of arrest records and files
  after an individual receives a pardon or a grant of certain other
  relief with respect to the offense for which the individual was
  arrested.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subsection (a), Article 55.01, 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:
                           (i)  pardoned; or
                           (ii)  otherwise granted relief on the basis
  of actual innocence with respect to that offense; or
               (2)  each of the following conditions exist:
                     (A)  an indictment or information charging the
  person with commission of a felony has not been presented against
  the person 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, the
  indictment or information has been 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 person completed a
  pretrial intervention program authorized under Section 76.011,
  Government Code, 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 it was void;
                     (B)  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.
         SECTION 2.  Article 55.02, Code of Criminal Procedure, is
  amended by adding Section 1a to read as follows:
         Sec. 1a.  (a)  The trial court presiding over a case in which
  a defendant is convicted and subsequently pardoned or otherwise
  subsequently granted relief on the basis of actual innocence of the
  offense of which the defendant was convicted, if the trial court is
  a district court, or a district court in the county in which the
  trial court is located, shall enter an order of expunction for a
  person entitled to expunction under Article 55.01(a)(1)(B) not
  later than the 30th day after the date the court receives notice of
  the pardon or other grant of relief. The person shall provide to
  the district court all of the information required in a petition for
  expunction under Section 2(b).
         (b)  The attorney for the state shall:
               (1)  prepare an expunction order under this section for
  the court's signature; and
               (2)  notify the Texas Department of Criminal Justice if
  the person is in the custody of the department.
         (c)  The court shall include in an expunction order under
  this section a listing of each official, agency, or other entity of
  this state or political subdivision of this state and each private
  entity that there is reason to believe has any record or file that
  is subject to the order.  The court shall also provide in an
  expunction order under this section that:
               (1)  the Texas Department of Criminal Justice shall
  send to the court the documents delivered to the department under
  Section 8(a), Article 42.09; and
               (2)  the Department of Public Safety and the Texas
  Department of Criminal Justice shall delete or redact, as
  appropriate, from their public records all index references to the
  records and files that are subject to the expunction order.
         (d)  The court shall retain all documents sent to the court
  under Subsection (c)(1) until the statute of limitations has run
  for any civil case or proceeding relating to the wrongful
  imprisonment of the person subject to the expunction order.
         SECTION 3.  Subsection (a), Section 2, Article 55.02, Code
  of Criminal Procedure, is amended to read as follows:
         (a)  A person who is entitled to expunction of records and
  files under Article 55.01(a)(2) [55.01(a)] or a person who is
  eligible for expunction of records and files under Article 55.01(b)
  may file an ex parte petition for expunction in a district court for
  the county in which:
               (1)  the petitioner was arrested; or
               (2)  the offense was alleged to have occurred.
         SECTION 4.  Subsection (c), Section 3, Article 55.02, Code
  of Criminal Procedure, is amended 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 named in [designated by the
  person who is the subject of] the order.  The certified copy of the
  order must be sent by secure electronic mail, electronic
  transmission, or facsimile transmission or otherwise by certified
  mail, return receipt requested.  In sending the order to a
  governmental entity named in the order [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.
         SECTION 5.  Subsection (a), Section 5, Article 55.02, Code
  of Criminal Procedure, is amended to read as follows:
         (a)  Except as provided by Subsections (f) and (g), 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 in cases other than those
  described by Section 1a, 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.
         SECTION 6.  This Act applies to the expunction of arrest
  records related to a criminal offense for which a pardon or other
  relief on the basis of actual innocence was granted before, on, or
  after the effective date of this Act.
         SECTION 7.  This Act takes effect September 1, 2011.