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A BILL TO BE ENTITLED
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AN ACT
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relating to the expunction of records and files relating to an |
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offense for which a person is arrested. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 55.01, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been |
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placed under a custodial or noncustodial arrest for commission of |
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either a felony or misdemeanor is entitled to have all records and |
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files relating to the offense for which the person was arrested [the
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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); or |
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(B) convicted and subsequently: |
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(i) pardoned for a reason other than that |
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described by Subparagraph (ii); or |
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(ii) pardoned or otherwise granted relief |
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on the basis of actual innocence with respect to that offense, if |
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the applicable pardon or court order clearly indicates on its face |
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that the pardon or order was granted or rendered on the basis of the |
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person's actual innocence; or |
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(2) the person has been released and the charge, if |
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any, for the offense for which the expunction is sought has been |
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dismissed or has not resulted in a final conviction for that |
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offense, the charge [and] is no longer pending, and there was no |
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court-ordered community supervision under Article 42.12 for that |
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[the] offense[,] unless the offense is a Class C misdemeanor, |
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provided that: |
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(A) regardless of whether any statute of |
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limitations exists for the offense and whether any limitations |
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period for the offense has expired, an indictment or information |
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charging the person with the commission of the [a misdemeanor] |
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offense [based on the person's arrest or charging the person with
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the commission of any felony offense arising out of the same
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transaction for which the person was arrested]: |
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(i) has not been presented against the |
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person at any time following the person's arrest, and: |
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(a) at least 30 [180] days have |
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elapsed from the date of arrest if the offense [arrest] for which |
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the expunction was sought was [for an offense] punishable as a Class |
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C misdemeanor and if there was no felony charge arising out of the |
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same transaction for which the person was arrested; |
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(b) at least 90 days have [one year
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has] elapsed from the date of arrest if the offense [arrest] for |
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which the expunction was sought was [for an offense] punishable as a |
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Class B or A misdemeanor and if there was no felony charge arising |
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out of the same transaction for which the person was arrested; |
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(c) at least three years have elapsed |
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from the date of arrest if the offense [arrest] for which the |
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expunction was sought was [for an offense] punishable as a felony or |
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if there was a felony charge arising out of the same transaction for |
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which the person was arrested; or |
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(d) the attorney representing the |
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state certifies that the applicable [arrest] records and files are |
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not needed for use in any criminal investigation or prosecution, |
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including an investigation or prosecution of another person; or |
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(ii) if presented at any time following the |
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person's arrest, was dismissed or quashed, and the court finds that |
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the indictment or information was dismissed or quashed because the |
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person completed a pretrial intervention program authorized under |
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Section 76.011, Government Code, because the presentment had been |
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made because of mistake, false information, or other similar reason |
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indicating absence of probable cause at the time of the dismissal to |
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believe the person committed the offense, or because the indictment |
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or information was void; or |
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(B) prosecution of the person for the offense for |
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which the person was arrested is no longer possible because the |
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limitations period has expired. |
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(a-1) Notwithstanding any other provision of this article, |
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a person may not expunge offense records and files if the applicable |
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[relating to an] arrest occurred [that occurs] pursuant to a |
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warrant issued under Section 21, Article 42.12. |
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(a-2) Notwithstanding any other provision of this article, |
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a person who intentionally or knowingly absconds from the |
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jurisdiction after being released under Chapter 17 following an |
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arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or |
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(c) or Subsection (a)(2)(B) for an expunction of the records and |
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files relating to that arrest and to the proceedings conducted |
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under Chapter 17. |
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(b) Except as provided by Subsection (c), a district court |
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may expunge all records and files relating to the offense with |
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respect to [arrest of] a person who has been arrested for commission |
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of a felony or misdemeanor under the procedure established under |
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Article 55.02 if: |
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(1) the person is: |
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(A) tried for the offense [for which the person
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was arrested]; |
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(B) convicted of the offense; and |
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(C) acquitted by the court of criminal appeals |
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or, if the period for granting a petition for discretionary review |
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has expired, by a court of appeals; or |
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(2) an office of the attorney representing the state |
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authorized by law to prosecute the offense for which the person was |
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arrested recommends the expunction to the appropriate district |
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court before the person is tried for the offense, regardless of |
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whether an indictment or information has been presented against the |
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person in relation to the offense. |
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(c) A court may not order the expunction of records and |
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files relating to [an arrest for] an offense for which a person is |
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subsequently acquitted, whether by the trial court, a court of |
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appeals, or the court of criminal appeals, if the offense for which |
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the person was acquitted arose out of a criminal episode, as defined |
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by Section 3.01, Penal Code, and the person was convicted of or |
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remains subject to prosecution for at least one other offense |
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occurring during the criminal episode. |
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(d) A person is entitled to have expunged any information |
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that identifies the person, including the person's name, address, |
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date of birth, driver's license number, and social security number, |
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contained in records and files relating to another person's [the] |
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arrest or to any ensuing criminal proceedings based on that arrest |
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[of another person expunged] if: |
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(1) the information identifying the person asserting |
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the entitlement to expunction was falsely given by the person |
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arrested as the arrested person's identifying information without |
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the consent of the person asserting the entitlement; and |
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(2) the only reason for the information identifying |
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the person asserting the entitlement being contained in the |
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[arrest] offense records and files of the person arrested is that |
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the information was falsely given by the person arrested as the |
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arrested person's identifying information. |
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SECTION 2. Section 2a(b), Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b) The application must be verified, include authenticated |
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fingerprint records of the applicant, and include the following or |
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an explanation for why one or more of the following is not included: |
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(1) the applicant's full name, sex, race, date of |
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birth, driver's license number, social security number, and address |
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at the time the person who falsely identified himself or herself as |
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the applicant was arrested; |
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(2) the following information regarding the arrest: |
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(A) the date of arrest; |
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(B) the offense charged against the person |
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arrested; |
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(C) the name of the county or municipality in |
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which the arrest occurred; and |
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(D) the name of the arresting agency; and |
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(3) a statement that: |
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(A) the applicant is not the person arrested and |
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for whom the applicable [arrest] records and files were created; |
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and |
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(B) the applicant did not give the person |
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arrested consent to falsely identify himself or herself as the |
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applicant. |
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SECTION 3. Section 3(a), Article 55.02, Code of Criminal |
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Procedure, is 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 offense [arrest] to a central federal depository to |
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request the depository to return all records and files subject to |
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the order of expunction. The person who is the subject of the |
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expunction order or an agency protesting the expunction may appeal |
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the court's decision in the same manner as in other civil cases. |
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SECTION 4. Section 4(a-1), Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a-1) The court shall provide in its expunction order that |
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the applicable law enforcement agency and prosecuting attorney may |
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retain the offense [arrest] records and files of any person who |
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becomes entitled to an expunction of those records and files based |
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on the expiration of a period described by Article |
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55.01(a)(2)(A)(i)(a), (b), or (c), but without the certification of |
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the prosecuting attorney as described by Article |
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55.01(a)(2)(A)(i)(d). |
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SECTION 5. Article 55.03, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 55.03. EFFECT OF EXPUNCTION. When the order of |
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expunction is final: |
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(1) the release, maintenance, dissemination, or use of |
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the expunged records and files for any purpose is prohibited; |
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(2) except as provided in Subdivision (3) [of this
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article], the person arrested may deny: |
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(A) the occurrence of the arrest and any ensuing |
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criminal proceedings based on the arrest; and |
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(B) the existence of the expunction order; and |
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(3) the person arrested or any other person, when |
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questioned under oath in a criminal proceeding about an offense |
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[arrest] for which the records have been expunged, may state only |
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that the matter in question has been expunged. |
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SECTION 6. Section 1, Article 55.04, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 1. A person who, [acquires knowledge of an arrest] |
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while an officer or employee of the state or of any agency or other |
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entity of the state or any political subdivision of the state, |
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acquires knowledge of an arrest or of criminal proceedings based on |
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that arrest and who knows of an order expunging the records and |
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files relating to the applicable offense [that arrest] commits an |
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offense if he knowingly releases, disseminates, or otherwise uses |
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the records or files. |
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SECTION 7. This Act applies to an expunction of records and |
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files relating to any criminal offense that occurred before, on, or |
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after the effective date of this Act. |
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SECTION 8. This Act takes effect September 1, 2015. |