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A BILL TO BE ENTITLED
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AN ACT
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relating to the eligibility of criminal defendants for an order of |
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nondisclosure; authorizing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 411.081, Government Code, is amended by |
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adding Subsection (d-1) and amending Subsections (d), (e), (f), |
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(f-1), and (h) to read as follows: |
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(d) Notwithstanding any other provision of this subchapter, |
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if a person is placed on deferred adjudication community |
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supervision under Section 5, Article 42.12, Code of Criminal |
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Procedure, subsequently receives a discharge and dismissal under |
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Section 5(c), Article 42.12, and satisfies the requirements of |
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Subsection (e), the person may petition the court that placed the |
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defendant on deferred adjudication for an order of nondisclosure |
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under this subsection. Except as provided by Subsection (e), a |
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person may petition the court for an order of nondisclosure |
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regardless of whether the person has been previously placed on |
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deferred adjudication community supervision for another offense. |
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After notice to the state, an opportunity for a hearing, and a |
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determination that the person is entitled to file the petition and |
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issuance of the order is in the best interest of justice, the court |
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shall issue an order prohibiting criminal justice agencies from |
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disclosing to the public criminal history record information |
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related to the offense giving rise to the deferred adjudication. A |
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criminal justice agency may disclose criminal history record |
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information that is the subject of the order only to other criminal |
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justice agencies[,] for criminal justice or regulatory licensing |
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purposes, an agency or entity listed in Subsection (i), or the |
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person who is the subject of the order. A person may petition the |
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court that placed the person on deferred adjudication for an order |
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of nondisclosure only on or after: |
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(1) the discharge and dismissal, if the offense for |
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which the person was placed on deferred adjudication was a |
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misdemeanor other than a misdemeanor described by Subdivision (2); |
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(2) the second anniversary of the discharge and |
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dismissal, if the offense for which the person was placed on |
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deferred adjudication was a misdemeanor under Chapter 20, 21, 22, |
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25, 42, or 46, Penal Code; or |
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(3) the fifth anniversary of the discharge and |
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dismissal, if the offense for which the person was placed on |
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deferred adjudication was a felony. |
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(d-1)(1) This subsection applies only to a person who: |
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(A) on conviction is placed on community |
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supervision under Article 42.12, Code of Criminal Procedure, and |
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with respect to whom the conviction is subsequently set aside by the |
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court under Section 20(a) of that article; and |
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(B) is not convicted of an offense for which the |
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person would be ineligible for deferred adjudication community |
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supervision under Section 5(d), Article 42.12, Code of Criminal |
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Procedure. |
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(2) Notwithstanding any other provision of this |
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subchapter, if a person to whom this subsection applies satisfies |
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the requirements of Subsection (e), the person may petition the |
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court that placed the person on community supervision for an order |
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of nondisclosure. After notice to the state, an opportunity for a |
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hearing, and a determination that the person is entitled to file the |
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petition and that issuance of the order is in the best interest of |
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justice, the court shall issue an order prohibiting criminal |
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justice agencies from disclosing to the public criminal history |
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record information related to the offense giving rise to the |
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community supervision. A criminal justice agency may disclose |
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criminal history record information that is the subject of the |
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order only to other criminal justice agencies for criminal justice |
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purposes, an agency or entity listed in Subsection (i), or the |
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person who is the subject of the order. A person may petition the |
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court that placed the person on community supervision for an order |
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of nondisclosure only after: |
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(A) the conviction is set aside, if the offense |
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for which the person was placed on community supervision was a |
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misdemeanor; or |
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(B) the fifth anniversary of the date the |
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conviction is set aside, if the offense for which the person was |
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placed on community supervision was a felony. |
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(e) A person is entitled to petition the court under |
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Subsection (d) or (d-1) only if during the period of the community |
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supervision, including deferred adjudication community |
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supervision, for which the order of nondisclosure is requested and |
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during the applicable period described by Subsection (d)(1), (2), |
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or (3) or by Subsection (d-1)(2)(A) or (B), as appropriate, the |
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person is not convicted of or placed on deferred adjudication |
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community supervision under Section 5, Article 42.12, Code of |
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Criminal Procedure, for any offense other than an offense under the |
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Transportation Code punishable by fine only. A person is not |
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entitled to petition the court under Subsection (d) or (d-1) if the |
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person was placed on community supervision, including [the] |
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deferred adjudication community supervision, for, or has been |
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previously convicted of or placed on any other deferred |
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adjudication for: |
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(1) an offense requiring registration as a sex |
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offender under Chapter 62, Code of Criminal Procedure; |
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(2) an offense under Section 20.04, Penal Code, |
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regardless of whether the offense is a reportable conviction or |
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adjudication for purposes of Chapter 62, Code of Criminal |
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Procedure; |
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(3) an offense under Section 19.02, 19.03, 22.04, |
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22.041, 25.07, 25.072, or 42.072, Penal Code; or |
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(4) any other offense involving family violence, as |
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defined by Section 71.004, Family Code. |
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(f) For purposes of Subsections [Subsection] (d) and (e), a |
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person is considered to have been placed on deferred adjudication |
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community supervision if, regardless of the statutory |
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authorization: |
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(1) the person entered a plea of guilty or nolo |
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contendere; |
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(2) the judge deferred further proceedings without |
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entering an adjudication of guilt and placed the person under the |
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supervision of the court or an officer under the supervision of the |
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court; and |
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(3) at the end of the period of supervision, the judge |
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dismissed the proceedings and discharged the person. |
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(f-1) A person who petitions the court for an order of |
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nondisclosure under Subsection (d) or (d-1) may file the petition |
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in person, electronically, or by mail. The petition must be |
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accompanied by payment of a $28 fee to the clerk of the court in |
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addition to any other fee that generally applies to the filing of a |
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civil petition. The Office of Court Administration of the Texas |
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Judicial System shall prescribe a form for the filing of a petition |
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electronically or by mail. The form must provide for the petition |
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to be accompanied by the required fees and any other supporting |
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material determined necessary by the office of court |
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administration, including evidence that the person is entitled to |
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file the petition. The office of court administration shall make |
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available on its Internet website the electronic application and |
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printable application form. Each county or district clerk's office |
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that maintains an Internet website shall include on that website a |
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link to the electronic application and printable application form |
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available on the office of court administration's Internet website. |
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On receipt of a petition under this subsection, the court shall |
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provide notice to the state and an opportunity for a hearing on |
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whether the person is entitled to file the petition and issuance of |
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the order is in the best interest of justice. The court shall hold a |
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hearing before determining whether to issue an order of |
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nondisclosure, except that a hearing is not required if: |
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(1) the state does not request a hearing on the issue |
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before the 45th day after the date on which the state receives |
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notice under this subsection; and |
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(2) the court determines that: |
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(A) the defendant is entitled to file the |
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petition; and |
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(B) the order is in the best interest of justice. |
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(h) The clerk of a court that collects a fee paid under |
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Subsection (f-1) [(d)] shall remit the fee to the comptroller not |
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later than the last day of the month following the end of the |
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calendar quarter in which the fee is collected, and the comptroller |
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shall deposit the fee in the general revenue fund. The Department |
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of Public Safety shall submit a report to the legislature not later |
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than December 1 of each even-numbered year that includes |
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information on: |
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(1) the number of petitions for nondisclosure and |
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orders of nondisclosure received by the department in each of the |
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previous two years; |
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(2) the actions taken by the department with respect |
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to the petitions and orders received; |
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(3) the costs incurred by the department in taking |
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those actions; and |
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(4) the number of persons who are the subject of an |
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order of nondisclosure and who became the subject of criminal |
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charges for an offense committed after the order was issued. |
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SECTION 2. Subsection (i), Section 411.081, Government |
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Code, as amended by Chapters 42 (S.B. 966), 266 (H.B. 729), and 583 |
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(S.B. 869), Acts of the 83rd Legislature, Regular Session, 2013, is |
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reenacted and amended to read as follows: |
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(i) A criminal justice agency may disclose criminal history |
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record information that is the subject of an order of nondisclosure |
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under Subsection (d) or (d-1) to the following noncriminal justice |
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agencies or entities only: |
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(1) the State Board for Educator Certification; |
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(2) a school district, charter school, private school, |
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regional education service center, commercial transportation |
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company, or education shared service arrangement; |
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(3) the Texas Medical Board; |
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(4) the Texas School for the Blind and Visually |
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Impaired; |
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(5) the Board of Law Examiners; |
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(6) the State Bar of Texas; |
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(7) a district court regarding a petition for name |
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change under Subchapter B, Chapter 45, Family Code; |
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(8) the Texas School for the Deaf; |
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(9) the Department of Family and Protective Services; |
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(10) the Texas Juvenile Justice Department; |
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(11) the Department of Assistive and Rehabilitative |
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Services; |
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(12) the Department of State Health Services, a local |
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mental health service, a local mental retardation authority, or a |
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community center providing services to persons with mental illness |
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or retardation; |
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(13) the Texas Private Security Board; |
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(14) a municipal or volunteer fire department; |
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(15) the Texas Board of Nursing; |
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(16) a safe house providing shelter to children in |
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harmful situations; |
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(17) a public or nonprofit hospital or hospital |
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district, or a facility as defined by Section 250.001, Health and |
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Safety Code; |
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(18) the securities commissioner, the banking |
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commissioner, the savings and mortgage lending commissioner, the |
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consumer credit commissioner, or the credit union commissioner; |
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(19) the Texas State Board of Public Accountancy; |
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(20) the Texas Department of Licensing and Regulation; |
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(21) the Health and Human Services Commission; |
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(22) the Department of Aging and Disability Services; |
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(23) the Texas Education Agency; |
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(24) the Judicial Branch Certification Commission; |
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(25) a county clerk's office in relation to a |
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proceeding for the appointment of a guardian under Title 3, Estates |
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Code [Chapter XIII, Texas Probate Code]; |
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(26) the Department of Information Resources but only |
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regarding an employee, applicant for employment, contractor, |
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subcontractor, intern, or volunteer who provides network security |
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services under Chapter 2059 to: |
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(A) the Department of Information Resources; or |
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(B) a contractor or subcontractor of the |
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Department of Information Resources; |
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(27) the Texas Department of Insurance; |
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(28) the Teacher Retirement System of Texas; and |
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(29) [(30)] the Texas State Board of Pharmacy. |
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SECTION 3. Subsection (a), Section 411.0851, Government |
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Code, is amended to read as follows: |
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(a) A private entity that compiles and disseminates for |
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compensation criminal history record information shall destroy and |
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may not disseminate any information in the possession of the entity |
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with respect to which the entity has received notice that: |
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(1) an order of expunction has been issued under |
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Article 55.02, Code of Criminal Procedure; or |
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(2) an order of nondisclosure has been issued under |
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Section 411.081(d) or (d-1). |
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SECTION 4. Section 552.142, Government Code, is amended to |
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read as follows: |
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Sec. 552.142. EXCEPTION: CONFIDENTIALITY OF RECORDS OF |
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CERTAIN CRIMINAL HISTORY INFORMATION [DEFERRED ADJUDICATIONS]. |
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(a) Information is excepted from the requirements of Section |
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552.021 if an order of nondisclosure with respect to the |
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information has been issued under Section 411.081(d) or (d-1). |
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(b) A person who is the subject of information that is |
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excepted from the requirements of Section 552.021 under this |
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section may deny the occurrence of the criminal proceeding [arrest
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and prosecution] to which the information relates and the exception |
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of the information under this section, unless the information is |
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being used against the person in a subsequent criminal proceeding. |
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SECTION 5. Subsection (a), Section 552.1425, Government |
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Code, is amended to read as follows: |
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(a) A private entity that compiles and disseminates for |
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compensation criminal history record information may not compile or |
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disseminate information with respect to which the entity has |
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received notice that: |
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(1) an order of expunction has been issued under |
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Article 55.02, Code of Criminal Procedure; or |
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(2) an order of nondisclosure has been issued under |
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Section 411.081(d) or (d-1). |
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SECTION 6. Subsection (e), Section 53.021, Occupations |
|
Code, is amended to read as follows: |
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(e) Subsection (c) does not apply if the person is an |
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applicant for or the holder of a license that authorizes the person |
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to provide: |
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(1) law enforcement or public health, education, or |
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safety services; or |
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(2) financial services in an industry regulated by a |
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person listed in Section 411.081(i)(18) [411.081(i)(19)], |
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Government Code. |
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SECTION 7. The change in law made by Subsection (d-1), |
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Section 411.081, Government Code, as added by this Act, applies to a |
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person whose conviction is set aside under Subsection (a), Section |
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20, Article 42.12, Code of Criminal Procedure, on or after the |
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effective date of this Act, regardless of when the person committed |
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the offense for which the person was convicted. |
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SECTION 8. This Act takes effect September 1, 2015. |