By: West S.B. No. 130
 
  (Canales)
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the eligibility of criminal defendants for an order of
  nondisclosure; authorizing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 411.081, Government Code, is amended by
  adding Subsection (d-1) and amending Subsections (d), (e), (f),
  (f-1), and (h) 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), 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 for an order of nondisclosure
  regardless of whether the person has been previously placed on
  deferred adjudication community supervision for another offense.  
  After notice to the state, an opportunity for a hearing, and a
  determination that 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 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.
         (d-1)(1)  This subsection applies only to a person who:
                     (A)  on conviction is placed on community
  supervision under Article 42.12, Code of Criminal Procedure, and
  with respect to whom the conviction is subsequently set aside by the
  court under Section 20(a) of that article; and
                     (B)  is not convicted of an offense for which the
  person would be ineligible for deferred adjudication community
  supervision under Section 5(d), Article 42.12, Code of Criminal
  Procedure.
               (2)  Notwithstanding any other provision of this
  subchapter, if a person to whom this subsection applies satisfies
  the requirements of Subsection (e), the person may petition the
  court that placed the person on community supervision for an order
  of nondisclosure. After notice to the state, an opportunity for a
  hearing, and a determination that the person is entitled to file the
  petition and that 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
  community supervision. 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
  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 community supervision for an order
  of nondisclosure only after:
                     (A)  the conviction is set aside, if the offense
  for which the person was placed on community supervision was a
  misdemeanor; or
                     (B)  the fifth anniversary of the date the
  conviction is set aside, if the offense for which the person was
  placed on community supervision was a felony.
         (e)  A person is entitled to petition the court under
  Subsection (d) or (d-1) only if during the period of the community
  supervision, including 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 by Subsection (d-1)(2)(A) or (B), 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) or (d-1) if the
  person was placed on community supervision, including [the]
  deferred adjudication community supervision, for, or has been
  previously convicted of or placed on any other deferred
  adjudication for:
               (1)  an offense requiring registration as a sex
  offender under Chapter 62, Code of Criminal Procedure;
               (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, 25.072, or 42.072, Penal Code; or
               (4)  any other offense involving family violence, as
  defined by Section 71.004, Family Code.
         (f)  For purposes of Subsections [Subsection] (d) and (e), a
  person is considered to have been placed on deferred adjudication
  community supervision if, regardless of the statutory
  authorization:
               (1)  the person entered a plea of guilty or nolo
  contendere;
               (2)  the judge deferred further proceedings without
  entering an adjudication of guilt and placed the person under the
  supervision of the court or an officer under the supervision of the
  court; and
               (3)  at the end of the period of supervision, the judge
  dismissed the proceedings and discharged the person.
         (f-1)  A person who petitions the court for an order of
  nondisclosure under Subsection (d) or (d-1) may file the petition
  in person, electronically, or by mail. The petition must be
  accompanied by 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 Office of Court Administration of the Texas
  Judicial System shall prescribe a form for the filing of a petition
  electronically or by mail. The form must provide for the petition
  to be accompanied by the required fees and any other supporting
  material determined necessary by the office of court
  administration, including evidence that the person is entitled to
  file the petition. The office of court administration shall make
  available on its Internet website the electronic application and
  printable application form. Each county or district clerk's office
  that maintains an Internet website shall include on that website a
  link to the electronic application and printable application form
  available on the office of court administration's Internet website.
  On receipt of a petition under this subsection, the court shall
  provide notice to the state and an opportunity for 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 hold a
  hearing before determining whether to issue an order of
  nondisclosure, except that a hearing is not required if:
               (1)  the state does not request a hearing on the issue
  before the 45th day after the date on which the state receives
  notice under this subsection; and
               (2)  the court determines that:
                     (A)  the defendant is entitled to file the
  petition; and
                     (B)  the order is in the best interest of justice.
         (h)  The clerk of a court that collects a fee paid under
  Subsection (f-1) [(d)] shall remit the fee to the comptroller not
  later than the last day of the month following the end of the
  calendar quarter in which the fee is collected, and the comptroller
  shall deposit the fee in the general revenue fund.  The Department
  of Public Safety shall submit a report to the legislature not later
  than December 1 of each even-numbered year that includes
  information on:
               (1)  the number of petitions for nondisclosure and
  orders of nondisclosure received by the department in each of the
  previous two years;
               (2)  the actions taken by the department with respect
  to the petitions and orders received;
               (3)  the costs incurred by the department in taking
  those actions; and
               (4)  the number of persons who are the subject of an
  order of nondisclosure and who became the subject of criminal
  charges for an offense committed after the order was issued.
         SECTION 2.  Subsection (i), Section 411.081, Government
  Code, as amended by Chapters 42 (S.B. 966), 266 (H.B. 729), and 583
  (S.B. 869), Acts of the 83rd Legislature, Regular Session, 2013, is
  reenacted and amended to read as follows:
         (i)  A criminal justice agency may disclose criminal history
  record information that is the subject of an order of nondisclosure
  under Subsection (d) or (d-1) to the following noncriminal justice
  agencies or entities only:
               (1)  the State Board for Educator Certification;
               (2)  a school district, charter school, private school,
  regional education service center, commercial transportation
  company, or education shared service arrangement;
               (3)  the Texas Medical Board;
               (4)  the Texas School for the Blind and Visually
  Impaired;
               (5)  the Board of Law Examiners;
               (6)  the State Bar of Texas;
               (7)  a district court regarding a petition for name
  change under Subchapter B, Chapter 45, Family Code;
               (8)  the Texas School for the Deaf;
               (9)  the Department of Family and Protective Services;
               (10)  the Texas Juvenile Justice Department;
               (11)  the Department of Assistive and Rehabilitative
  Services;
               (12)  the Department of State Health Services, a local
  mental health service, a local mental retardation authority, or a
  community center providing services to persons with mental illness
  or retardation;
               (13)  the Texas Private Security Board;
               (14)  a municipal or volunteer fire department;
               (15)  the Texas Board of Nursing;
               (16)  a safe house providing shelter to children in
  harmful situations;
               (17)  a public or nonprofit hospital or hospital
  district, or a facility as defined by Section 250.001, Health and
  Safety Code;
               (18)  the securities commissioner, the banking
  commissioner, the savings and mortgage lending commissioner, the
  consumer credit commissioner, or the credit union commissioner;
               (19)  the Texas State Board of Public Accountancy;
               (20)  the Texas Department of Licensing and Regulation;
               (21)  the Health and Human Services Commission;
               (22)  the Department of Aging and Disability Services;
               (23)  the Texas Education Agency;
               (24)  the Judicial Branch Certification Commission;
               (25)  a county clerk's office in relation to a
  proceeding for the appointment of a guardian under Title 3, Estates
  Code [Chapter XIII, Texas Probate Code];
               (26)  the Department of Information Resources but only
  regarding an employee, applicant for employment, contractor,
  subcontractor, intern, or volunteer who provides network security
  services under Chapter 2059 to:
                     (A)  the Department of Information Resources; or
                     (B)  a contractor or subcontractor of the
  Department of Information Resources;
               (27)  the Texas Department of Insurance;
               (28)  the Teacher Retirement System of Texas; and
               (29) [(30)]  the Texas State Board of Pharmacy.
         SECTION 3.  Subsection (a), Section 411.0851, Government
  Code, is amended to read as follows:
         (a)  A private entity that compiles and disseminates for
  compensation criminal history record information shall destroy and
  may not disseminate any information in the possession of the entity
  with respect to which the entity has received notice that:
               (1)  an order of expunction has been issued under
  Article 55.02, Code of Criminal Procedure; or
               (2)  an order of nondisclosure has been issued under
  Section 411.081(d) or (d-1).
         SECTION 4.  Section 552.142, Government Code, is amended to
  read as follows:
         Sec. 552.142.  EXCEPTION:  CONFIDENTIALITY OF RECORDS OF
  CERTAIN CRIMINAL HISTORY INFORMATION [DEFERRED ADJUDICATIONS].
  (a)  Information is excepted from the requirements of Section
  552.021 if an order of nondisclosure with respect to the
  information has been issued under Section 411.081(d) or (d-1).
         (b)  A person who is the subject of information that is
  excepted from the requirements of Section 552.021 under this
  section may deny the occurrence of the criminal proceeding [arrest
  and prosecution] to which the information relates and the exception
  of the information under this section, unless the information is
  being used against the person in a subsequent criminal proceeding.
         SECTION 5.  Subsection (a), Section 552.1425, Government
  Code, is amended to read as follows:
         (a)  A private entity that compiles and disseminates for
  compensation criminal history record information may not compile or
  disseminate information with respect to which the entity has
  received notice that:
               (1)  an order of expunction has been issued under
  Article 55.02, Code of Criminal Procedure; or
               (2)  an order of nondisclosure has been issued under
  Section 411.081(d) or (d-1).
         SECTION 6.  Subsection (e), Section 53.021, Occupations
  Code, is amended to read as follows:
         (e)  Subsection (c) does not apply if the person is an
  applicant for or the holder of a license that authorizes the person
  to provide:
               (1)  law enforcement or public health, education, or
  safety services; or
               (2)  financial services in an industry regulated by a
  person listed in Section 411.081(i)(18) [411.081(i)(19)],
  Government Code.
         SECTION 7.  The change in law made by Subsection (d-1),
  Section 411.081, Government Code, as added by this Act, applies to a
  person whose conviction is set aside under Subsection (a), Section
  20, Article 42.12, Code of Criminal Procedure, on or after the
  effective date of this Act, regardless of when the person committed
  the offense for which the person was convicted.
         SECTION 8.  This Act takes effect September 1, 2015.