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A BILL TO BE ENTITLED
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AN ACT
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relating to accessing criminal history record information and other |
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records of involvement in the criminal justice system; authorizing |
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fees; authorizing a civil penalty; creating criminal offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. (a) This Act may be cited as the Modern |
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Electronic Records in Texas Act or the MERIT Act. |
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(b) The legislature finds that: |
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(1) Texas has an extensive program for sharing |
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information concerning criminal activity among thousands of |
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agencies; |
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(2) some criminal history record information is |
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confidential and unavailable to the public; |
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(3) public access to records that identify a person's |
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involvement in criminal activity is vital to public safety, but |
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some privacy is also vital to public safety; |
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(4) criminal records effectively punish people by |
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limiting opportunities for employment, housing, education, credit, |
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and other essential items; |
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(5) recidivism is more likely, and rehabilitation less |
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likely, when criminal history record information is published; and |
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(6) the state, and not private data miners, must |
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determine what punishment or publication is appropriate. |
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Consequently this chapter states the legislature's judgment as to |
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what degree of privacy will best promote public safety in the |
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digital age. |
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(c) This Act is intended to: |
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(1) define what criminal history record information |
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may be accessed by agencies and the public; |
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(2) remove financial incentive for data miners to |
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publish nonconviction records on the Internet; and |
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(3) establish a prompt and efficient means of |
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correcting, sealing, and expunging certain criminal history record |
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information. |
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SECTION 2. The heading to Chapter 60, Code of Criminal |
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Procedure, is amended to read as follows: |
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CHAPTER 60. CRIMINAL HISTORY RECORD COLLECTION [SYSTEM] |
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SECTION 3. Title 1, Code of Criminal Procedure, is amended |
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by adding Chapter 60A to read as follows: |
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CHAPTER 60A. CRIMINAL HISTORY RECORD ACCESS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Art. 60A.01. DEFINITIONS. (a) In this chapter: |
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(1) "Criminal history record information" means |
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information collected about a person by a criminal justice agency |
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that consists of identifiable descriptions and notations of |
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arrests, citations, detentions, indictments, informations, and |
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other formal criminal charges and their dispositions. The term |
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does not include: |
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(A) identification information, including |
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fingerprint records, to the extent that the identification |
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information does not indicate involvement of the person in the |
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criminal justice system; or |
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(B) driving record information maintained by the |
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department under Subchapter C, Chapter 521, Transportation Code. |
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(2) "Data miner" means any private person who collects |
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government information for the purpose of reselling that |
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information to others. |
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(3) "Deferred adjudication" means: |
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(A) deferred adjudication community supervision |
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under Section 5, Article 42.12; |
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(B) placement on probation for a deferred |
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disposition under Article 45.051; or |
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(C) any other disposition in which: |
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(i) the defendant enters a plea of guilty or |
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nolo contendere; |
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(ii) the judge places 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; |
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(iii) at the end of the period of |
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supervision or probation the judge does not enter a judgment of |
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conviction or vacates a judgment of conviction previously entered; |
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and |
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(iv) at the end of the period of supervision |
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or probation the judge dismisses the proceedings and discharges the |
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defendant. |
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(4) "Department" means the Department of Public |
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Safety. |
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(5) "Expunge" and "expunction" mean the physical |
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destruction or alteration of records so that no possibility exists |
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that any person could use the records to identify a particular |
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person as having been accused of involvement in criminal activity. |
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(6) "Nonconviction records" means criminal history |
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record information that does not include a disposition by |
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conviction or deferred adjudication, including records of arrest, |
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citation, detention, charges, and court proceedings where no |
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disposition by conviction or deferred adjudication occurs. |
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(7) "Office of court administration" means the Office |
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of Court Administration of the Texas Judicial System. |
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(8) "Record" means any writing or photograph, |
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including: |
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(A) any letters, words, or numbers or their |
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equivalent, set down by handwriting, typewriting, printing, |
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photostating, photographing, magnetic impulse, mechanical or |
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electronic recording, or other form of data compilation; and |
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(B) still photographs, x-ray films, videotapes, |
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and motion pictures set down by any method listed in Paragraph (A). |
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(9) "Seal" means a procedure by which state and local |
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agencies may retain criminal history record information but are |
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required to withhold that information from public access. |
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(10) "Sensitive service agency" means a governmental |
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or nongovernmental agency, other than a criminal justice agency, |
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that has a compelling reason to access sealed records. |
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(b) A term that is used in this chapter but is not defined by |
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Subsection (a) has the meaning assigned by Chapter 60. |
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Art. 60A.02. WAIVER OF RIGHTS CONCERNING CRIMINAL RECORDS. |
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An explicit or implicit waiver of any right to seal, expunge, or |
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correct criminal history records under this chapter is not |
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effective unless: |
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(1) the waiver is written in the primary language of |
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the waiving party; |
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(2) the waiver contains a warning that criminal |
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history record information that cannot be sealed, expunged, or |
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corrected may have serious consequences for the waiving party's |
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future employment, education, housing, and credit; |
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(3) the waiver contains a recommendation that the |
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waiving party consult an attorney before agreeing to the waiver, |
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and describes the waiving party's options for consulting an |
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attorney, including the option to seek appointed counsel under |
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Article 1.051 or 26.04; and |
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(4) the content of the written waiver, including the |
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dangers and disadvantages of waiving rights under this chapter, is |
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discussed orally with the waiving party by a qualified person who |
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attests to the discussion in the waiver. |
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SUBCHAPTER B. DEPARTMENT OF PUBLIC SAFETY: DISSEMINATION |
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OF AND ACCESS TO RECORDS |
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Art. 60A.11. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION. |
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(a) A criminal justice agency may access any criminal history |
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record information necessary to: |
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(1) conduct any activity included in the |
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administration of criminal justice; or |
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(2) screen applicants for employment with a criminal |
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justice agency. |
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(b) A sensitive service agency may access all conviction and |
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deferred adjudication records, except for records of Class C |
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misdemeanors, maintained by the department, whether sealed or |
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unsealed, for the purpose for which access was granted to the |
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agency. |
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(c) Any person may access for any purpose: |
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(1) all records of convictions, other than for a Class |
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C misdemeanor; |
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(2) all records of deferred adjudications, other than |
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deferred dispositions granted for a Class C misdemeanor, that are |
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not sealed; |
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(3) all nonconviction records, including records of |
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arrests, citations, detentions, charges, and court proceedings not |
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ending in conviction, that: |
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(A) a criminal justice agency chooses to make |
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available under this chapter and Section 552.108, Government Code; |
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or |
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(B) a judicial agency chooses to make available |
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under the applicable court rules and this chapter. |
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(d) Any individual, or that individual's attorney or other |
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legal representative acting in a fiduciary capacity, may access any |
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criminal history record information identifying that individual, |
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for any purpose. |
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Art. 60A.12. ACCESS FEES. (a) The department is the only |
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agency authorized to charge a fee for access to criminal history |
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record information. A state or local agency other than the |
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department may not charge a fee for providing access to criminal |
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history record information. |
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(b) The department may not charge a fee to provide criminal |
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history record information in response to an inquiry from: |
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(1) a criminal justice agency; |
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(2) the office of capital writs; or |
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(3) an appointed defense counsel who affirms that the |
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information is needed to represent an indigent defendant. |
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(c) The department may charge a fee of: |
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(1) $10 for each public inquiry for criminal history |
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record information on a person that is processed only on the basis |
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of the person's name, unless the inquiry is submitted |
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electronically, in which event the fee is $1; |
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(2) $15 for each public inquiry for criminal history |
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record information on a person that is processed on the basis of a |
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fingerprint comparison search; and |
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(3) an amount sufficient to recover all costs directly |
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or indirectly incurred by the department in providing accurate, |
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relevant, and updated criminal history record information in |
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response to any inquiry for criminal history record information |
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from a data miner. |
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Art. 60A.13. NATURE OF RECORDS. The department at all times |
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retains ownership of data maintained in the department's records, |
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including records containing criminal history record information, |
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and may only license the use of the department's data for a period |
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of not more than 90 days, unless the department specifies another |
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period by rule. |
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Art. 60A.14. INTERNET WEBSITE. The department shall |
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consult with the office of court administration and the attorney |
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general as the department considers necessary to create and |
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maintain an Internet website that: |
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(1) uses electronic means to facilitate access to all |
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criminal history record information described in this chapter; |
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(2) provides access to this chapter and all rules |
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adopted under this chapter; |
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(3) effectively communicates how a person may access, |
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seal, and expunge records under this chapter without legal |
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representation; |
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(4) notifies the person who accesses criminal history |
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record information of applicable criminal penalties; and |
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(5) contains the following warning: |
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"CRIMINAL HISTORY RECORDS CHANGE OVER TIME. Records often |
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change due to further investigation of facts, reporting errors, and |
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decisions made by prosecutors and judges. Check the date on each |
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record obtained from this website. The older the date, the less |
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trustworthy the record." |
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Art. 60A.15. RULES. (a) The department shall adopt rules |
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to administer this chapter. |
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(b) Rules adopted under this article must provide for: |
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(1) a uniform method of requesting criminal history |
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record information from the department; |
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(2) the methods and formats for dissemination of |
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criminal history record information; |
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(3) security measures and policies that are designed |
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to guard against unauthorized release or dissemination of criminal |
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history record information that is maintained by the department; |
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(4) a uniform method of requesting that the department |
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seal the department's records and notifying other agencies to seal |
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records possessed by the agency under Subchapter G; and |
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(5) the transmission of information among agencies by |
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electronic means whenever possible and in accordance with record |
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transmission procedures adopted by the office of court |
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administration. |
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(c) The department may adopt rules requiring a person |
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requesting criminal history record information to submit any |
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specific information considered necessary by the department. |
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SUBCHAPTER C. ACCESS GRANTED BY DEPARTMENT TO CERTAIN |
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SENSITIVE SERVICE AGENCIES |
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Art. 60A.21. ACCESS PROVIDED TO SENSITIVE SERVICE AGENCIES. |
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(a) Sensitive service agencies may access deferred adjudication |
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records from the department even if those records are subject to an |
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order of sealing under Subchapter G. |
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(b) The following are considered to be sensitive service |
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agencies under this chapter: |
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(1) the State Board for Educator Certification; |
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(2) a school district, charter school, public school, |
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private school, or regional education service center; |
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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 Texas 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 Department of Juvenile Justice; |
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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 intellectual and developmental |
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disability authority, or a community center providing services to |
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persons with mental illness or intellectual disabilities; |
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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 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, and 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) every 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; |
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(26) the Department of Information Resources; |
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(27) the Court Reporters Certification Advisory |
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Board; |
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(28) the Texas Department of Insurance; |
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(29) the Teacher Retirement System of Texas; |
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(30) the Texas State Board of Pharmacy; and |
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(31) contractors and subcontractors only for purposes |
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of compliance with an explicit term addressing criminal history |
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record information that is stated in a contract with a special |
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services agency. |
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(c) The department by rule may designate an additional |
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agency as a sensitive services agency if: |
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(1) the agency primarily serves vulnerable |
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populations and has a demonstrated need for access to the |
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information; and |
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(2) the senate and house committees with jurisdiction |
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over criminal justice issues consent to the addition. |
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Art. 60A.22. WRITTEN PROCEDURES. A sensitive service |
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agency may not access sealed records unless the agency adopts |
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written procedures specifying how criminal history record |
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information may disqualify an applicant from employment, |
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licensure, housing, or educational benefit. Each procedure must |
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state the manner in which an agency official will determine on a |
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case-by-case basis whether the applicant is qualified based on |
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factors that include: |
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(1) the specific responsibilities that the applicant |
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seeks to undertake; |
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(2) the nature and seriousness of each offense |
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committed by the applicant; |
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(3) the period that elapsed between each offense and |
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the agency decision on the application; and |
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(4) the efforts made by the applicant toward |
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rehabilitation. |
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SUBCHAPTER D. PRIVATE ENTITIES |
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Art. 60A.31. ACCESS PROVIDED BY DATA MINERS; PROHIBITED |
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ACTS. (a) A person may directly or indirectly purchase criminal |
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history record information from the department and resell that |
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information subject to any license granted by the department. |
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(b) A person may not directly or indirectly cause the |
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purchase or sale of criminal history record information that is not |
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subject to a department license of use. |
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Art. 60A.32. DUTIES OF DATA MINERS. (a) Each person who |
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purchases from the department criminal history record information |
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for resale to others shall destroy all records of the information, |
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including all paper copies and all copies that may be distributed by |
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electronic means, within the person's possession or control with |
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respect to which the person has received notice that: |
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(1) the department or a court issued an order of |
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sealing covering the information under Subchapter G; |
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(2) a court issued an order of expunction covering the |
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information under Subchapter H; or |
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(3) a period of at least 90 days, or another period |
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prescribed by department rule, has passed since the department |
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provided the information. |
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(b) Each person who purchases from the department criminal |
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history record information for resale to others must: |
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(1) maintain an e-mail account to receive electronic |
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service of orders issued in response to petitions for expunction or |
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nondisclosure under this chapter; |
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(2) provide the e-mail address described by |
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Subdivision (1) to the department and to the district clerk in every |
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county; |
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(3) monitor the e-mail account described by |
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Subdivision (1) at least once each week; and |
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(4) comply with each order of expunction and with each |
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order of sealing issued under this chapter. |
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SUBCHAPTER E. LOCAL AGENCIES |
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Art. 60A.41. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION |
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PROVIDED BY OTHER GOVERNMENT AGENCIES. (a) A judicial or executive |
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agency, other than the department, may permit public access to |
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criminal history record information that the agency creates and |
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maintains in the regular course of performing the agency's official |
|
duties, subject to the requirements of this chapter. |
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(b) An agency other than the department may not directly or |
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indirectly charge any person any fee for providing access to |
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criminal history record information. |
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Art. 60A.42. ACCESS TO NONCONVICTION INFORMATION PROVIDED |
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BY OTHER GOVERNMENT AGENCIES. An agency other than the department |
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may provide public access to nonconviction criminal history record |
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information only if: |
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(1) the agency warns the person accessing the records |
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that state law imposes civil and criminal penalties on anyone who |
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knowingly causes nonconviction records to be purchased or sold; |
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(2) the agency provides access to records: |
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(A) only at the agency's physical office, and not |
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remotely by electronic means; |
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(B) for one individual at a time, and not in bulk; |
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(C) in a format that omits the subject's social |
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security number and other personal identifying information |
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commonly sought by identity thieves; and |
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(D) in accordance with rules prescribed by the |
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office of court administration for judicial agencies, and by the |
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attorney general for executive agencies, to prevent the bulk |
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dissemination of searchable nonconviction records. |
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Art. 60A.43. DUTIES OF AGENCY MAKING CRIMINAL HISTORY |
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RECORD INFORMATION AND NONCONVICTION RECORDS AVAILABLE TO PUBLIC. |
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Each agency that chooses to make criminal history record |
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information or nonconviction records available to the public must: |
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(1) maintain an e-mail account to receive electronic |
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service of hearings and orders issued in response to petitions for |
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expunction or sealing under this chapter; |
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(2) provide the e-mail address described by |
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Subdivision (1) to the department and to the district clerk in each |
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county within the agency's jurisdiction; |
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(3) monitor the e-mail account described by |
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Subdivision (1) at least once each week; and |
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(4) comply with each order of expunction and with each |
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order of sealing issued under this chapter. |
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SUBCHAPTER F. PROHIBITED ACTS; OFFENSES; CIVIL PENALTIES |
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Art. 60A.51. PROHIBITED ACTS. (a) A person may not |
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directly or indirectly purchase or sell any form of public access to |
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any nonconviction record for any amount of money or other valuable |
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consideration. |
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(b) A person who has accessed criminal history record |
|
information for one purpose may not use that information for a |
|
different purpose, or make the information available to different |
|
persons, unless specifically authorized by statute, department |
|
rule, or court order. |
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(c) A person may not confirm the existence or absence of |
|
criminal history record information to any person who is not |
|
authorized to access the information. |
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Art. 60A.52. BULK DISTRIBUTION PROHIBITED. (a) The |
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department may not sell or otherwise provide public access to |
|
criminal history record information in any bulk form. |
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(b) The department may sell the means to access one |
|
individual's record for a single request, and prominently display |
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the date that the department provided each record. |
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Art. 60A.53. SUSPENSION OF ACCESS BY DEPARTMENT. (a) The |
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department shall suspend a person's access to criminal history |
|
record information maintained by the department if the person |
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violates or fails to comply with: |
|
(1) rules adopted by the department under this |
|
chapter; or |
|
(2) rules adopted by the Federal Bureau of |
|
Investigation that relate to the dissemination or use of criminal |
|
history record information. |
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(b) The department shall set the length of a person's |
|
suspension under this article for a period calculated to ensure the |
|
person's complete compliance with department rules in the future. |
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Art. 60A.54. OFFENSE: UNAUTHORIZED USE OR DISCLOSURE. (a) |
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A person commits an offense if the person knowingly: |
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(1) obtains criminal history record information in a |
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manner other than as authorized by this chapter; |
|
(2) uses criminal history record information for a |
|
purpose other than as authorized by this chapter; or |
|
(3) discloses criminal history record information to a |
|
person who is not entitled to the information under this chapter or |
|
department rules. |
|
(b) An offense under this article is a Class B misdemeanor, |
|
except that the offense is a felony of the second degree if the |
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offense is committed for remuneration or the promise of |
|
remuneration. |
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Art. 60A.55. OFFENSE: PURCHASE OR SALE OF NONCONVICTION |
|
RECORDS. (a) A person commits an offense if the person knowingly |
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purchases or sells nonconviction records. |
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(b) An offense under this article is a felony of the second |
|
degree. |
|
(c) For purposes of this article, a person purchases or |
|
sells access to nonconviction records if the person causes or |
|
employs another to cause the content of more than 10 nonconviction |
|
records to be made available by any form of search criteria in |
|
direct or indirect exchange for money or other valuable |
|
consideration, or for the promise of anything of value. |
|
Art. 60A.56. CIVIL LIABILITY. (a) A person may not: |
|
(1) obtain criminal history records in a manner other |
|
than as authorized by this chapter; |
|
(2) use the records for a purpose other than as |
|
authorized by this chapter; or |
|
(3) disclose the information to a person who is not |
|
entitled to the information under this chapter or department rules. |
|
(b) A person who violates Subsection (a) is liable to each |
|
subject of the criminal history record information for: |
|
(1) a civil penalty of $1,000; and |
|
(2) actual damages sustained as a result of the |
|
violation. |
|
(c) A person who prevails in an action brought under this |
|
article is entitled to recover court costs and reasonable |
|
attorney's fees. |
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SUBCHAPTER G. LIMITING ACCESS BY SEALING |
|
Art. 60A.61. AUTOMATIC SEALING OF NONCONVICTION RECORDS |
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AFTER CHARGES ARE REJECTED OR DISMISSED. (a) Each time the state |
|
files a document with a municipal, justice, county, or district |
|
clerk in which the state dismisses or rejects a case, complaint, |
|
information, or indictment, the clerk shall transmit to the |
|
department: |
|
(1) the state's filed document; and |
|
(2) any other information that the department requires |
|
to seal the records associated with the dismissed or rejected |
|
charges. |
|
(b) The clerk shall transmit by electronic means all |
|
information required by the department in a single transmission not |
|
later than the fifth business day after the date the document is |
|
filed under Subsection (a). |
|
(c) Not later than the 10th business day after the date a |
|
document described by Subsection (a) is filed, the state may |
|
prevent automatic sealing of nonconviction records under this |
|
article by notifying the department that the state intends to |
|
pursue different charges arising from the same incident. |
|
(d) Not earlier than the 11th business day but not later |
|
than the 15th business day after the date the department receives |
|
notice of a document filed under Subsection (a), if the department |
|
has not received notice from the state under Subsection (c), the |
|
department shall cause all records related to the charge and the |
|
arrest or citation to be automatically sealed under Article 60A.64. |
|
Art. 60A.62. COURT SEALING WHEN CHARGES DELAYED. (a) A |
|
person who has been arrested or issued a citation for commission of |
|
an offense may make a motion to seal records related to the arrest |
|
or citation if no information or indictment is pending, and all |
|
complaints that produced the arrest or citation: |
|
(1) are pending; or |
|
(2) were dismissed or rejected. |
|
(b) A motion under Subsection (a) must be made in the court |
|
where a charge based on the arrest or citation was last pending. A |
|
cost or fee is not required to file or adjudicate the motion. |
|
(c) The court shall notify the state of a hearing on the |
|
motion not later than the fifth business day before the date of the |
|
hearing. If the state files an indictment or information before the |
|
date of the hearing, the court shall deny the motion without a |
|
hearing. |
|
(d) On hearing, the court shall order records of any arrest |
|
or citation subject to delayed, rejected, or dismissed charges to |
|
be sealed if: |
|
(1) the court finds sealing the records to be in the |
|
best interest of justice; or |
|
(2) the following period has passed after the arrest |
|
or citation with no information or indictment pending: |
|
(A) three months if the only offenses charged by |
|
complaint on arrest or citation were Class C misdemeanors; |
|
(B) six months if a Class B or A misdemeanor was |
|
charged by complaint on arrest, but no felony was charged; and |
|
(C) one year if any felony was charged by |
|
complaint on arrest. |
|
(e) The clerk shall forward to the department by electronic |
|
means each order sealing records under this article. On receiving |
|
an order sealing records, the department shall cause all records |
|
related to the charge and the arrest or citation to be sealed as |
|
provided in the court's order. |
|
(f) The office of court administration shall prescribe and |
|
publish on its Internet website a form that courts may use to issue |
|
orders under this article. |
|
Art. 60A.63. ORDER OF DISCHARGE AND DISMISSAL OF DEFERRED |
|
ADJUDICATION. (a) Any time after expiration of a period of |
|
deferred adjudication or probation, the defendant may file a motion |
|
under the criminal cause number to seek an order of discharge and |
|
dismissal. A cost or fee is not required to file or adjudicate the |
|
motion. |
|
(b) If the defendant is eligible for an order of discharge |
|
and dismissal, the court shall promptly grant a motion under this |
|
subchapter. |
|
(c) The effective date of each discharge and dismissal for |
|
purposes of this subchapter is the date that the period of deferred |
|
adjudication or probation expired or was successfully completed by |
|
the defendant, not the date on which the court entered the order. |
|
The effective date must be written on each order of discharge and |
|
dismissal. |
|
(d) Each order of discharge and dismissal shall state: |
|
"If the defendant meets all requirements for automatic |
|
sealing of criminal history record information under Subchapter G, |
|
Chapter 60A, Code of Criminal Procedure, the defendant's records of |
|
the offenses at issue in this cause shall be sealed." |
|
(e) The court clerk shall provide one certified copy of each |
|
order of discharge and dismissal to the defendant without charge. |
|
Art. 60A.64. AUTOMATIC SEALING AFTER DISCHARGE AND |
|
DISMISSAL. (a) A defendant placed on deferred adjudication is |
|
eligible for automatic sealing under this subchapter: |
|
(1) on: |
|
(A) the effective date of the discharge and |
|
dismissal if the offense for which the person was placed on deferred |
|
adjudication was a misdemeanor other than a misdemeanor described |
|
in Paragraph (B); |
|
(B) the second anniversary of the effective date |
|
of the discharge and dismissal if the offense for which the person |
|
was placed on deferred adjudication was a misdemeanor offense |
|
involving violence under Chapter 20, 21, 22, 25, 42, or 46, Penal |
|
Code; or |
|
(C) the fifth anniversary of the effective date |
|
of the discharge and dismissal if the offense for which the person |
|
was placed on deferred adjudication was a felony; and |
|
(2) provided that the defendant: |
|
(A) was not convicted or placed on deferred |
|
adjudication for any offense during the entire period of deferred |
|
adjudication and waiting period under Subdivision (1), other than |
|
an offense under the Transportation Code punishable by fine only; |
|
and |
|
(B) has never been convicted or placed on |
|
deferred adjudication for: |
|
(i) an offense requiring registration as a |
|
sex offender under Chapter 62; |
|
(ii) an offense under Section 20.04, Penal |
|
Code, regardless of whether the offense is a reportable conviction |
|
or adjudication for purposes of Chapter 62; |
|
(iii) an offense under Section 19.02, |
|
19.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal Code; or |
|
(iv) any felony offense involving family |
|
violence, as defined by Section 71.004, Family Code. |
|
(b) If the agency responsible for a defendant's community |
|
supervision or probation concludes that the defendant is eligible |
|
for automatic sealing under this article, the agency shall notify |
|
the state. |
|
(c) If the state objects to automatic sealing and, not later |
|
than the 10th business day after the date the state receives notice |
|
that the defendant is eligible for automatic sealing, notifies the |
|
agency responsible for the defendant's supervision or probation of |
|
the objection, the records may not be automatically sealed. |
|
(d) If the agency responsible for the defendant's |
|
supervision or probation does not receive a timely objection from |
|
the state as described by Subsection (c), the agency shall, on or |
|
after the 11th business day after the date the agency notifies the |
|
state under Subsection (b): |
|
(1) promptly notify the department that the defendant |
|
is eligible for automatic sealing; and |
|
(2) provide the department with a copy of the order of |
|
discharge and dismissal and all information regarding the criminal |
|
history record information to be sealed that the department |
|
requires. |
|
(e) On receipt of an order of discharge and dismissal and |
|
the appropriate agency's statement that the defendant is eligible |
|
for automatic sealing, the department shall cause to be sealed all |
|
criminal history records related to the offense for which the |
|
person was placed on deferred adjudication. |
|
Art. 60A.65. COURT SEALING DEFERRED ADJUDICATION RECORDS BY |
|
MOTION. (a) If the agency responsible for the defendant's |
|
supervision or probation declines to automatically seal criminal |
|
history record information under Article 60A.64, the defendant may |
|
file a motion to seal the records. |
|
(b) A motion under this article must be filed under the |
|
criminal cause number and in the court that placed the defendant on |
|
deferred adjudication. |
|
(c) In ruling on a motion under this article, the court must |
|
make a finding as to whether the defendant is eligible for record |
|
sealing under Article 60A.64. If the court does not make a finding |
|
that the defendant is eligible, the court may not order the records |
|
sealed. |
|
(d) If the defendant is eligible for record sealing under |
|
Article 60A.64, the court shall decide whether to order the records |
|
sealed based on the court's determination of the best interest of |
|
justice. |
|
(e) In response to a motion under this article, the court |
|
shall enter an order sealing the deferred adjudication records or |
|
deny the motion. If the court orders records sealed, the clerk |
|
shall electronically transmit the order to the department. |
|
(f) Not later than the 10th business day after the date the |
|
department receives an order under this article, the department |
|
shall cause the records to be sealed as provided in the order. |
|
Art. 60A.66. UNSEALING OF DEFERRED ADJUDICATION RECORDS BY |
|
MOTION. (a) At any time before the second anniversary of the date |
|
criminal history record information is sealed under Article 60A.64 |
|
or 60A.65, the state may file a motion to unseal the records. |
|
(b) A motion under this article must be filed under the |
|
criminal cause number and in the court that placed the defendant on |
|
deferred adjudication. |
|
(c) In ruling on a motion under this article, the court |
|
shall determine whether the defendant is eligible for record |
|
sealing under Article 60A.64. If the court determines the |
|
defendant is ineligible under that article, the court may not order |
|
the records to remain sealed. |
|
(d) If the defendant is eligible for record sealing under |
|
Article 60A.64, the court shall decide whether to order the records |
|
unsealed based on the court's determination of the best interest of |
|
justice. |
|
(e) In response to a motion under this article, the court |
|
shall enter an order unsealing the deferred adjudication records or |
|
an order directing the records to remain sealed. If the court |
|
orders sealed records to be unsealed, the clerk shall |
|
electronically transmit the order to the department. |
|
(f) Not later than the 10th business day after the date the |
|
department receives an order under this article, the department |
|
shall cause the records to be unsealed as provided in the order. |
|
Art. 60A.67. SEALING PROCEDURE AND EFFECT. (a) If the |
|
department is required to cause records to be sealed under this |
|
subchapter, not later than the 10th business day after the date that |
|
the department receives the information that the department |
|
requires to seal records, the department shall: |
|
(1) seal the department's own records; |
|
(2) prepare a document: |
|
(A) stating: "By order of court and operation of |
|
Subchapter G, Chapter 60A, Code of Criminal Procedure, please take |
|
notice that within 30 days, you must take all actions necessary to |
|
prevent public access to the following records in your custody or |
|
control."; and |
|
(B) indicating all of the criminal history record |
|
information needing to be sealed; and |
|
(3) transmit by electronic means the document |
|
described by Subdivision (2) to each: |
|
(A) magistrate, court, prosecuting attorney, |
|
correctional facility, central state depository of criminal |
|
records, and any other official or agency or other entity of this |
|
state or of a political subdivision of this state; |
|
(B) central federal depository of criminal |
|
records if there is reason to believe that depository has criminal |
|
history record information that is the subject of the order; |
|
(C) private entity that purchases criminal |
|
history record information from the department or that otherwise is |
|
likely to have criminal history record information that is subject |
|
to the order; and |
|
(D) e-mail address provided under Articles |
|
60A.32 and 60A.43. |
|
(b) Not later than the 30th business day after the date of |
|
receipt of a sealing notice described by Subsection (a)(2), each |
|
person receiving notice shall seal all criminal history record |
|
information maintained by the person that is described in the |
|
sealing notice. |
|
Art. 60A.68. EFFECT OF SEALING. (a) A person whose |
|
criminal history record information is sealed under this subchapter |
|
is not required in any application for employment, education, |
|
housing, licensure, or credit to state that the person has been the |
|
subject of any criminal proceeding related to the sealed records. |
|
(b) A person may not discriminate against an applicant for |
|
employment, education, housing, licensure, or credit on the ground |
|
that the applicant withheld information as authorized by Subsection |
|
(a). |
|
(c) A criminal justice agency or sensitive service agency |
|
may inquire about the events that produced the sealed records and |
|
use information about the events giving rise to the record as one |
|
factor, but not the sole factor, in making an employment, |
|
education, licensing, or housing decision. |
|
Art. 60A.69. FORM. The office of court administration |
|
shall prescribe and publish forms by electronic means that courts |
|
may use to issue orders under this subchapter. |
|
SUBCHAPTER H. LIMITING ACCESS BY EXPUNCTION |
|
Art. 60A.71. RIGHT TO EXPUNCTION. (a) A person who has |
|
been placed under a custodial or noncustodial arrest for commission |
|
of a felony or misdemeanor or issued a citation for the commission |
|
of a misdemeanor is entitled to have all records relating to the |
|
arrest or citation expunged if: |
|
(1) the person is tried for the offense for which the |
|
person was arrested or issued a citation and is acquitted by a trial |
|
or appellate court, and if acquitted by a court of appeals, the |
|
period for filing a petition for discretionary review has expired; |
|
(2) the person is convicted and subsequently granted |
|
judicial or executive relief from conviction if the order granting |
|
relief states that the order is rendered on the basis of the |
|
person's actual innocence; |
|
(3) the person is convicted and subsequently pardoned; |
|
(4) following the arrest or citation, the person was |
|
charged with a Class C misdemeanor for which the person was granted |
|
a discharge and dismissal; |
|
(5) the state certifies that the records are not |
|
needed for use in any criminal investigation or prosecution, |
|
including an investigation or prosecution of another person; |
|
(6) an information or indictment was dismissed or |
|
quashed following arrest, no other information or indictment is |
|
pending from the arrest, and the court finds that the indictment or |
|
information was dismissed or quashed because: |
|
(A) the person completed a pretrial intervention |
|
program authorized under Section 76.011, Government Code; |
|
(B) the presentment of the indictment or |
|
information 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 |
|
(C) the indictment or information was void; or |
|
(7) prosecution of the person for the offense for |
|
which the person was arrested or issued a citation is no longer |
|
possible because the limitations period has expired. |
|
(b) When some but not all charges arising from an arrest or |
|
citation qualify for expunction under Subsection (a), the right to |
|
expunction extends to all records of the qualifying charges, but |
|
not to any arrest, citation, or charge that does not qualify. |
|
(c) If a defendant becomes eligible for records expunction |
|
while represented by counsel appointed under Article 26.04, counsel |
|
shall: |
|
(1) advise the defendant of the effect of expunction |
|
on civil and criminal proceedings and of the appropriate time to |
|
seek expunction; and |
|
(2) petition for expunction as part of appointed |
|
counsel's duties on request of the defendant. |
|
Art. 60A.72. DISTRICT COURT DECIDES EXPUNCTIONS. (a) The |
|
following persons may file an ex parte civil action seeking |
|
expunction under this subchapter: |
|
(1) a person who claims a right to expunction; or |
|
(2) if the person is deceased, the deceased person's |
|
grandparent, parent, spouse, adult brother, adult sister, or adult |
|
child. |
|
(b) An expunction petition must be filed in the district |
|
court for the county in which: |
|
(1) the arrest or citation at issue occurred; or |
|
(2) the offense at issue was alleged to have occurred. |
|
(c) An expunction petition must include: |
|
(1) the following identification information for the |
|
person claiming the right to expunction: |
|
(A) full name; |
|
(B) gender; |
|
(C) race; |
|
(D) date of birth; |
|
(E) driver's license number, if any; |
|
(F) social security number, if any; and |
|
(G) address at the time of the arrest or |
|
citation, if known; |
|
(2) the following arrest or citation information: |
|
(A) the date the person was arrested or the |
|
citation was issued; |
|
(B) whether an arrest was custodial or |
|
noncustodial; |
|
(C) the name of the arresting agency or agency |
|
issuing the citation; |
|
(D) the name of the county where the arrest or |
|
issuance of a citation occurred; and |
|
(E) the name of the municipality where the arrest |
|
or issuance of a citation occurred, if any; |
|
(3) for each offense charged in connection with the |
|
arrest or citation: |
|
(A) the offense charged; |
|
(B) the date that each charged offense is alleged |
|
to have occurred; and |
|
(C) the court and case number for each charged |
|
offense; and |
|
(4) which rights to expunction apply to each charge |
|
and each arrest or citation, as applicable. |
|
(d) On filing of each expunction petition, the court's clerk |
|
shall: |
|
(1) seal from public access all of its files in the |
|
expunction case that identify the petitioner; |
|
(2) consult the court coordinator of the assigned |
|
court and set a hearing date for each petition that is not earlier |
|
than the 30th calendar day after the date of the petition but not |
|
later than the 60th calendar day after the date of the petition; and |
|
(3) not later than the next business day after the date |
|
the expunction petition is filed, electronically transmit a copy of |
|
the petition and the hearing date, time, and place to: |
|
(A) the district attorney; |
|
(B) the county attorney; |
|
(C) the department; and |
|
(D) any criminal justice agency that has |
|
requested electronic notice of expunction proceedings from the |
|
court's clerk. |
|
(e) The court may grant any expunction petition at any time |
|
without a hearing if the district or county attorney agrees in |
|
writing that the petition should be granted. |
|
(f) At each expunction hearing the district court shall |
|
decide: |
|
(1) whether the petitioner has proved a right to |
|
expunction by a preponderance of the evidence; and |
|
(2) whether the county or district attorney has proved |
|
by a preponderance of the evidence that due to ongoing criminal, |
|
civil, or administrative proceedings, exceptions to expunction |
|
should be made, each of which must specify: |
|
(A) what records may be maintained; |
|
(B) which criminal justice agencies may maintain |
|
the records; and |
|
(C) for what period each criminal justice agency |
|
may maintain each record before destroying the record in compliance |
|
with the expunction order. |
|
(g) Not later than the third business day after the date of |
|
an expunction hearing, the district court shall enter an order |
|
directing or denying expunction. Each order granting expunction |
|
shall state: |
|
(1) the information identifying the person whose |
|
records are to be expunged required under Subsection (c)(1); |
|
(2) the incident number the department assigned the |
|
individual incident of arrest under Article 60.07(b)(1), if any; |
|
(3) which arrests or citations listed in Subsection |
|
(c)(2) are expunged; |
|
(4) which charged offenses listed in Subsection (c)(3) |
|
are expunged; and |
|
(5) any expunction limitations proved necessary by the |
|
county or district attorney. |
|
(h) The person who is the subject of the expunction order or |
|
any agency receiving the expunction order may appeal the court's |
|
decision in the same manner as in any other civil case. |
|
(i) Immediately on entry of each expunction order, the |
|
district court clerk shall: |
|
(1) provide without charge one certified paper copy of |
|
the order to the petitioner; |
|
(2) transmit a copy of the order by electronic means to |
|
the department's Crime Records Service; |
|
(3) transmit a copy of the order by electronic means to |
|
each person and agency that has provided an e-mail address to the |
|
district clerk under Articles 60A.32 and 60A.43; and |
|
(4) on the 30th calendar day after the date of the |
|
expunction order, expunge the court's entire case file. |
|
Art. 60A.73. EXPUNCTION PROCEDURE AND EFFECT; CRIMINAL |
|
PENALTIES. (a) Not later than the 10th business day after the date |
|
the department receives an expunction order from a district clerk, |
|
the department must expunge all charge records and all arrest or |
|
citation records as ordered. |
|
(b) Not later than the 30th calendar day after the date a |
|
person or agency receives an expunction order from a district |
|
clerk, the person or agency shall expunge all charge records and |
|
arrest or citation records in the possession of the person or |
|
agency, as ordered. |
|
(c) A record is expunged only if it is physically or |
|
electronically altered in a way that renders impossible any use of |
|
the record to connect the person identified in the order as |
|
connected to the expunged arrest, citation, or charge. |
|
Art. 60A.74. OFFENSE: FAILURE TO DESTROY RECORDS SUBJECT TO |
|
ORDER OF EXPUNCTION. (a) A person who knowingly fails to destroy |
|
identifying portions of a record ordered expunged under this |
|
chapter commits an offense. |
|
(b) An offense under this article is a Class B misdemeanor, |
|
except that: |
|
(1) the offense is a Class A misdemeanor if the person |
|
has been previously convicted of an offense under this article; and |
|
(2) the offense is a second degree felony if the person |
|
has been previously convicted two or more times of an offense under |
|
this article. |
|
Art. 60A.75. OFFENSE: RELEASE OF EXPUNGED INFORMATION. (a) |
|
A person commits an offense if the person releases, publishes, or |
|
uses records the person knows have been ordered expunged under this |
|
chapter. |
|
(b) An offense under this article is a Class B misdemeanor, |
|
except that: |
|
(1) the offense is a Class A misdemeanor if the person |
|
has been previously convicted of an offense under this article; and |
|
(2) the offense is a second degree felony if the person |
|
has been previously convicted two or more times of an offense under |
|
this article. |
|
Art. 60A.76. EFFECT OF EXPUNCTION. (a) A person whose |
|
criminal history record information has been expunged under this |
|
subchapter may deny the occurrence of the arrest, citation, or |
|
charge and the existence of the expunction order. |
|
(b) A person may not discriminate against an applicant for |
|
employment, housing, education, licensure, or credit because the |
|
applicant withheld information on an application as permitted by |
|
Subsection (a). |
|
(c) If any person is questioned under oath in a criminal |
|
proceeding about an arrest, citation, or charge for which the |
|
records have been expunged, the person may state only that the |
|
matter in question has been expunged. |
|
Art. 60A.77. FORMS. The office of court administration |
|
shall prescribe and publish by electronic means forms for the |
|
petition for expunction and order for expunction under this |
|
subchapter. |
|
SUBCHAPTER I. CORRECTING ERRONEOUS RECORDS |
|
Art. 60A.81. CENTRALIZED CORRECTION REQUESTS; |
|
INVESTIGATION. (a) Any person who becomes aware that criminal |
|
history records contain erroneous information, that sealed records |
|
are publicly available, or that expunged records are available, may |
|
seek correction of records by filling out a form available on the |
|
department's Internet website, or by telephoning the department's |
|
Crime Records Service. |
|
(b) The department shall collect and record all correction |
|
requests without charging a fee and in a manner that facilitates |
|
presentation of requests. |
|
(c) The department shall investigate each request, and |
|
electronically transmit a written statement or make a telephone |
|
call informing the requestor of the status or response at least once |
|
during each 30-day period until the request is resolved. |
|
(d) The department may deny a request for failure to provide |
|
necessary information only when the department is unable to get the |
|
information from another source without significant time or |
|
expense. |
|
(e) The department may require a requestor to submit |
|
fingerprints only if necessary to establish facts to correct the |
|
record at issue. The department shall make necessary |
|
fingerprinting available to requestors without charge. |
|
Art. 60A.82. ADMINISTRATIVE CORRECTION OF ERRONEOUS |
|
RECORDS. (a) If the department determines that any of the |
|
department's criminal history record information contains an |
|
error, the department shall correct the record and electronically |
|
transmit notice to all agencies and persons the department |
|
considers reasonably likely to have received the erroneous |
|
information from the department. The notice must state that all |
|
agencies and persons receiving the notice must correct the records. |
|
(b) If the department becomes aware that a criminal justice |
|
agency's criminal history records may be erroneous, the department |
|
shall contact the agency and attempt to resolve the issue by |
|
agreement. |
|
(c) If the department and a criminal justice agency agree |
|
that the agency's records contain an error, the agency shall |
|
correct the record and the department shall correct all the |
|
department records to be consistent with the agency's correction. |
|
The department shall transmit notice of the correction |
|
electronically to all agencies and persons the department considers |
|
reasonably likely to have received the erroneous information from |
|
the department. The notice must state that all agencies and persons |
|
receiving the notice must correct the records. |
|
Art. 60A.83. JUDICIAL CORRECTION OF ERRONEOUS RECORDS. (a) |
|
If the department denies a correction request for any reason, the |
|
requestor may file a civil action: |
|
(1) in the district court where the requestor resides, |
|
if the requestor resides in this state; or |
|
(2) in the district court in Travis County, if the |
|
requestor resides in another state. |
|
(b) If the department does not deny a correction request, |
|
but the correction is not administratively completed due to |
|
disagreement with another criminal justice agency, the requestor |
|
may file a civil action in the district court where the criminal |
|
justice agency is located. |
|
(c) The department and the department's counsel may appear |
|
remotely, by telephone or video conference, in any civil proceeding |
|
filed under this article. |
|
(d) The only relief available in an action under this |
|
article, after discovery, is: |
|
(1) injunctive relief as necessary to secure accurate |
|
criminal history records; and |
|
(2) all litigation costs, not including attorney's |
|
fees. |
|
SUBCHAPTER J. REFERENCES IN LAW |
|
Art. 60A.91. REFERENCES TO ORDERS OF NONDISCLOSURE AND |
|
ORDERS OF EXPUNCTION. (a) A reference in law to an order of |
|
nondisclosure or any provision of Subchapter F, Chapter 411, |
|
Government Code, means a reference to record sealing under |
|
Subchapter G of this code. |
|
(b) A reference in law to expunction or any provision of |
|
Chapter 55 means a reference to Subchapter H. |
|
SECTION 4. The following are repealed: |
|
(1) Chapter 55, Code of Criminal Procedure; and |
|
(2) Subchapter F, Chapter 411, Government Code. |
|
SECTION 5. A sensitive service agency is not required to |
|
adopt the policy prescribed by Article 60A.22, Code of Criminal |
|
Procedure, as added by this Act, before September 1, 2017. |
|
SECTION 6. This Act takes effect September 1, 2015. |