85R5583 LHC-D

By: Blanco H.B. No. 1740

A BILL TO BE ENTITLED

AN ACT

relating to the administration of veterans treatment court programs, the expunction of arrest records and files for certain participants who successfully complete a program, and the issuance of orders of nondisclosure for participants convicted of a misdemeanor; changing a fee.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 55.01(a), Code of Criminal Procedure, is amended to read as follows:

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c); or

(B) convicted and subsequently:

(i) pardoned for a reason other than that described by Subparagraph (ii); or

(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person's actual innocence; or

(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest, and:

(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or

(d) the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because:

(a) the person was arrested for an offense punishable as a Class B or Class C misdemeanor and subsequently completed a veterans treatment court program under Chapter 124, Government Code, or former law;

(b) the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or, if the person was arrested for an offense punishable as a Class A misdemeanor or any higher category of offense, a veterans treatment court program under Chapter 124, Government Code, or former law;

(c) [because] the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense; or

(d) [, or because] the indictment or information was void; or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

SECTION 2. Section 1a, Article 55.02, Code of Criminal Procedure, is amended by adding Subsection (a-1) to read as follows:

(a-1) A trial court dismissing a case of a person arrested for a Class B or Class C misdemeanor, following the person's successful completion of a veterans treatment court program created under Chapter 124, Government Code, or former law, if the trial court is a district court, or a district court in the county in which the trial court is located shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(2)(A)(ii)(a) not later than the 30th day after the date the court dismisses the case or receives the information regarding that dismissal, as applicable.

SECTION 3. Section 2(a), Article 55.02, Code of Criminal Procedure, is amended to read as follows:

(a) A person who is entitled to expunction of records and files under Article 55.01(a)(1)(B)(i) or under Article 55.01(a)(2), other than Article 55.01(a)(2)(A)(ii)(a), or a person who is eligible for expunction of records and files under Article 55.01(b) may file an ex parte petition for expunction in a district court for the county in which:

(1) the petitioner was arrested; or

(2) the offense was alleged to have occurred.

SECTION 4. Section 103.027(a), Government Code, is amended to read as follows:

(a) Fees and costs shall be paid or collected under the Government Code as follows:

(1) filing a certified copy of a judicial finding of fact and conclusion of law if charged by the secretary of state (Sec. 51.905, Government Code) . . . $15;

(2) cost paid by each surety posting the bail bond for an offense other than a misdemeanor punishable by fine only under Chapter 17, Code of Criminal Procedure, for the assistant prosecutor supplement fund and the fair defense account (Sec. 41.258, Government Code) . . . $15, provided the cost does not exceed $30 for all bail bonds posted at that time for an individual and the cost is not required on the posting of a personal or cash bond;

(3) to participate in a court proceeding in this state, a nonresident attorney fee (Sec. 82.0361, Government Code) . . . $250 except as waived or reduced under supreme court rules for representing an indigent person;

(4) on a party's appeal of a final decision in a contested case, the cost of preparing the original or a certified copy of the record of the agency proceeding, if required by the agency's rule, as a court cost (Sec. 2001.177, Government Code) . . . as assessed by the court, all or part of the cost of preparation;

(5) a program fee for a drug court program (Sec. 123.004, Government Code) . . . not to exceed $1,000;

(6) an alcohol or controlled substance testing, counseling, and treatment fee (Sec. 123.004, Government Code) . . . the amount necessary to cover the costs of testing, counseling, and treatment;

(7) a reasonable program fee for a veterans treatment court program (Sec. 124.005, Government Code) . . . not to exceed $500 [$1,000];

(8) a testing, counseling, and treatment fee for testing, counseling, or treatment performed or provided under a veterans treatment court program (Sec. 124.005, Government Code) . . . the amount necessary to cover the costs of testing, counseling, or treatment; and

(9) a nonrefundable program fee for a prostitution prevention program (Sec. 126.006, Government Code) . . . a reasonable amount not to exceed $1,000, which must include a counseling and services fee in an amount necessary to cover the costs of counseling and services provided by the program, a victim services fee in an amount equal to 10 percent of the total fee, and a law enforcement training fee in an amount equal to five percent of the total fee.

SECTION 5. Section 124.001, Government Code, is amended by amending Subsection (b) and adding Subsections (c) and (d) to read as follows:

(b) If a defendant who was arrested for or charged with, but not convicted of or placed on deferred adjudication community supervision for, an offense successfully completes a veterans treatment court program, after notice to the attorney representing the state and a hearing in the veterans treatment court at which that court determines that a dismissal is in the best interest of justice, the veterans treatment court shall provide its findings with respect to the dismissal to the court in which the criminal case is pending and shall include, for a defendant entitled to expunction, all of the information required for a petition under Section 2(b), Article 55.02, Code of Criminal Procedure. If the veterans treatment court determines that a dismissal is in the best interest of justice for a program participant, the court in which the criminal case is pending shall dismiss the case against the participant. For a participant who is entitled to an automatic order of expunction under Section 1a(a-1), Article 55.02, Code of Criminal Procedure, the court in which the criminal case is pending shall:

(1) enter the order on behalf of the participant, if that court is a district court; or

(2) if that court is not a district court, forward the appropriate dismissal and expunction information to a district court with jurisdiction to enter the order on behalf of the participant [defendant].

(c) Regardless of whether the defendant was convicted of the offense for which the defendant entered the veterans treatment court program or whether the applicable court with jurisdiction over the criminal case deferred further proceedings without entering an adjudication of guilt, if a defendant successfully completes a veterans treatment court program and the case was not dismissed under Subsection (b), after notice to the state and a hearing on whether the defendant is otherwise entitled to the petition and whether issuance of the order is in the best interest of justice, the court shall enter an order of nondisclosure of criminal history record information under Subchapter E-1, Chapter 411, as if the defendant had received a discharge and dismissal under Article 42A.111, Code of Criminal Procedure, with respect to all records and files related to the defendant's arrest for the offense for which the defendant entered the program if the defendant entered the program based on an offense punishable as a misdemeanor and:

(1) has not been previously convicted of an offense listed in Article 42A.054(a), Code of Criminal Procedure, or a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure; and

(2) is not convicted for any felony offense between the date on which the defendant successfully completed the program and the second anniversary of that date.

(d) Notwithstanding Subsection (c), a defendant is not entitled to petition the court for an order of nondisclosure of criminal history record information following successful completion of a veterans treatment court program if the defendant's entry into the program arose as the result of a conviction for an offense involving the operation of a motor vehicle while intoxicated and it was shown on the trial of the offense that the defendant's operation of a motor vehicle while intoxicated caused bodily injury to another. In this subsection, "bodily injury" has the meaning assigned by Section 1.07, Penal Code.

SECTION 6. Sections 124.002(a) and (c), Government Code, are amended to read as follows:

(a) The commissioners court of a county may establish a veterans treatment court program for persons arrested for, [or] charged with, convicted of, or placed on deferred adjudication community supervision for any misdemeanor or felony offense. A defendant is eligible to participate in a veterans treatment court program established under this chapter only if the attorney representing the state consents to the defendant's participation in the program and if the court in which the criminal case is pending or in which the defendant was convicted or placed on deferred adjudication community supervision, as applicable, finds that the defendant is a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard, who:

(1) suffers from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, or was a victim of military sexual trauma if the injury, illness, disorder, or trauma [that]:

(A) occurred during or resulted from the defendant's military service; and

(B) affected the defendant's criminal conduct at issue in the case; or

(2) is a defendant whose participation in a veterans treatment court program, considering the circumstances of the defendant's conduct, personal and social background, and criminal history, is likely to achieve the objective of ensuring public safety through rehabilitation of the veteran in the manner provided by Section 1.02(1), Penal Code.

(c) Proof of matters described by Subsection (a) may be submitted to the applicable criminal court [in which the criminal case is pending] in any form the court determines to be appropriate, including military service and medical records, previous determinations of a disability by a veteran's organization or by the United States Department of Veterans Affairs, testimony or affidavits of other veterans or service members, and prior determinations of eligibility for benefits by any state or county veterans office. The court's findings must accompany any docketed case.

SECTION 7. Section 124.003(a), Government Code, is amended to read as follows:

(a) A veterans treatment court program established under this chapter must:

(1) if there has not yet been a disposition in the criminal case, ensure that a defendant eligible for participation in the program is provided legal counsel before volunteering to proceed through the program and while participating in the program;

(2) allow a participant arrested for or charged with an offense to withdraw from the program at any time before a trial on the merits has been initiated;

(3) provide a participant with a court-ordered individualized treatment plan indicating the services that will be provided to the participant; and

(4) ensure that the jurisdiction of the veterans treatment court continues for a period of not less than six months but does not continue beyond the period of community supervision for the offense charged.

SECTION 8. Section 124.005(a), Government Code, is amended to read as follows:

(a) A veterans treatment court program established under this chapter may collect from a participant in the program:

(1) a reasonable program fee not to exceed $500 [$1,000]; and

(2) a testing, counseling, and treatment fee in an amount necessary to cover the costs of any testing, counseling, or treatment performed or provided under the program.

SECTION 9. Section 103.0271, Government Code, is repealed.

SECTION 10. (a) The changes in law made by this Act in amending Chapter 55, Code of Criminal Procedure, and in amending Section 124.001(b), Government Code, apply to the expunction of arrest records and files for an arrested person who successfully completes a veterans treatment court program under Chapter 124, Government Code, or former law, before, on, or after the effective date of this Act, regardless of when the underlying arrest occurred.

(b) For a person who is arrested for a Class B or Class C misdemeanor and who is entitled to expunction under Article 55.01(a)(2)(A)(ii)(a), Code of Criminal Procedure, as added by this Act, based on a successful completion of a veterans treatment court program under Chapter 124, Government Code, or former law, before the effective date of this Act, notwithstanding the 30-day time limit provided for the court to enter an automatic order of expunction under Section 1a(a-1), Article 55.02, Code of Criminal Procedure, as added by this Act, the court shall enter an order of expunction for the person as soon as practicable after the court receives written notice from any party to the case about the person's entitlement to the expunction.

(c) The change in law made by this Act by adding Sections 124.001(c) and (d), Government Code, and amending Sections 124.002 and 124.005(a), Government Code, applies to a person who, on or after the effective date of this Act, enters a veterans treatment court program under Chapter 124, Government Code, regardless of whether the person committed the offense for which the person enters the program before, on, or after the effective date of this Act.

SECTION 11. To the extent of any conflict, this Act prevails over another Act of the 85th Legislature, Regular Session, 2017, relating to nonsubstantive additions to and corrections in enacted codes.

SECTION 12. This Act takes effect September 1, 2017.