| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the eligibility of a criminal defendant for an order of |
|
|
nondisclosure of criminal history record information. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Subchapter E-1, Chapter 411, Government Code, is |
|
|
amended by adding Section 411.0716 to read as follows: |
|
|
Sec. 411.0716. APPLICABILITY OF SUBCHAPTER. (a) Except as |
|
|
provided by Subsection (b), this subchapter applies to the issuance |
|
|
of an order of nondisclosure of criminal history record information |
|
|
for an offense committed before, on, or after September 1, 2017. |
|
|
(b) Section 411.072 applies only to a person described by |
|
|
Subsection (a) of that section who receives a discharge and |
|
|
dismissal under Article 42A.111, Code of Criminal Procedure, on or |
|
|
after September 1, 2017. |
|
|
SECTION 2. Section 411.072, Government Code, is amended by |
|
|
amending Subsections (a) and (b) and adding Subsection (d) to read |
|
|
as follows: |
|
|
(a) This section applies only to a person who: |
|
|
(1) was placed on deferred adjudication community |
|
|
supervision under Subchapter C [Section 5], Chapter 42A [Article
|
|
|
42.12], Code of Criminal Procedure, for a misdemeanor other than a |
|
|
misdemeanor: |
|
|
(A) under Chapter 20, 21, 22, 25, 42, 43, 46, or |
|
|
71, Penal Code; or |
|
|
(B) with respect to which an affirmative finding |
|
|
under [Section 5(k),] Article 42A.105(f) [42.12], Code of Criminal |
|
|
Procedure, was filed in the papers of the case; and |
|
|
(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
|
|
other than a traffic [an] offense [under the Transportation Code] |
|
|
that is punishable by fine only. |
|
|
(b) Notwithstanding any other provision of this subchapter |
|
|
or Subchapter F, if a person described by Subsection (a) receives a |
|
|
discharge and dismissal under [Section 5(c),] Article 42A.111 |
|
|
[42.12], Code of Criminal Procedure, and satisfies the requirements |
|
|
of Section 411.074, the court that placed the person on deferred |
|
|
adjudication community supervision shall issue an order of |
|
|
nondisclosure of criminal history record information under this |
|
|
subchapter prohibiting criminal justice agencies from disclosing |
|
|
to the public criminal history record information related to the |
|
|
offense giving rise to the deferred adjudication community |
|
|
supervision. The court shall determine whether the person |
|
|
satisfies the requirements of Section 411.074, and if the court |
|
|
makes a finding that the requirements of that section are |
|
|
satisfied, the court shall issue the order of nondisclosure of |
|
|
criminal history record information: |
|
|
(1) at the time the court discharges and dismisses the |
|
|
proceedings against the person, if the discharge and dismissal |
|
|
occurs on or after the 180th day after the date the court placed the |
|
|
person on deferred adjudication community supervision; or |
|
|
(2) as soon as practicable on or after the 180th day |
|
|
after the date the court placed the person on deferred adjudication |
|
|
community supervision, if the discharge and dismissal occurred |
|
|
before that date. |
|
|
(d) A person who is not eligible to receive an order of |
|
|
nondisclosure of criminal history record information under this |
|
|
section solely because an affirmative finding under Article |
|
|
42A.105(f), Code of Criminal Procedure, was filed in the papers of |
|
|
the case may file a petition for an order of nondisclosure of |
|
|
criminal history record information under Section 411.0725 if the |
|
|
person otherwise satisfies the requirements of that section. |
|
|
SECTION 3. The heading to Section 411.073, Government Code, |
|
|
is amended to read as follows: |
|
|
Sec. 411.073. PROCEDURE FOR COMMUNITY SUPERVISION |
|
|
FOLLOWING CONVICTION; CERTAIN MISDEMEANORS AND STATE JAIL |
|
|
FELONIES. |
|
|
SECTION 4. Sections 411.073(a), (b), and (d), Government |
|
|
Code, are amended to read as follows: |
|
|
(a) This section applies only to a person placed on |
|
|
community supervision under Chapter 42A [Article 42.12], Code of |
|
|
Criminal Procedure: |
|
|
(1) following a conviction of: |
|
|
(A) a misdemeanor other than a misdemeanor under |
|
|
Section 106.041, Alcoholic Beverage Code, Section 49.04, 49.05, |
|
|
49.06, or 49.065, Penal Code, or Chapter 71, Penal Code; or |
|
|
(B) a state jail felony under Section 481.115, |
|
|
481.1151, 481.116, 481.1161, or 481.121, Health and Safety Code; |
|
|
and |
|
|
(2) under a provision of Chapter 42A [Article 42.12], |
|
|
Code of Criminal Procedure, other than Subchapter C [Section 5], |
|
|
including: |
|
|
(A) a provision that requires the person to serve |
|
|
a term of confinement as a condition of community supervision; or |
|
|
(B) another provision that authorizes placing a |
|
|
person on community supervision after the person has served part of |
|
|
a term of confinement imposed for the offense. |
|
|
(b) Notwithstanding any other provision of this subchapter |
|
|
or Subchapter F, a person described by Subsection (a) whose |
|
|
community supervision is not revoked and who completes the period |
|
|
of community supervision, including any term of confinement imposed |
|
|
and payment of all fines, costs, and restitution imposed, may |
|
|
petition the court that placed the person on community supervision |
|
|
for an order of nondisclosure of criminal history record |
|
|
information under this section if the person: |
|
|
(1) satisfies the requirements of this section and |
|
|
Section 411.074; and |
|
|
(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
|
|
other than a traffic [an] offense [under the Transportation Code] |
|
|
that is punishable by fine only. |
|
|
(d) A person may petition the court that placed the person |
|
|
on community supervision for an order of nondisclosure of criminal |
|
|
history record information under this section only on or after: |
|
|
(1) the completion of the community supervision, if |
|
|
the offense for which the person was placed on community |
|
|
supervision was a misdemeanor other than a misdemeanor described by |
|
|
Subdivision (2); [or] |
|
|
(2) the second anniversary of the date of completion |
|
|
of the community supervision, if the offense for which the person |
|
|
was placed on community supervision was a misdemeanor under Chapter |
|
|
20, 21, 22, 25, 42, 43, or 46, Penal Code; or |
|
|
(3) the fifth anniversary of the date of completion of |
|
|
the community supervision, if the offense for which the person was |
|
|
placed on community supervision was a state jail felony. |
|
|
SECTION 5. Subchapter E-1, Chapter 411, Government Code, is |
|
|
amended by adding Section 411.0731 to read as follows: |
|
|
Sec. 411.0731. PROCEDURE FOR COMMUNITY SUPERVISION |
|
|
FOLLOWING CONVICTION; CERTAIN DRIVING WHILE INTOXICATED |
|
|
CONVICTIONS. (a) This section applies only to a person placed on |
|
|
community supervision under Chapter 42A, Code of Criminal |
|
|
Procedure: |
|
|
(1) following a conviction of an offense under Section |
|
|
49.04, Penal Code, other than an offense punishable under |
|
|
Subsection (d) of that section; and |
|
|
(2) under a provision of Chapter 42A, Code of Criminal |
|
|
Procedure, other than Subchapter C, including: |
|
|
(A) a provision that requires the person to serve |
|
|
a term of confinement as a condition of community supervision; or |
|
|
(B) another provision that authorizes placing a |
|
|
person on community supervision after the person has served part of |
|
|
a term of confinement imposed for the offense. |
|
|
(b) Notwithstanding any other provision of this subchapter |
|
|
or Subchapter F, a person described by Subsection (a) whose |
|
|
community supervision is not revoked and who completes the period |
|
|
of community supervision, including any term of confinement imposed |
|
|
and payment of all fines, costs, and restitution imposed, may |
|
|
petition the court that placed the person on community supervision |
|
|
for an order of nondisclosure of criminal history record |
|
|
information under this section if the person: |
|
|
(1) satisfies the requirements of this section and |
|
|
Section 411.074; |
|
|
(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
|
|
other than a traffic offense that is punishable by fine only; and |
|
|
(3) either: |
|
|
(A) successfully completed a condition of |
|
|
community supervision, or complied with a provision of a court |
|
|
order entered on or after the conviction, that, for a period of not |
|
|
less than six months, restricted the person's operation of a motor |
|
|
vehicle to a motor vehicle equipped with an ignition interlock |
|
|
device; or |
|
|
(B) agrees to comply with an order issued under |
|
|
Subsection (d)(2) restricting the person's operation of a motor |
|
|
vehicle to a motor vehicle equipped with an ignition interlock |
|
|
device for a period of not less than six months. |
|
|
(c) A petition for an order of nondisclosure of criminal |
|
|
history record information filed under this section must include |
|
|
evidence that the person is entitled to file the petition. |
|
|
(d) Except as provided by Subsection (f), 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 an order |
|
|
of nondisclosure of criminal history record information is in the |
|
|
best interest of justice, the court shall: |
|
|
(1) 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, if the person satisfied the requirement of Subsection |
|
|
(b)(3)(A); or |
|
|
(2) as a condition of entering any future order of |
|
|
nondisclosure of criminal history record information regarding the |
|
|
offense under Section 49.04, Penal Code, issue an order in a manner |
|
|
consistent with Section 521.246, Transportation Code, restricting |
|
|
the person's operation of a motor vehicle, for a period of not less |
|
|
than six months, to a motor vehicle equipped with an ignition |
|
|
interlock device, if the person satisfied the requirement of |
|
|
Subsection (b)(3)(B). |
|
|
(e) On receiving evidence sufficient to the court that a |
|
|
person ordered to install and use an ignition interlock device |
|
|
under Subsection (d)(2) successfully completed all of the terms of |
|
|
the order and that during the period following the issuance of that |
|
|
order the person has not been convicted of or placed on deferred |
|
|
adjudication community supervision under Subchapter C, Chapter |
|
|
42A, Code of Criminal Procedure, for any offense other than a |
|
|
traffic offense that is punishable by fine only, the court that |
|
|
placed the person on community supervision 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. |
|
|
(f) A court may not issue an order of nondisclosure of |
|
|
criminal history record information under this section or issue an |
|
|
order under Subsection (d)(2) if the attorney representing the |
|
|
state presents evidence sufficient to the court demonstrating that |
|
|
the commission of the offense for which the order is sought resulted |
|
|
in a motor vehicle accident involving another person, including a |
|
|
passenger in a motor vehicle operated by the person seeking the |
|
|
order of nondisclosure. |
|
|
(g) A person may petition the court that placed the person |
|
|
on community supervision for an order of nondisclosure of criminal |
|
|
history record information under this section only on or after the |
|
|
second anniversary of the date of completion of the community |
|
|
supervision. |
|
|
SECTION 6. Section 411.0735, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.0735. PROCEDURE FOR CONVICTION [AND CONFINEMENT]; |
|
|
CERTAIN MISDEMEANORS AND STATE JAIL FELONIES. (a) This section |
|
|
applies only to a person who: |
|
|
(1) is convicted of: |
|
|
(A) a misdemeanor other than a misdemeanor under |
|
|
Section 106.041, Alcoholic Beverage Code, Section 49.04, 49.05, |
|
|
49.06, or 49.065, Penal Code, or Chapter 71, Penal Code; or |
|
|
(B) a state jail felony under Section 481.115, |
|
|
481.1151, 481.116, 481.1161, or 481.121, Health and Safety Code; |
|
|
and |
|
|
(2) [is sentenced to and serves a period of
|
|
|
confinement; and
|
|
|
[(3)] is not eligible for an order of nondisclosure of |
|
|
criminal history record information under Section 411.073. |
|
|
(b) Notwithstanding any other provision of this subchapter |
|
|
or Subchapter F, a person described by Subsection (a) who completes |
|
|
the person's sentence, including any term of confinement imposed |
|
|
and payment of all fines, costs, and restitution imposed, [period
|
|
|
of confinement and is released] may petition the court that imposed |
|
|
the sentence for an order of nondisclosure of criminal history |
|
|
record information under this section if the person: |
|
|
(1) satisfies the requirements of this section and |
|
|
Section 411.074; and |
|
|
(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
|
|
other than a traffic [an] offense that is [under the Transportation
|
|
|
Code] punishable by fine only. |
|
|
(c) 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 for which the person was convicted [giving
|
|
|
rise to the confinement]. |
|
|
(d) A person may petition the court that imposed the |
|
|
sentence for an order of nondisclosure of criminal history record |
|
|
information under this section only on or after: |
|
|
(1) the date of completion of the person's sentence, if |
|
|
the offense of which the person was convicted was a misdemeanor |
|
|
punishable by fine only; |
|
|
(2) the second anniversary of the date of completion |
|
|
of the person's sentence, if the offense of which the person was |
|
|
convicted was a misdemeanor other than a misdemeanor described by |
|
|
Subdivision (1); or |
|
|
(3) the fifth anniversary of the date of completion of |
|
|
the person's sentence, if the offense of which the person was |
|
|
convicted was a state jail felony [period of confinement]. |
|
|
SECTION 7. Subchapter E-1, Chapter 411, Government Code, is |
|
|
amended by adding Section 411.0736 to read as follows: |
|
|
Sec. 411.0736. PROCEDURE FOR CONVICTION; CERTAIN DRIVING |
|
|
WHILE INTOXICATED CONVICTIONS. (a) This section applies only to a |
|
|
person who: |
|
|
(1) is convicted of an offense under Section 49.04, |
|
|
Penal Code, other than an offense punishable under Subsection (d) |
|
|
of that section; and |
|
|
(2) is not eligible for an order of nondisclosure of |
|
|
criminal history record information under Section 411.0731. |
|
|
(b) Notwithstanding any other provision of this subchapter |
|
|
or Subchapter F, a person described by Subsection (a) who completes |
|
|
the person's sentence, including any term of confinement imposed |
|
|
and payment of all fines, costs, and restitution imposed, may |
|
|
petition the court that imposed the sentence for an order of |
|
|
nondisclosure of criminal history record information under this |
|
|
section if the person: |
|
|
(1) satisfies the requirements of this section and |
|
|
Section 411.074; |
|
|
(2) has never been previously convicted of or placed |
|
|
on deferred adjudication community supervision for another offense |
|
|
other than a traffic offense that is punishable by fine only; and |
|
|
(3) either: |
|
|
(A) successfully completed a condition of the |
|
|
sentence, or complied with a provision of a court order entered on |
|
|
or after conviction, that, for a period of not less than six months, |
|
|
restricted the person's operation of a motor vehicle to a motor |
|
|
vehicle equipped with an ignition interlock device; or |
|
|
(B) agrees to comply with an order issued under |
|
|
Subsection (d)(2) restricting the person's operation of a motor |
|
|
vehicle to a motor vehicle equipped with an ignition interlock |
|
|
device for a period not to exceed six months. |
|
|
(c) A petition for an order of nondisclosure of criminal |
|
|
history record information filed under this section must include |
|
|
evidence that the person is entitled to file the petition. |
|
|
(d) Except as provided by Subsection (f), 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 an order |
|
|
of nondisclosure of criminal history record information is in the |
|
|
best interest of justice, the court shall: |
|
|
(1) issue an order prohibiting criminal justice |
|
|
agencies from disclosing to the public criminal history record |
|
|
information related to the offense for which the person was |
|
|
convicted, if the person satisfied the requirement of Subsection |
|
|
(b)(3)(A); or |
|
|
(2) as a condition of entering any future order of |
|
|
nondisclosure of criminal history record information regarding the |
|
|
offense under Section 49.04, Penal Code, issue an order in a manner |
|
|
consistent with Section 521.246, Transportation Code, restricting |
|
|
the person's operation of a motor vehicle, for a period of not less |
|
|
than six months, to a motor vehicle equipped with an ignition |
|
|
interlock device, if the person satisfied the requirement of |
|
|
Subsection (b)(3)(B). |
|
|
(e) On receiving evidence sufficient to the court that a |
|
|
person ordered to install and use an ignition interlock device |
|
|
under Subsection (d)(2) successfully completed all of the terms of |
|
|
the order and that during the period following the issuance of that |
|
|
order the person has not been convicted of or placed on deferred |
|
|
adjudication community supervision under Subchapter C, Chapter |
|
|
42A, Code of Criminal Procedure, for any offense other than a |
|
|
traffic offense that is punishable by fine only, the court that |
|
|
imposed the sentence shall issue an order prohibiting criminal |
|
|
justice agencies from disclosing to the public criminal history |
|
|
record information related to the offense of which the person was |
|
|
convicted. |
|
|
(f) A court may not issue an order of nondisclosure of |
|
|
criminal history record information under this section or issue an |
|
|
order under Subsection (d)(2) if the attorney representing the |
|
|
state presents evidence sufficient to the court demonstrating that |
|
|
the commission of the offense for which the order is sought resulted |
|
|
in a motor vehicle accident involving another person, including a |
|
|
passenger in a motor vehicle operated by the person seeking the |
|
|
order of nondisclosure. |
|
|
(g) A person may petition the court that imposed the |
|
|
sentence for an order of nondisclosure of criminal history record |
|
|
information under this section on or after the third anniversary of |
|
|
the date of completion of the person's sentence. |
|
|
SECTION 8. Section 411.074, Government Code, is amended to |
|
|
read as follows: |
|
|
Sec. 411.074. REQUIRED CONDITIONS FOR RECEIVING AN ORDER OF |
|
|
NONDISCLOSURE. (a) A person may be granted an order of |
|
|
nondisclosure of criminal history record information under this |
|
|
subchapter and, when applicable, is entitled to petition the court |
|
|
to receive an order under this subchapter only if, during the period |
|
|
after the court pronounced the sentence or placed the person on |
|
|
community supervision, including deferred adjudication community |
|
|
supervision, for the offense for which the order of nondisclosure |
|
|
is requested, and during any applicable waiting period for the |
|
|
person under this subchapter following [after] completion of the |
|
|
person's sentence or community supervision, including deferred |
|
|
adjudication community supervision [required by this subchapter], |
|
|
the person is not convicted of or placed on deferred adjudication |
|
|
community supervision under Subchapter C, Chapter 42A, Code of |
|
|
Criminal Procedure, for any offense other than a traffic [an] |
|
|
offense that is [under the Transportation Code] punishable by fine |
|
|
only. |
|
|
(b) A person may not be granted an order of nondisclosure of |
|
|
criminal history record information under this subchapter and is |
|
|
not entitled to petition the court for an order of nondisclosure |
|
|
under this subchapter if: |
|
|
(1) the person requests the order of nondisclosure |
|
|
[was convicted or placed on deferred adjudication community
|
|
|
supervision] for, or the person has been previously convicted of or |
|
|
placed on [any other] deferred adjudication community supervision |
|
|
under Subchapter C, Chapter 42A, Code of Criminal Procedure, for: |
|
|
(A) an offense requiring registration as a sex |
|
|
offender under Chapter 62, Code of Criminal Procedure; |
|
|
(B) 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; |
|
|
(C) an offense under Section 19.02, 19.03, |
|
|
20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal |
|
|
Code; or |
|
|
(D) any other offense involving family violence, |
|
|
as defined by Section 71.004, Family Code; or |
|
|
(2) the court makes an affirmative finding that the |
|
|
offense for which the order of nondisclosure [of criminal history
|
|
|
record information] is requested involved family violence, as |
|
|
defined by Section 71.004, Family Code. |
|
|
SECTION 9. Section 411.0765(a), Government Code, is amended |
|
|
to read as follows: |
|
|
(a) A criminal justice agency may disclose criminal history |
|
|
record information that is the subject of an order of nondisclosure |
|
|
of criminal history record information under this subchapter only: |
|
|
(1) to other criminal justice agencies; |
|
|
(2) [,] for criminal justice or regulatory licensing |
|
|
purposes; |
|
|
(3) to [,] an agency or entity listed in Subsection |
|
|
(b); |
|
|
(4) to [, or] the person who is the subject of the |
|
|
order; or |
|
|
(5) for the purpose of complying with a requirement |
|
|
under federal law or if federal law requires the disclosure as a |
|
|
condition of receiving federal highway funds. |
|
|
SECTION 10. Article 42A.105, Code of Criminal Procedure, is |
|
|
amended to conform to Chapter 1279 (S.B. 1902), Acts of the 84th |
|
|
Legislature, Regular Session, 2015, by adding Subsection (f) to |
|
|
read as follows: |
|
|
(f) If a judge places on deferred adjudication community |
|
|
supervision a defendant charged with a misdemeanor other than a |
|
|
misdemeanor under Chapter 20, 21, 22, 25, 42, 43, 46, or 71, Penal |
|
|
Code, the judge shall make an affirmative finding of fact and file a |
|
|
statement of that affirmative finding with the papers in the case if |
|
|
the judge determines that it is not in the best interest of justice |
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that the defendant receive an automatic order of nondisclosure |
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under Section 411.072, Government Code. |
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SECTION 11. Section 32, Chapter 1279 (S.B. 1902), Acts of |
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the 84th Legislature, Regular Session, 2015, is repealed. |
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SECTION 12. To the extent of any conflict, this Act prevails |
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over another Act of the 85th Legislature, Regular Session, 2017, |
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relating to nonsubstantive additions to and corrections in enacted |
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codes. |
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SECTION 13. This Act takes effect September 1, 2017. |