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3 | + | SENATE FLOOR VERSION - HB3316 SFLR Page 1 | |
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29 | + | SENATE FLOOR VERSION | |
30 | + | April 13, 2022 | |
31 | + | AS AMENDED | |
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33 | + | ENGROSSED HOUSE | |
3 | 34 | BILL NO. 3316 By: Miller, Talley, Echols, | |
4 | 35 | Fugate, Stark, Waldron, | |
5 | - | Goodwin | |
36 | + | Goodwin and Lepak of the | |
6 | 37 | House | |
7 | 38 | ||
8 | 39 | and | |
9 | 40 | ||
10 | 41 | Pugh and Rader of the | |
11 | 42 | Senate | |
12 | 43 | ||
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16 | - | ||
17 | - | ||
18 | - | An Act relating to expungements; amending 22 O.S. | |
19 | - | 2021, Sections 18 and 19, which relate to the | |
20 | - | expungement of criminal arrest rec ords; providing for | |
21 | - | the automatic sealing of records under certain | |
22 | - | circumstances; defining term; providing procedures | |
23 | - | and guidelines for the automatic expungement of | |
24 | - | certain eligible cases; requiring the submission of | |
25 | - | certain report to the Legislature; requiring the | |
26 | - | promulgation of rules; providing for the filing of | |
27 | - | expungement petitions and unsealing of records apart | |
28 | - | from the automatic expungement process; prohibiting | |
29 | - | any cause of action for failing to identi fy eligible | |
30 | - | cases; and providing an effective date. | |
47 | + | [ expungements - criminal arrest records - automatic | |
48 | + | sealing of records under certain circumstances - | |
49 | + | effective date ] | |
31 | 50 | ||
32 | 51 | ||
33 | 52 | ||
34 | - | SUBJECT: Expungements | |
35 | - | ||
36 | 53 | BE IT ENACTED BY THE PEOPLE OF TH E STATE OF OKLAHOMA: | |
37 | - | ||
38 | 54 | SECTION 1. AMENDATORY 22 O.S. 2021, Section 18, is | |
39 | 55 | amended to read as follows: | |
40 | - | ||
41 | 56 | Section 18. A. Persons authorized to file a motion for | |
42 | 57 | expungement, as provided herein, must be within o ne of the following | |
43 | 58 | categories: | |
44 | - | ||
45 | 59 | 1. The person has been acquitted; | |
46 | - | ENR. H. B. NO. 3316 Page 2 | |
47 | 60 | 2. The conviction was rev ersed with instructions to dismiss by | |
48 | 61 | an appellate court of comp etent jurisdiction, or an appellate court | |
49 | 62 | of competent jurisdiction reversed the conviction and the | |
50 | 63 | prosecuting agency subsequently dismissed the charge; | |
51 | 64 | ||
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52 | 91 | 3. The factual innocence of the perso n was established by the | |
53 | 92 | use of deoxyribonucleic acid (DNA) evid ence subsequent to | |
54 | 93 | conviction, including a person who has been released from prison at | |
55 | 94 | the time innocence was established; | |
56 | - | ||
57 | 95 | 4. The person has received a full pardon by the Governor for | |
58 | 96 | the crime for which the person was sentenced; | |
59 | - | ||
60 | 97 | 5. The person was arrest ed and no charges of any type, | |
61 | 98 | including charges for an offense different than that for which the | |
62 | 99 | person was originally arrested, are filed and the statute of | |
63 | 100 | limitations has expired or the pr osecuting agency has declined to | |
64 | 101 | file charges; | |
65 | - | ||
66 | 102 | 6. The person was under eighteen (18) years of age at the time | |
67 | 103 | the offense was committed and the person has receive d a full pardon | |
68 | 104 | for the offense; | |
69 | - | ||
70 | 105 | 7. The person was charged with one or more misdemeanor or | |
71 | 106 | felony crimes, all charges have been dismissed, the person has ne ver | |
72 | 107 | been convicted of a felony, no misdemeanor or felony charges are | |
73 | 108 | pending against the person and the statute of limitations for | |
74 | 109 | refiling the charge or charges has expired or the prosecuting agency | |
75 | 110 | confirms that the charge or charges will not be refiled; provided, | |
76 | 111 | however, this category shall not apply to charges that have been | |
77 | 112 | dismissed following the completion of a deferred judgment or delayed | |
78 | 113 | sentence; | |
79 | 114 | ||
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80 | 141 | 8. The person was charged with a mis demeanor, the charge was | |
81 | 142 | dismissed following the successful comp letion of a deferred judgment | |
82 | 143 | or delayed sentence, the person has never been convicted of a | |
83 | 144 | felony, no misdemeanor or felony charges are pending against the | |
84 | 145 | person and at least one (1) year ha s passed since the charge was | |
85 | 146 | dismissed; | |
86 | - | ||
87 | 147 | 9. The person was char ged with a nonviolent felony offense not | |
88 | 148 | listed in Section 571 of Title 57 of the Oklahoma Statutes , the | |
89 | 149 | charge was dismissed following the successful completion of a | |
90 | 150 | deferred judgment or dela yed sentence, the person has never been | |
91 | - | convicted of a felony, | |
151 | + | convicted of a felony, n o misdemeanor or felony charges are pending | |
92 | 152 | against the person and at least five (5) years have pas sed since the | |
93 | 153 | charge was dismissed; | |
94 | - | ||
95 | 154 | 10. The person was convicted of a misdemeanor offense, t he | |
96 | 155 | person was sentenced to a fine of less than Five Hundred One Dollars | |
97 | 156 | ($501.00) without a term of imprisonment or a suspended sentence, | |
98 | 157 | the fine has been paid or satisfied by time served in lieu of the | |
99 | 158 | fine, the person has not been convicted of a felony and no felony or | |
100 | 159 | misdemeanor charges are pending against the per son; | |
101 | - | ||
102 | 160 | 11. The person was convicted of a misdemeanor offense, the | |
103 | 161 | person was sentenced to a term of imprisonment, a suspended sentence | |
104 | 162 | or a fine in an amount greater than Five Hundred Dollars ( $500.00), | |
105 | 163 | the person has not been convicted of a felony, no felo ny or | |
106 | 164 | misdemeanor charges are pending against the person and at least five | |
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107 | 192 | (5) years have passed si nce the end of the last misdemeanor | |
108 | 193 | sentence; | |
109 | - | ||
110 | 194 | 12. The person was convicted of a nonviolent f elony offense not | |
111 | 195 | listed in Section 571 of Title 57 of the Oklah oma Statutes, the | |
112 | 196 | person has not been convicted of any other felony, the person has | |
113 | 197 | not been convicted of a separate misdemeanor in the last seven (7) | |
114 | 198 | years, no felony or misdemeanor charges a re pending against the | |
115 | 199 | person and at least five (5) years have p assed since the completion | |
116 | 200 | of the sentence for the felony conviction; | |
117 | - | ||
118 | 201 | 13. The person was convicted of not more than two felony | |
119 | 202 | offenses, none of which is a felony offense listed in Section 13 .1 | |
120 | 203 | of Title 21 of the Oklahoma Statutes or any offense that woul d | |
121 | 204 | require the person to register pursuant to the provisions of the Sex | |
122 | 205 | Offenders Registration Act, no felony or misdemeanor charges are | |
123 | 206 | pending against the person, and at least ten (10) years have passed | |
124 | 207 | since the completion of the sent ence for the felony conviction; | |
125 | - | ||
126 | 208 | 14. The person has been charged or arrested or is the subject | |
127 | 209 | of an arrest warrant for a crime that was committed by another | |
128 | 210 | person who has appropriated or used the person's name or other | |
129 | 211 | identification without the person's consent or authoriz ation; or | |
130 | - | ||
131 | 212 | 15. The person was convicted of a nonviolent felony offense not | |
132 | 213 | listed in Section 571 of Title 57 of the Oklahoma Statutes which was | |
133 | 214 | subsequently reclassified as a misdemeanor under Oklahoma law, the | |
134 | 215 | person is not currently serving a sentence fo r a crime in this state | |
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135 | 243 | or another state, at least thirty (30) days have passed since the | |
136 | - | completion or commutation of the sentence for the crime that was | |
244 | + | completion or commutation of the sentence for the crime that was | |
137 | 245 | reclassified as a misdemeanor, any re stitution ordered by the court | |
138 | 246 | to be paid by the person has been satisfied in full, and any | |
139 | 247 | treatment program ordered by the court has been successfully | |
140 | 248 | completed by the person, including any person who failed a treatment | |
141 | 249 | program which resulted in an accel erated or revoked sentence that | |
142 | 250 | has since been successfully comp leted by the person or the person | |
143 | 251 | can show successful completion of a treatment program at a later | |
144 | 252 | date. Persons seeking an expungement of records under the | |
145 | 253 | provisions of this paragraph may u tilize the expungement forms | |
146 | 254 | provided in Section 2 18a of this act title. | |
147 | - | ||
148 | 255 | B. For purposes of Section 18 et seq. of this title, | |
149 | 256 | "expungement" shall mean the sealin g of criminal records, as well as | |
150 | 257 | any public civil record, involving actions brought by and a gainst | |
151 | 258 | the State of Oklahoma arising from the same arrest, trans action or | |
152 | 259 | occurrence. | |
153 | - | ||
154 | 260 | C. Beginning three (3) years after the effective date of this | |
155 | 261 | act and subject to the availability of funds, individuals with clean | |
156 | 262 | slate eligible cases shall be eligible t o have their criminal | |
157 | 263 | records sealed automatically. For purposes of Section 18 et seq. of | |
158 | 264 | this title, "clean slate eligible case" shall mean a case wher e each | |
159 | 265 | charge within the case is pursuant to paragraph 1, 2, 3, 5, 6, 7, 8, | |
160 | 266 | 10, 11, 14 or 15 of subsection A of this section. | |
161 | 267 | ||
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162 | 294 | D. For purposes of seeking an expung ement under the provisions | |
163 | 295 | of paragraph 10, 11, 12 or 13 of subsection A of this section, | |
164 | 296 | offenses arising out of the same transaction or occurrence shal l be | |
165 | 297 | treated as one conviction and of fense. | |
166 | - | ||
167 | 298 | D. E. Records expunged pursuant to paragraphs 4, 8, 9, 10, 11, | |
168 | 299 | 12, 13, 14 and 15 of subsection A of this section shall be sealed to | |
169 | 300 | the public but not to la w enforcement agencies for law enforcement | |
170 | 301 | purposes. Records expunged pursuant to paragraph s 8, 9, 10, 11, 12 | |
171 | 302 | and 13 of subsection A of this section shall be admissible in any | |
172 | 303 | subsequent criminal prosecution to prove the existence of a prior | |
173 | 304 | conviction or prior deferred judgment without the necessity of a | |
174 | 305 | court order requesting the unsealing of the records. Record s | |
175 | 306 | expunged pursuant to paragraph 4, 6, 12 or 1 3 of subsection A of | |
176 | 307 | this section may also include the sealing of Pardon and Parole Board | |
177 | 308 | records related to an application for a pardon. Such records s hall | |
178 | 309 | be sealed to the public but not to the Pardon and Pa role Board. | |
179 | - | ||
180 | 310 | SECTION 2. AMENDATORY 22 O.S. 2021, Section 19, is | |
181 | - | amended to read as follows: ENR. H. B. NO. 3316 Page 5 | |
182 | - | ||
311 | + | amended to read as follows: | |
183 | 312 | Section 19. A. Any person qualified under Section 18 of this | |
184 | 313 | title may petition the district court of the district in which the | |
185 | 314 | arrest information pertaining to the person is located for the | |
186 | 315 | sealing of all or any part of the record, except basic | |
187 | 316 | identification information. | |
188 | 317 | ||
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189 | 344 | B. The process for the automatic expungement of a cle an slate | |
190 | 345 | eligible case as defined in subsecti on C of Section 18 o f this title | |
191 | 346 | is as follows: | |
192 | - | ||
193 | 347 | 1. On a monthly basis, the Oklahoma State Bureau of | |
194 | 348 | Investigation shall identify cases which are clean slate eligib le by | |
195 | 349 | conducting a search of the criminal history repository records of | |
196 | 350 | the Bureau; | |
197 | - | ||
198 | 351 | 2. The Bureau shall, on a monthly basis, provide a list of | |
199 | 352 | clean slate eligible cases to the prosecuting agency and the | |
200 | 353 | arresting agency; | |
201 | - | ||
202 | 354 | 3. The prosecuting agency, arresting agency, and the Bur eau | |
203 | 355 | may, no later than forty-five (45) days from the day on which the | |
204 | 356 | notice described in paragraph 2 of this subsection is transmitted, | |
205 | 357 | object to an automatic expungement and such objection shall be | |
206 | 358 | transmitted to all parties. An objection may be made for any of the | |
207 | 359 | following reasons: | |
208 | - | ||
209 | 360 | a. after reviewing the agency record, the agency believe s | |
210 | 361 | the case does not meet the definition of a c lean slate | |
211 | 362 | eligible case, | |
212 | - | ||
213 | 363 | b. the individual has not paid court-ordered restitution | |
214 | 364 | to the victim, or | |
215 | - | ||
216 | 365 | c. the agency has a reasonable belief, grounded in | |
217 | 366 | supporting facts, that an individual with a clean | |
218 | 367 | slate eligible case is continuing to engage in | |
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219 | 395 | criminal activity, whether charged or not charged, | |
220 | 396 | within or outside the state; | |
221 | - | ||
222 | 397 | 4. If an agency identified in paragraph 3 of thi s subsection | |
223 | 398 | objects for a reason described in paragraph 3 of this subsection | |
224 | 399 | within forty-five (45) days of the day on which the notice described | |
225 | 400 | in paragraph 2 of this subsection is transmitted, the record shall | |
226 | - | not be expunged. Once a year, the Bureau shall submit a report to | |
401 | + | not be expunged. Once a year, the Bureau shall submit a report to | |
227 | 402 | the Legislature with a list of all cases where a record was not | |
228 | 403 | expunged pursuant to this paragraph ; and | |
229 | - | ||
230 | 404 | 5. After forty-five (45) days pass from the day on which the | |
231 | 405 | notice described in paragraph 2 of this subsection is sent, the | |
232 | 406 | Bureau shall provide to the courts a list of all cases where | |
233 | 407 | responses from all parties were received and no parties objected. | |
234 | 408 | The court shall review this list and provide to all agencies that | |
235 | 409 | have criminal history records a signed expungement order for a ll | |
236 | 410 | cases approved. Upon receipt of a signed expungement order, each | |
237 | 411 | agency shall seal the relevant records. | |
238 | - | ||
239 | 412 | The Bureau and the Oklahoma Supreme Court may promulgate rules | |
240 | 413 | to govern the process for automatic expungemen t of records for a | |
241 | 414 | clean slate eligible case in accordance with this subsection. | |
242 | - | ||
243 | 415 | C. 1. Nothing in this sectio n precludes an individual from | |
244 | 416 | filing a petition for expunge ment of records that are eligible for | |
245 | 417 | automatic expungement under subsection C of Section 18 of this title | |
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246 | 445 | if an automatic expungement has not occurred pursuant to subsection | |
247 | 446 | B of this section. | |
248 | - | ||
249 | 447 | 2. An individual does not have a cause o f action for damages a s | |
250 | 448 | a result of the failure of the Bureau to identify a case as eligible | |
251 | 449 | for automatic expungement. | |
252 | - | ||
253 | 450 | D. An automatic expungement granted under subsection B of this | |
254 | 451 | section does not preclude a n individual from requesting the | |
255 | 452 | unsealing of records in accordan ce with subsection O of this | |
256 | 453 | section. | |
257 | - | ||
258 | 454 | E. Upon the filing of a petition or entering of a court order | |
259 | 455 | as prescribed in subsection A of this section, the court shall set a | |
260 | 456 | date for a hearing and shal l provide thirty (30 ) days of notice of | |
261 | 457 | the hearing to the prosecuting agency, the arresting agency, the | |
262 | 458 | Oklahoma State Bureau of Investigation, and any other person or | |
263 | 459 | agency whom the court has r eason to believe may have rele vant | |
264 | 460 | information related to th e sealing of such re cord. | |
265 | - | ||
266 | 461 | C. F. Upon a finding that the ha rm to privacy of the person in | |
267 | 462 | interest or dangers of unwarranted adverse consequences outweigh the | |
268 | 463 | public interest in retaining the reco rds, the court may order such | |
269 | 464 | records, or any part thereof e xcept basic identifi cation | |
270 | 465 | information, to be sealed. If t he court finds that neither sealing | |
271 | - | of the records nor maintaining of the records unsealed by the agency | |
466 | + | of the records nor maintaining of the records unsealed by the agency | |
272 | 467 | would serve the ends of justice, the court may enter an appropriate | |
273 | 468 | order limiting access to such records. | |
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274 | 495 | ||
275 | 496 | Any order entered under this subsection shal l specify those | |
276 | 497 | agencies to which such order shall apply. Any order entered | |
277 | 498 | pursuant to this subsection may be appealed by the petitione r, the | |
278 | 499 | prosecuting agency, the arresting agency, or the Okla homa State | |
279 | 500 | Bureau of Investigation to the Oklahoma Supreme Court in accordance | |
280 | 501 | with the rules of the Oklahoma Supreme Court. In all such appeals, | |
281 | 502 | the Oklahoma State Bu reau of Investigation is a n ecessary party and | |
282 | 503 | must be given notice of the appellate pro ceedings. | |
283 | - | ||
284 | 504 | D. G. Upon the entry of an order to seal the rec ords, or any | |
285 | 505 | part thereof, or upon an automatic expungement described in | |
286 | 506 | subsection B of this section, the subject official actions shall be | |
287 | 507 | deemed never to have occurred, and the person in interest and all | |
288 | 508 | criminal justice agencies may properly reply, upo n any inquiry in | |
289 | 509 | the matter, that no such action ever occurred and that no such | |
290 | 510 | record exists with resp ect to such person. | |
291 | - | ||
292 | 511 | E. H. Inspection of the records included in the order may | |
293 | 512 | thereafter be permitted by the court only upon petition by the | |
294 | 513 | person in interest who is the subject of such records, the Attorney | |
295 | 514 | General, or by the prosecuting agency and only to those persons and | |
296 | 515 | for such purposes named in such petition. | |
297 | - | ||
298 | 516 | F. I. Employers, educational institutions, state and local | |
299 | 517 | government agencies, official s, and employees shall not, in any | |
300 | 518 | application or interview or otherwise, require an applicant to | |
301 | 519 | disclose any information contained in s ealed records. An applicant | |
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302 | 547 | need not, in answer to any question concerning arrest and criminal | |
303 | 548 | records, provide inform ation that has been sealed, including any | |
304 | 549 | reference to or information concerning such sealed information and | |
305 | 550 | may state that no such actio n has ever occurred. Such an | |
306 | 551 | application may not be denied solely because of the refusal of the | |
307 | 552 | applicant to disclose arrest and criminal records information that | |
308 | 553 | has been sealed. | |
309 | - | ||
310 | 554 | G. J. All arrest and criminal records informat ion existing | |
311 | 555 | prior to the effective date of this section, except basic | |
312 | 556 | identification information, is also subject to sealing in accordance | |
313 | 557 | with subsection C F of this section. | |
314 | - | ||
315 | 558 | H. K. Nothing in this section shall be construed to authorize | |
316 | - | the physical destruction of any criminal justice records. ENR. H. B. NO. 3316 Page 8 | |
317 | - | ||
559 | + | the physical destruction of any criminal justice records. | |
318 | 560 | I. L. For the purposes of this section, sealed materials which | |
319 | 561 | are recorded in the same document as unse aled material may be | |
320 | 562 | recorded in a separate document, and sealed, then obliterated in the | |
321 | 563 | original document. | |
322 | - | ||
323 | 564 | J. M. For the purposes of this section, district court in dex | |
324 | 565 | reference of sealed material shall be destroyed, removed or | |
325 | 566 | obliterated. | |
326 | - | ||
327 | 567 | K. N. Any record ordered to be sealed pursuant to this section, | |
328 | 568 | if not unsealed within ten (10) years of the expungement order, may | |
329 | 569 | be obliterated or destroyed at the end of the ten-year period. | |
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571 | + | SENATE FLOOR VERSION - HB3316 SFLR Page 12 | |
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330 | 596 | ||
331 | 597 | L. O. Subsequent to records being sealed as provided herein, | |
332 | 598 | the prosecuting agency, the arresting agency, the Oklahoma State | |
333 | 599 | Bureau of Investigation, or other interested person or agency may | |
334 | 600 | petition the court for an order unsealing said records. Upon filing | |
335 | 601 | of a petition the court shall set a date for hearing, which hearin g | |
336 | 602 | may be closed at the discretion of the court, and shall provide | |
337 | 603 | thirty (30) days of notice to all intereste d parties. If, upon | |
338 | 604 | hearing, the court determines there h as been a change of conditions | |
339 | 605 | or that there is a compelling reason to unseal the records , the | |
340 | 606 | court may order all or a portion of the records unsealed. | |
341 | - | ||
342 | 607 | M. P. Nothing herein shall prohibit the intr oduction of | |
343 | 608 | evidence regarding actions sealed pursuant to the provisions of this | |
344 | 609 | section at any hearing or trial for purposes of impeaching the | |
345 | 610 | credibility of a witness or as evidence of character testimony | |
346 | 611 | pursuant to Section 2608 of Title 12 of the Oklah oma Statutes. | |
347 | - | ||
348 | 612 | N. Q. If a person qualifies for an expungem ent under the | |
349 | 613 | provisions of paragraph 3 of subsection A of Section 18 of this | |
350 | 614 | title and said petition for expungement is granted by the court, the | |
351 | 615 | court shall order the reimbursement of all filing f ees and court | |
352 | 616 | costs incurred by the petitioner as a result of filing the | |
353 | 617 | expungement request. | |
354 | - | ||
355 | 618 | SECTION 3. This act shall become eff ective November 1, 2022. | |
356 | - | ENR. H. B. NO. 3316 Page 9 | |
357 | - | Passed the House of R epresentatives the 9th day of March, 2022. | |
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361 | - | ||
362 | - | Presiding Officer of the House | |
363 | - | of Representatives | |
364 | - | ||
365 | - | ||
366 | - | Passed the Senate the 27th day of April, 2022. | |
367 | - | ||
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369 | - | ||
370 | - | ||
371 | - | Presiding Officer of the Senate | |
372 | - | ||
373 | - | ||
374 | - | ||
375 | - | OFFICE OF THE GOVERNOR | |
376 | - | Received by the Office of the Governor this ____________________ | |
377 | - | day of ___________________, 20_______, at _______ o'clock _______ M. | |
378 | - | By: _________________________________ | |
379 | - | Approved by the Governor of the State of Oklahoma this _ ________ | |
380 | - | day of ___________________, 20_______, at _______ o'clock _______ M. | |
381 | - | ||
382 | - | ||
383 | - | _________________________________ | |
384 | - | Governor of the State of Oklahoma | |
385 | - | ||
386 | - | OFFICE OF THE SECRETARY OF STATE | |
387 | - | Received by the Office of the Secretary of State this __________ | |
388 | - | day of ___________________, 20_______, at _______ o'clock _______ M. | |
389 | - | By: _________________________________ | |
390 | - | ||
619 | + | COMMITTEE REPORT BY: COMMITTEE ON APPROPRIATIONS | |
620 | + | April 13, 2022 - DO PASS AS AMENDED |