Texas 2009 - 81st Regular

Texas House Bill HB293 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R729 PEP-D
2	2	By: Dutton H.B. No. 293
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the automatic expunction of criminal records.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Article 55.01(a), Code of Criminal Procedure, is
10	10	amended to read as follows:
11	11	(a) A person who has been placed under a custodial or
12	12	noncustodial arrest for commission of either a felony or
13	13	misdemeanor is entitled to have all records and files relating to
14	14	the arrest expunged if:
15	15	(1) the person is tried for the offense for which the
16	16	person was arrested and is:
17	17	(A) acquitted by the trial court, except as
18	18	provided by Subsection (c) [of this section]; or
19	19	(B) convicted and subsequently pardoned; or
20	20	(2) either [each] of the following conditions exists
21	21	[exist]:
22	22	(A) an indictment, complaint, or information
23	23	charging the person with commission of an offense [a felony] has not
24	24	been presented against the person for an offense arising out of the
25	25	transaction for which the person was arrested before the second
26	26	anniversary of the date of the arrest; or
27	27	(B) [,] if an indictment, complaint, or
28	28	information charging the person with commission of an offense [a
29	29	felony] was presented, the indictment, complaint, or information
30	30	has been dismissed or quashed [, and:
31	31	[(i) the limitations period expired before
32	32	the date on which a petition for expunction was filed under Article
33	33	55.02; or
34	34	[(ii) the court finds that the indictment
35	35	or information was dismissed or quashed because the presentment had
36	36	been made because of mistake, false information, or other similar
37	37	reason indicating absence of probable cause at the time of the
38	38	dismissal to believe the person committed the offense or because it
39	39	was void;
40	40	[(B) the person has been released and the charge,
41	41	if any, has not resulted in a final conviction and is no longer
42	42	pending and there was no court ordered community supervision under
43	43	Article 42.12 for any offense other than a Class C misdemeanor; and
44	44	[(C) the person has not been convicted of a
45	45	felony in the five years preceding the date of the arrest].
46	46	SECTION 2. Section 1, Article 55.02, Code of Criminal
47	47	Procedure, is amended to read as follows:
48	48	Sec. 1. (a) The [At the request of the defendant and after
49	49	notice to the state, the] trial court [presiding over the case in
50	50	which the defendant was acquitted, if the trial court is a district
51	51	court, or a district court in the county in which the trial court is
52	52	located] shall enter an order of expunction for a person entitled to
53	53	expunction because:
54	54	(1) the person was acquitted;
55	55	(2) the person was pardoned; or
56	56	(3) the offense was dismissed [under Article
57	57	55.01(a)(1)(A) not later than the 30th day after the date of the
58	58	acquittal. Upon acquittal, the trial court shall advise the
59	59	defendant of the right to expunction. The defendant shall provide
60	60	to the district court all of the information required in a petition
61	61	for expunction under Section 2(b). The attorney for the defendant
62	62	in the case in which the defendant was acquitted, if the defendant
63	63	was represented by counsel, or the attorney for the state, if the
64	64	defendant was not represented by counsel, shall prepare the order
65	65	for the court's signature].
66	66	(b) The attorney representing the state whose office would
67	67	have prosecuted the offense shall bring a motion for expunction for
68	68	a person who was arrested but against whom an indictment,
69	69	complaint, or information is not filed before the second
70	70	anniversary of the date of arrest.
71	71	(c) The court shall enter an order of expunction under this
72	72	section not later than the 30th day after the date of acquittal,
73	73	pardon, dismissal, or filing of the motion by the attorney
74	74	representing the state. The court shall include in the order a
75	75	listing of each official, agency, or other entity of this state or
76	76	political subdivision of this state and each private entity that
77	77	there is reason to believe has any record or file that is subject to
78	78	the order.
79	79	SECTION 3. Section 2a, Article 55.02, Code of Criminal
80	80	Procedure, is amended by adding Subsection (e) to read as follows:
81	81	(e) The director of the Department of Public Safety or the
82	82	director's authorized representative may file on behalf of a person
83	83	under this section the application described by Subsection (a).
84	84	The application must be verified and must include all of the
85	85	information otherwise required of an application under this
86	86	section, including the information described by Subsections (c)(1)
87	87	and (3). The director of the Department of Public Safety or the
88	88	director's authorized representative shall forward a copy of the
89	89	application to the district court for the county in which the
90	90	person resides and shall request the court to enter an order
91	91	directing expunction based on an entitlement to expunction under
92	92	Article 55.01(d). On receipt of a request under this subsection,
93	93	the court shall, without holding a hearing on the matter, enter a
94	94	final order directing expunction.
95	95	SECTION 4. Sections 3(a), (c), and (d), Article 55.02, Code
96	96	of Criminal Procedure, are amended to read as follows:
97	97	(a) In an order of expunction issued under this article, the
98	98	court shall require any state agency that sent information
99	99	concerning the arrest to a central federal depository to request
100	100	the depository to return all records and files subject to the order
101	101	of expunction. A [The] person who is the subject of an [the]
102	102	expunction order under Section 2a, or an agency protesting the
103	103	expunction, may appeal the court's decision in the same manner as in
104	104	other civil cases.
105	105	(c) When the order of expunction is final, the clerk of the
106	106	court shall send a certified copy of the order to the Crime Records
107	107	Service of the Department of Public Safety and to each official or
108	108	agency or other governmental entity of this state or of any
109	109	political subdivision of this state named in [designated by the
110	110	person who is the subject of] the order. The certified copy of the
111	111	order must be sent by secure electronic mail, electronic
112	112	transmission, or facsimile transmission or otherwise by certified
113	113	mail, return receipt requested. In sending the order to a
114	114	governmental entity named in the order [designated by the person],
115	115	the clerk may elect to substitute hand delivery for certified mail
116	116	under this subsection, but the clerk must receive a receipt for that
117	117	hand-delivered order.
118	118	(d) Any returned receipts received by the clerk from
119	119	[notices of the hearing and] copies of the order shall be maintained
120	120	in the file on the proceedings under this chapter.
121	121	SECTION 5. Section 4, Article 55.02, Code of Criminal
122	122	Procedure, is amended to read as follows:
123	123	Sec. 4. (a) If the state establishes that the person who is
124	124	the subject of an expunction order is still subject to conviction
125	125	for an offense arising out of the transaction for which the person
126	126	was arrested because the statute of limitations has not run and
127	127	there is reasonable cause to believe that the state may proceed
128	128	against the person for the offense, the court may provide in its
129	129	order that the law enforcement agency and the prosecuting attorney
130	130	responsible for investigating the offense may retain any records
131	131	and files that are necessary to the investigation.
132	132	(b) In the case of a person who is the subject of an
133	133	expunction order on the basis of an acquittal, the court may provide
134	134	in the expunction order that the law enforcement agency and the
135	135	prosecuting attorney retain records and files if:
136	136	(1) the records and files are necessary to conduct a
137	137	subsequent investigation and prosecution of a person other than the
138	138	person who is the subject of the expunction order; or
139	139	(2) the state establishes that the records and files
140	140	are necessary for use in:
141	141	(A) another criminal case, including a
142	142	prosecution, motion to adjudicate or revoke community supervision,
143	143	parole revocation hearing, mandatory supervision revocation
144	144	hearing, punishment hearing, or bond hearing; or
145	145	(B) a civil case, including a civil suit or suit
146	146	for possession of or access to a child.
147	147	(c) [(b)] Unless the person who is the subject of the
148	148	expunction order is again arrested for or charged with an offense
149	149	arising out of the transaction for which the person was arrested or
150	150	unless the court provides for the retention of records and files
151	151	under Subsection (b), [(a) of this section, the provisions of]
152	152	Articles 55.03 and 55.04 [of this code] apply to files and records
153	153	retained under this section.
154	154	SECTION 6. Section 5(c), Article 55.02, Code of Criminal
155	155	Procedure, is amended to read as follows:
156	156	(c) Except in the case of a person who is the subject of an
157	157	expunction order based on an entitlement under Article 55.01(d) and
158	158	except as provided by Subsection (g), if an order of expunction is
159	159	issued under this article, the court records concerning expunction
160	160	proceedings are not open for inspection by anyone except the person
161	161	who is the subject of the order unless the order permits retention
162	162	of a record under Section 4(a) [4 of this article] and the person is
163	163	again arrested for or charged with an offense arising out of the
164	164	transaction for which the person was arrested or unless the court
165	165	provides for the retention of records and files under Section 4(b)
166	166	[4(a) of this article]. The clerk of the court issuing the order
167	167	shall obliterate all public references to the proceeding and
168	168	maintain the files or other records in an area not open to
169	169	inspection.
170	170	SECTION 7. The following provisions of the Code of Criminal
171	171	Procedure are repealed:
172	172	(1) Subsection (a-1), Article 55.01;
173	173	(2) Section 2, Article 55.02;
174	174	(3) Article 55.05; and
175	175	(4) Article 102.006.
176	176	SECTION 8. (a) This Act applies only to the expunction of
177	177	arrest records related to:
178	178	(1) a criminal offense for which an acquittal occurred
179	179	on or after the effective date of this Act;
180	180	(2) a charge for an offense that was dismissed on or
181	181	after the effective date of this Act; or
182	182	(3) an arrest made on or after the effective date of
183	183	this Act.
184	184	(b) Expunction for an acquittal, dismissal, or arrest that
185	185	occurred before the effective date of this Act is governed by the
186	186	law in effect at that time, and the former law is continued in
187	187	effect for that purpose.
188	188	SECTION 9. This Act takes effect September 1, 2009.