H.B. No. 3481
AN ACT
relating to the expunction of records and files relating to a
person's arrest.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 55.01(a) and (b), Code of Criminal
Procedure, are 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) [of this section]; or
(B) convicted and subsequently:
(i) pardoned; or
(ii) otherwise granted relief on the basis
of actual innocence with respect to that offense; or
(2) the person has been released and the charge, if
any, has not resulted in a final conviction and is no longer
pending, provided that there was no court-ordered community
supervision under Article 42.12 for the offense and that [each of
the following conditions exist]:
(A) an indictment or information charging the
person with the commission of a felony or misdemeanor:
(i) was [has] not [been] presented against
the person for the [an] offense at any time before the date of the
petition for expunction, and more than 180 days have elapsed from
the date of the person's arrest for the offense; [arising out of the
transaction for which the person was arrested] or
(ii) regardless of whether any statute of
limitations exists for the offense and whether any limitations
period for the offense has expired, was[, if an indictment or
information charging the person with commission of a felony was
presented, the indictment or information has been] dismissed or
quashed and, if the offense was a felony, more than 180 days have
elapsed from the date the indictment or information was dismissed
or quashed [,] and [:
[(i) the limitations period expired before
the date on which a petition for expunction was filed under Article
55.02; or
[(ii)] the court finds that the indictment or
information was dismissed or quashed 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 because it
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 [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 Article 42.12 for any offense other than a Class C
misdemeanor; and
[(C) the person has not been convicted of a
felony in the five years preceding the date of the arrest].
(b) Except as provided by Subsection (c) [of this section],
a district court may expunge all records and files relating to the
arrest of a person who has been arrested for commission of a felony
or misdemeanor under the procedure established under Article 55.02
[of this code] if:
(1) the person is:
(A) [(1)] tried for the offense for which the
person was arrested;
(B) [(2)] convicted of the offense; and
(C) [(3)] acquitted by the court of criminal
appeals or, if the period for granting a petition for discretionary
review has expired, by a court of appeals; or
(2) an office of the attorney representing the state
authorized by law to prosecute the offense for which the person was
arrested recommends the expunction to the appropriate district
court before the person is tried for the offense, regardless of
whether an indictment or information has been presented against the
person in relation to the offense.
SECTION 2. Article 55.02, Code of Criminal Procedure, is
amended by adding Section 1a to read as follows:
Sec. 1a. (a) The trial court presiding over a case in which
a defendant is convicted and subsequently pardoned or otherwise
subsequently granted relief on the basis of actual innocence of the
offense of which the defendant was convicted, 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)(1)(B) not
later than the 30th day after the date the court receives notice of
the pardon or other grant of relief. The person shall provide to
the district court all of the information required in a petition
for expunction under Section 2(b).
(b) The attorney for the state shall prepare an expunction
order under this section for the court's signature.
(c) The court shall include in an expunction order under
this section a listing of each official, agency, or other entity of
this state or political subdivision of this state and each private
entity that there is reason to believe has any record or file that
is subject to the order. The court shall also provide in an
expunction order under this section that the Department of Public
Safety and the Texas Department of Criminal Justice shall:
(1) return all records and files that are subject to
the expunction order to the court; and
(2) delete from its public records all index
references to the records and files that are subject to the
expunction order.
(d) The court shall retain all records and files provided to
the court under Subsection (c) until the statute of limitations has
run for any civil case or proceeding relating to the wrongful
imprisonment of the person subject to the expunction order.
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)(2) [55.01(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 3(c), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(c) When the order of expunction is final, the clerk of the
court shall send a certified copy of the order to the Crime Records
Service of the Department of Public Safety and to each official or
agency or other governmental entity of this state or of any
political subdivision of this state named in [designated by the
person who is the subject of] the order. The certified copy of the
order must be sent by secure electronic mail, electronic
transmission, or facsimile transmission or otherwise by certified
mail, return receipt requested. In sending the order to a
governmental entity named in the order [designated by the person],
the clerk may elect to substitute hand delivery for certified mail
under this subsection, but the clerk must receive a receipt for that
hand-delivered order.
SECTION 5. Section 5(a), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(a) Except as provided by Subsections (f) and (g), on
receipt of the order, each official or agency or other governmental
entity named in the order shall:
(1) return all records and files that are subject to
the expunction order to the court or in cases other than those
described by Section 1a, if removal is impracticable, obliterate
all portions of the record or file that identify the person who is
the subject of the order and notify the court of its action; and
(2) delete from its public records all index
references to the records and files that are subject to the
expunction order.
SECTION 6. Article 55.01(a-1), Code of Criminal Procedure,
is repealed.
SECTION 7. This Act applies to an expunction of arrest
records and files for any criminal offense:
(1) that occurred before, on, or after the effective
date of this Act; or
(2) for which a pardon or other relief on the basis of
actual innocence was granted before, on, or after the effective
date of this Act.
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3481 was passed by the House on May 6,
2009, by the following vote: Yeas 143, Nays 0, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 3481 on May 29, 2009, by the following vote: Yeas 137, Nays 0,
2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 3481 was passed by the Senate, with
amendments, on May 28, 2009, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor