Texas 2009 - 81st Regular

Texas House Bill HB3481 Compare Versions

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1	1	H.B. No. 3481
2	2
3	3
4	4	AN ACT
5	5	relating to the expunction of records and files relating to a
6	6	person's arrest.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Articles 55.01(a) and (b), Code of Criminal
9	9	Procedure, are amended to read as follows:
10	10	(a) A person who has been placed under a custodial or
11	11	noncustodial arrest for commission of either a felony or
12	12	misdemeanor is entitled to have all records and files relating to
13	13	the arrest expunged if:
14	14	(1) the person is tried for the offense for which the
15	15	person was arrested and is:
16	16	(A) acquitted by the trial court, except as
17	17	provided by Subsection (c) [of this section]; or
18	18	(B) convicted and subsequently:
19	19	(i) pardoned; or
20	20	(ii) otherwise granted relief on the basis
21	21	of actual innocence with respect to that offense; or
22	22	(2) the person has been released and the charge, if
23	23	any, has not resulted in a final conviction and is no longer
24	24	pending, provided that there was no court-ordered community
25	25	supervision under Article 42.12 for the offense and that [each of
26	26	the following conditions exist]:
27	27	(A) an indictment or information charging the
28	28	person with the commission of a felony or misdemeanor:
29	29	(i) was [has] not [been] presented against
30	30	the person for the [an] offense at any time before the date of the
31	31	petition for expunction, and more than 180 days have elapsed from
32	32	the date of the person's arrest for the offense; [arising out of the
33	33	transaction for which the person was arrested] or
34	34	(ii) regardless of whether any statute of
35	35	limitations exists for the offense and whether any limitations
36	36	period for the offense has expired, was[, if an indictment or
37	37	information charging the person with commission of a felony was
38	38	presented, the indictment or information has been] dismissed or
39	39	quashed and, if the offense was a felony, more than 180 days have
40	40	elapsed from the date the indictment or information was dismissed
41	41	or quashed [,] and [:
42	42	[(i) the limitations period expired before
43	43	the date on which a petition for expunction was filed under Article
44	44	55.02; or
45	45	[(ii)] the court finds that the indictment or
46	46	information was dismissed or quashed because the presentment had
47	47	been made because of mistake, false information, or other similar
48	48	reason indicating absence of probable cause at the time of the
49	49	dismissal to believe the person committed the offense or because it
50	50	was void; or
51	51	(B) prosecution of the person for the offense for
52	52	which the person was arrested is no longer possible because the
53	53	limitations period has expired [the person has been released and
54	54	the charge, if any, has not resulted in a final conviction and is no
55	55	longer pending and there was no court ordered community supervision
56	56	under Article 42.12 for any offense other than a Class C
57	57	misdemeanor; and
58	58	[(C) the person has not been convicted of a
59	59	felony in the five years preceding the date of the arrest].
60	60	(b) Except as provided by Subsection (c) [of this section],
61	61	a district court may expunge all records and files relating to the
62	62	arrest of a person who has been arrested for commission of a felony
63	63	or misdemeanor under the procedure established under Article 55.02
64	64	[of this code] if:
65	65	(1) the person is:
66	66	(A) [(1)] tried for the offense for which the
67	67	person was arrested;
68	68	(B) [(2)] convicted of the offense; and
69	69	(C) [(3)] acquitted by the court of criminal
70	70	appeals or, if the period for granting a petition for discretionary
71	71	review has expired, by a court of appeals; or
72	72	(2) an office of the attorney representing the state
73	73	authorized by law to prosecute the offense for which the person was
74	74	arrested recommends the expunction to the appropriate district
75	75	court before the person is tried for the offense, regardless of
76	76	whether an indictment or information has been presented against the
77	77	person in relation to the offense.
78	78	SECTION 2. Article 55.02, Code of Criminal Procedure, is
79	79	amended by adding Section 1a to read as follows:
80	80	Sec. 1a. (a) The trial court presiding over a case in which
81	81	a defendant is convicted and subsequently pardoned or otherwise
82	82	subsequently granted relief on the basis of actual innocence of the
83	83	offense of which the defendant was convicted, if the trial court is
84	84	a district court, or a district court in the county in which the
85	85	trial court is located, shall enter an order of expunction for a
86	86	person entitled to expunction under Article 55.01(a)(1)(B) not
87	87	later than the 30th day after the date the court receives notice of
88	88	the pardon or other grant of relief. The person shall provide to
89	89	the district court all of the information required in a petition
90	90	for expunction under Section 2(b).
91	91	(b) The attorney for the state shall prepare an expunction
92	92	order under this section for the court's signature.
93	93	(c) The court shall include in an expunction order under
94	94	this section a listing of each official, agency, or other entity of
95	95	this state or political subdivision of this state and each private
96	96	entity that there is reason to believe has any record or file that
97	97	is subject to the order. The court shall also provide in an
98	98	expunction order under this section that the Department of Public
99	99	Safety and the Texas Department of Criminal Justice shall:
100	100	(1) return all records and files that are subject to
101	101	the expunction order to the court; and
102	102	(2) delete from its public records all index
103	103	references to the records and files that are subject to the
104	104	expunction order.
105	105	(d) The court shall retain all records and files provided to
106	106	the court under Subsection (c) until the statute of limitations has
107	107	run for any civil case or proceeding relating to the wrongful
108	108	imprisonment of the person subject to the expunction order.
109	109	SECTION 3. Section 2(a), Article 55.02, Code of Criminal
110	110	Procedure, is amended to read as follows:
111	111	(a) A person who is entitled to expunction of records and
112	112	files under Article 55.01(a)(2) [55.01(a)] or a person who is
113	113	eligible for expunction of records and files under Article 55.01(b)
114	114	may file an ex parte petition for expunction in a district court for
115	115	the county in which:
116	116	(1) the petitioner was arrested; or
117	117	(2) the offense was alleged to have occurred.
118	118	SECTION 4. Section 3(c), Article 55.02, Code of Criminal
119	119	Procedure, is amended to read as follows:
120	120	(c) When the order of expunction is final, the clerk of the
121	121	court shall send a certified copy of the order to the Crime Records
122	122	Service of the Department of Public Safety and to each official or
123	123	agency or other governmental entity of this state or of any
124	124	political subdivision of this state named in [designated by the
125	125	person who is the subject of] the order. The certified copy of the
126	126	order must be sent by secure electronic mail, electronic
127	127	transmission, or facsimile transmission or otherwise by certified
128	128	mail, return receipt requested. In sending the order to a
129	129	governmental entity named in the order [designated by the person],
130	130	the clerk may elect to substitute hand delivery for certified mail
131	131	under this subsection, but the clerk must receive a receipt for that
132	132	hand-delivered order.
133	133	SECTION 5. Section 5(a), Article 55.02, Code of Criminal
134	134	Procedure, is amended to read as follows:
135	135	(a) Except as provided by Subsections (f) and (g), on
136	136	receipt of the order, each official or agency or other governmental
137	137	entity named in the order shall:
138	138	(1) return all records and files that are subject to
139	139	the expunction order to the court or in cases other than those
140	140	described by Section 1a, if removal is impracticable, obliterate
141	141	all portions of the record or file that identify the person who is
142	142	the subject of the order and notify the court of its action; and
143	143	(2) delete from its public records all index
144	144	references to the records and files that are subject to the
145	145	expunction order.
146	146	SECTION 6. Article 55.01(a-1), Code of Criminal Procedure,
147	147	is repealed.
148	148	SECTION 7. This Act applies to an expunction of arrest
149	149	records and files for any criminal offense:
150	150	(1) that occurred before, on, or after the effective
151	151	date of this Act; or
152	152	(2) for which a pardon or other relief on the basis of
153	153	actual innocence was granted before, on, or after the effective
154	154	date of this Act.
155	155	SECTION 8. This Act takes effect immediately if it receives
156	156	a vote of two-thirds of all the members elected to each house, as
157	157	provided by Section 39, Article III, Texas Constitution. If this
158	158	Act does not receive the vote necessary for immediate effect, this
159	159	Act takes effect September 1, 2009.
160	160	______________________________ ______________________________
161	161	President of the Senate Speaker of the House
162	162	I certify that H.B. No. 3481 was passed by the House on May 6,
163	163	2009, by the following vote: Yeas 143, Nays 0, 2 present, not
164	164	voting; and that the House concurred in Senate amendments to H.B.
165	165	No. 3481 on May 29, 2009, by the following vote: Yeas 137, Nays 0,
166	166	2 present, not voting.
167	167	______________________________
168	168	Chief Clerk of the House
169	169	I certify that H.B. No. 3481 was passed by the Senate, with
170	170	amendments, on May 28, 2009, by the following vote: Yeas 31, Nays
171	171	0.
172	172	______________________________
173	173	Secretary of the Senate
174	174	APPROVED: __________________
175	175	Date
176	176	__________________
177	177	Governor