By: West S.B. No. 1916
(In the Senate - Filed March 12, 2009; March 24, 2009, read
first time and referred to Committee on Criminal Justice;
April 6, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; April 6, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1916 By: Ellis
A BILL TO BE ENTITLED
AN ACT
relating to the automatic expunction of arrest records and files
after an individual receives a pardon or a grant of certain other
relief with respect to the offense for which the individual was
arrested.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Article 55.01, Code of Criminal
Procedure, is 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) each of the following conditions exist:
(A) an indictment or information charging the
person with commission of a felony has not been presented against
the person for an offense arising out of the transaction for which
the person was arrested or, 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:
(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;
(B) 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.
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. Subsection (a), Section 2, 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. Subsection (c), Section 3, 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. Subsection (a), Section 5, 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. This Act applies to the expunction of arrest
records related to a criminal offense 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 7. This Act takes effect September 1, 2009.
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