82R9884 KEL-D
By: Kolkhorst H.B. No. 2318
A BILL TO BE ENTITLED
AN ACT
relating to the right to an expunction of records and files relating
to a person's arrest.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 55.01(a), 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 pardoned; or
(2) each of the following conditions exist:
(A) an indictment, [or] information, or
complaint charging the person with the commission of a felony or
misdemeanor arising out of the transaction for which the person was
arrested:
(i) has not been presented against the
person and:
(a) for an arrest based on a felony,
the limitations period expired before the date on which a petition
for expunction was filed under Article 55.02 or, for an arrest based
on a misdemeanor, at least 180 days have elapsed from the date of
the arrest; or
(b) in response to the petition for
expunction, the court finds by a preponderance of the evidence that
the indictment, information, or complaint has not been presented
against the person because of mistake, false information, or other
similar reason indicating absence of probable cause to believe the
person committed the offense; or
(ii) has been [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 against the person, but was subsequently [the
indictment or information has been] dismissed or quashed, and:
(a) for an arrest based on a felony,
[(i)] the limitations period expired before the date on which a
petition for expunction was filed under Article 55.02 or, for an
arrest based on a misdemeanor, at least 180 days have elapsed from
the date of the arrest; or
(b) in response to the petition for
expunction, [(ii)] the court finds by a preponderance of the
evidence that the indictment, [or] information, or complaint was
dismissed or quashed because the person successfully completed a
pretrial intervention program authorized under Section 76.011,
Government Code, because the person received a discharge and
dismissal with respect to the offense under Section 20(a), Article
42.12, [or] 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 the indictment,
information, or complaint [it] was void;
(B) the person has been released and:
(i) the charge, if any, has not resulted in
a final conviction and is no longer pending; and
(ii) there was no court-ordered [court
ordered] community supervision under Article 42.12 for any offense
other than for an offense punishable as a Class C misdemeanor or an
offense with respect to which the person received a discharge and
dismissal under Section 20(a), Article 42.12; and
(C) the person has not been convicted of a felony
in the five years preceding the date of the arrest.
SECTION 2. Section 20(a), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(a) At any time after the defendant has satisfactorily
completed one-third of the original community supervision period or
two years of community supervision, whichever is less, the period
of community supervision may be reduced or terminated by the
judge. On completion of one-half of the original community
supervision period or two years of community supervision, whichever
is more, the judge shall review the defendant's record and consider
whether to reduce or terminate the period of community supervision,
unless the defendant is delinquent in paying required restitution,
fines, costs, or fees that the defendant has the ability to pay or
the defendant has not completed court-ordered counseling or
treatment. Before conducting the review, the judge shall notify
the attorney representing the state and the defendant. If the judge
determines that the defendant has failed to satisfactorily fulfill
the conditions of community supervision, the judge shall advise the
defendant in writing of the requirements for satisfactorily
fulfilling those conditions. Upon the satisfactory fulfillment of
the conditions of community supervision, and the expiration of the
period of community supervision, the judge, by order duly entered,
shall amend or modify the original sentence imposed, if necessary,
to conform to the community supervision period and shall discharge
the defendant. If the judge discharges the defendant under this
section, the judge may set aside the verdict or permit the defendant
to withdraw the defendant's plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant. The
defendant[, who] shall thereafter be released from all penalties
and disabilities resulting from the offense or crime of which the
defendant has been convicted or to which the defendant has pleaded
guilty, except that, unless the defendant obtains an expunction of
the underlying arrest under Chapter 55:
(1) proof of the conviction or plea of guilty shall be
made known to the judge should the defendant again be convicted of
any criminal offense; and
(2) if the defendant is an applicant for a license or
is a licensee under Chapter 42, Human Resources Code, the Health and
Human Services Commission may consider the fact that the defendant
previously has received community supervision under this article in
issuing, renewing, denying, or revoking a license under that
chapter.
SECTION 3. The change in law made by this Act applies to a
person seeking expunction of records and files relating to an
arrest regardless of whether the arrest occurred before, on, or
after the effective date of this Act.
SECTION 4. 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, 2011.