82R1309 KEL-F
By: Veasey H.B. No. 351
A BILL TO BE ENTITLED
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), (b), and (c), 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
and there was no court-ordered community supervision under Article
42.12 for any offense except for a Class C misdemeanor, provided
that [each of the following conditions exist]:
(A) regardless of whether any statute of
limitations exists for the offense and whether any limitations
period for the offense has expired, an indictment or information
charging the person with the commission of a felony or misdemeanor
offense arising out of the transaction for which the person was
arrested:
(i) has not been presented against the
person at any time following the arrest, and at least 180 days have
elapsed from the date of the arrest; or
(ii) [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 at any time following the arrest, was[, the
indictment or information has been] dismissed or quashed, and:
(a) at least 180 days have elapsed
from the date the indictment or information was dismissed or
quashed; and
(b) [(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 person
completed a pretrial intervention program authorized under Section
76.011, Government Code, 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 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.
(c) A court may not order the expunction of records and
files relating to an arrest for an offense for which a person is
subsequently acquitted, whether by the trial court, a court of
appeals, or the court of criminal appeals, if the offense for which
the person was acquitted arose out of a criminal episode, as defined
by Section 3.01, Penal Code, and the person was convicted of or
remains subject to prosecution for at least one other offense
occurring during the criminal episode.
SECTION 2. Article 55.02, Code of Criminal Procedure, is
amended by amending Section 1 and adding Section 1a to read as
follows:
Sec. 1. At the request of the defendant and after notice to
the state, the trial court presiding over the case in which the
defendant was acquitted, 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)(A) [article 55.01(a)(1)(a)]
not later than the 30th day after the date of the acquittal. Upon
acquittal, the trial court shall advise the defendant of the right
to expunction. The defendant shall provide to the district court
all of the information required in a petition for expunction under
Section 2(b). The attorney for the defendant in the case in which
the defendant was acquitted, if the defendant was represented by
counsel, or the attorney for the state, if the defendant was not
represented by counsel, shall prepare the order for the court's
signature.
Sec. 1a. (a) The trial court presiding over a case in which
a defendant is convicted and subsequently pardoned or otherwise
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 to the court all records and files that are
subject to the expunction order; 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 returned 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, 2011.