By: Veasey (Senate Sponsor - West) H.B. No. 351
(In the Senate - Received from the House May 13, 2011;
May 13, 2011, read first time and referred to Committee on Criminal
Justice; May 24, 2011, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 6, Nays 0;
May 24, 2011, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 351 By: Ellis
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. Article 55.01, Code of Criminal Procedure, is
amended by amending Subsections (a), (a-1), (b), and (c) and adding
Subsection (a-2) 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 for a reason other than that
described by Subparagraph (ii); or
(ii) pardoned or otherwise granted relief
on the basis of actual innocence with respect to that offense, if
the applicable pardon or court order clearly indicates on its face
that the pardon or order was granted or rendered on the basis of the
person's actual innocence; 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 the offense, unless the offense is 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:
(a) at least 180 days have elapsed
from the date of arrest if the arrest was for an offense punishable
as a Class C misdemeanor;
(b) at least one year has elapsed from
the date of arrest if the arrest was for an offense punishable as a
Class B or A misdemeanor;
(c) at least three years have elapsed
from the date of arrest if the arrest was for an offense punishable
as a felony; or
(d) the attorney representing the
state certifies that the applicable arrest records and files are
not needed for use in any criminal investigation or prosecution,
including an investigation or prosecution of another person; 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[:
[(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 the indictment
or information [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].
(a-1) Notwithstanding any other provision of this article,
a person may not expunge records and files relating to an arrest
that occurs pursuant to a warrant issued under Section 21, Article
42.12 [Subsection (a)(2)(C), a person's conviction of a felony in
the five years preceding the date of the arrest does not affect the
person's entitlement to expunction for purposes of an ex parte
petition filed on behalf of the person by the director of the
Department of Public Safety under Section 2(e), Article 55.02].
(a-2) Notwithstanding any other provision of this article,
a person who intentionally or knowingly absconds from the
jurisdiction after being released under Chapter 17 following an
arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or
(c) or Subsection (a)(2)(B) for an expunction of the records and
files relating to that 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 granted relief or
pardoned 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)(ii) 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:
(1) prepare an expunction order under this section for
the court's signature; and
(2) notify the Texas Department of Criminal Justice if
the person is in the custody of the department.
(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:
(1) the Texas Department of Criminal Justice shall
send to the court the documents delivered to the department under
Section 8(a), Article 42.09; and
(2) the Department of Public Safety and the Texas
Department of Criminal Justice shall delete or redact, as
appropriate, from their public records all index references to the
records and files that are subject to the expunction order.
(d) The court shall retain all documents sent to the court
under Subsection (c)(1) 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)(1)(B)(i) or 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 4, Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4. (a) If the state establishes that the person who is
the subject of an expunction order is still subject to conviction
for an offense arising out of the transaction for which the person
was arrested because the statute of limitations has not run and
there is reasonable cause to believe that the state may proceed
against the person for the offense, the court may provide in its
expunction order that the law enforcement agency and the
prosecuting attorney responsible for investigating the offense may
retain any records and files that are necessary to the
investigation.
(a-1) The court shall provide in its expunction order that
the applicable law enforcement agency and prosecuting attorney may
retain the arrest records and files of any person who becomes
entitled to an expunction of those records and files based on the
expiration of a period described by Article 55.01(a)(2)(A)(i)(a),
(b), or (c), but without the certification of the prosecuting
attorney as described by Article 55.01(a)(2)(A)(i)(d).
(a-2) In the case of a person who is the subject of an
expunction order on the basis of an acquittal, the court may provide
in the expunction order that the law enforcement agency and the
prosecuting attorney retain records and files if:
(1) the records and files are necessary to conduct a
subsequent investigation and prosecution of a person other than the
person who is the subject of the expunction order; or
(2) the state establishes that the records and files
are necessary for use in:
(A) another criminal case, including a
prosecution, motion to adjudicate or revoke community supervision,
parole revocation hearing, mandatory supervision revocation
hearing, punishment hearing, or bond hearing; or
(B) a civil case, including a civil suit or suit
for possession of or access to a child.
(b) Unless the person who is the subject of the expunction
order is again arrested for or charged with an offense arising out
of the transaction for which the person was arrested or unless the
court provides for the retention of records and files under
Subsection (a-1) or (a-2) [(a) of this section], the provisions of
Articles 55.03 and 55.04 [of this code] apply to files and records
retained under this section.
SECTION 6. 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 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 September 1, 2011.
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