By: West S.B. No. 462
(In the Senate - Filed January 31, 2011; February 14, 2011,
read first time and referred to Committee on Criminal Justice;
April 18, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 2; April 18, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 462 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. Subsections (a) and (a-1), Article 55.01, 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 pardoned; 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 arising out of the transaction for which the
person was arrested, 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:
(a) at least two years have elapsed
from the date of arrest; or
(b) 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].
SECTION 2. 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 may 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 the two-year period described by Article
55.01(a)(2)(A)(i)(a) but without the certification of the
prosecuting attorney as described by Article 55.01(a)(2)(A)(i)(b).
(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-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 3. This Act applies to an expunction of arrest
records and files for any criminal offense that 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.
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