By: Alonzo, Collier (Senate Sponsor - RodrÃguez) H.B. No. 3579
(In the Senate - Received from the House May 18, 2015;
May 20, 2015, read first time and referred to Committee on Criminal
Justice; May 24, 2015, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 6, Nays 0;
May 24, 2015, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 3579 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to certain criminal history record information;
authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 55.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 55.01. RIGHT TO EXPUNCTION. (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 offense for which the person was arrested [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); 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, for the offense for which the expunction is sought has been
dismissed or has not resulted in a final conviction for that
offense, the charge [and] is no longer pending, and there was no
court-ordered community supervision under Article 42.12 for that
[the] offense[,] unless the offense is a Class C misdemeanor,
provided that:
(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 the [a misdemeanor]
offense [based on the person's arrest or charging the person with
the commission of any felony offense arising out of the same
transaction for which the person was arrested]:
(i) has not been presented against the
person at any time following the person's arrest, and:
(a) at least 180 days have elapsed
from the date of arrest if the offense [arrest] for which the
expunction was sought was [for an offense] punishable as a Class C
misdemeanor and if there was no felony charge arising out of the
same transaction for which the person was arrested;
(b) at least one year has elapsed from
the date of arrest if the offense [arrest] for which the expunction
was sought was [for an offense] punishable as a Class B or A
misdemeanor and if there was no felony charge arising out of the
same transaction for which the person was arrested;
(c) at least three years have elapsed
from the date of arrest if the offense [arrest] for which the
expunction was sought was [for an offense] punishable as a felony or
if there was a felony charge arising out of the same transaction for
which the person was arrested; 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) if presented at any time following the
person's arrest, was dismissed or quashed, and 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, 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 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.
(a-1) Notwithstanding any other provision of this article,
a person may not expunge offense records and files if the applicable
[relating to an] arrest occurred [that occurs] pursuant to a
warrant issued under Section 21, Article 42.12.
(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 and to the proceedings conducted
under Chapter 17.
(b) Except as provided by Subsection (c), a district court
may expunge all records and files relating to the offense with
respect to [arrest of] a person who has been arrested for commission
of a felony or misdemeanor under the procedure established under
Article 55.02 if:
(1) the person is:
(A) tried for the offense [for which the person
was arrested];
(B) convicted of the offense; and
(C) 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.
(d) A person is entitled to have expunged any information
that identifies the person, including the person's name, address,
date of birth, driver's license number, and social security number,
contained in records and files relating to another person's [the]
arrest or to any ensuing criminal proceedings based on that arrest
[of another person expunged] if:
(1) the information identifying the person asserting
the entitlement to expunction was falsely given by the person
arrested as the arrested person's identifying information without
the consent of the person asserting the entitlement; and
(2) the only reason for the information identifying
the person asserting the entitlement being contained in the
[arrest] offense records and files of the person arrested is that
the information was falsely given by the person arrested as the
arrested person's identifying information.
SECTION 2. Section 2a(b), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(b) The application must be verified, include authenticated
fingerprint records of the applicant, and include the following or
an explanation for why one or more of the following is not included:
(1) the applicant's full name, sex, race, date of
birth, driver's license number, social security number, and address
at the time the person who falsely identified himself or herself as
the applicant was arrested;
(2) the following information regarding the arrest:
(A) the date of arrest;
(B) the offense charged against the person
arrested;
(C) the name of the county or municipality in
which the arrest occurred; and
(D) the name of the arresting agency; and
(3) a statement that:
(A) the applicant is not the person arrested and
for whom the applicable [arrest] records and files were created;
and
(B) the applicant did not give the person
arrested consent to falsely identify himself or herself as the
applicant.
SECTION 3. Section 3(a), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(a) In an order of expunction issued under this article, the
court shall require any state agency that sent information
concerning the offense [arrest] to a central federal depository to
request the depository to return all records and files subject to
the order of expunction. The person who is the subject of the
expunction order or an agency protesting the expunction may appeal
the court's decision in the same manner as in other civil cases.
SECTION 4. Section 4(a-1), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(a-1) The court shall provide in its expunction order that
the applicable law enforcement agency and prosecuting attorney may
retain the offense [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).
SECTION 5. Article 55.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 55.03. EFFECT OF EXPUNCTION. When the order of
expunction is final:
(1) the release, maintenance, dissemination, or use of
the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision (3) [of this
article], the person arrested may deny:
(A) the occurrence of the arrest and any ensuing
criminal proceedings based on the arrest; and
(B) the existence of the expunction order; and
(3) the person arrested or any other person, when
questioned under oath in a criminal proceeding about an offense
[arrest] for which the records have been expunged, may state only
that the matter in question has been expunged.
SECTION 6. Section 1, Article 55.04, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. A person who, [acquires knowledge of an arrest]
while an officer or employee of the state or of any agency or other
entity of the state or any political subdivision of the state,
acquires knowledge of an arrest or of criminal proceedings based on
that arrest and who knows of an order expunging the records and
files relating to the applicable offense [that arrest] commits an
offense if he knowingly releases, disseminates, or otherwise uses
the records or files.
SECTION 7. Section 109.005(a), Business & Commerce Code, as
added by Chapter 1200 (S.B. No. 1289), Acts of the 83rd
Legislature, Regular Session, 2013, is amended to read as follows:
(a) A business entity may not publish any criminal record
information in the business entity's possession with respect to
which the business entity has knowledge or has received notice
that:
(1) an order of expunction has been issued under
Article 55.02, Code of Criminal Procedure; or
(2) an order of nondisclosure has been issued under
Section 411.081 [411.081(d)], Government Code.
SECTION 8. Section 103.0211, Government Code, is amended to
read as follows:
Sec. 103.0211. ADDITIONAL FEES AND COSTS IN CRIMINAL OR
CIVIL CASES: GOVERNMENT CODE. An accused or defendant, or a party
to a civil suit, as applicable, shall pay the following fees and
costs under the Government Code if ordered by the court or otherwise
required:
(1) a court reporter fee when testimony is taken:
(A) in a criminal court in Dallas County (Sec.
25.0593, Government Code) . . . $3;
(B) in a county criminal court of appeals in
Dallas County (Sec. 25.0594, Government Code) . . . $3;
(C) in a county court at law in McLennan County
(Sec. 25.1572, Government Code) . . . $3; and
(D) in a county criminal court in Tarrant County
(Sec. 25.2223, Government Code) . . . $3;
(2) a court reporter service fee if the courts have
official court reporters (Sec. 51.601, Government Code) . . . $15
or, in specified counties, $30;
(3) a speedy trial rights waiver motion filing fee in
El Paso County (Sec. 54.745, Government Code) . . . $100;
(4) the costs of a criminal magistrate if the court
determines that the nonprevailing party is able to defray the
costs:
(A) in Bexar County (Sec. 54.913, Government
Code) . . . magistrate's fees;
(B) in Dallas County (Sec. 54.313, Government
Code) . . . magistrate's fees;
(C) in Lubbock County (Sec. 54.883, Government
Code) . . . magistrate's fees;
(D) in Tarrant County (Sec. 54.663, Government
Code) . . . magistrate's fees; and
(E) in Travis County (Sec. 54.983, Government
Code) . . . magistrate's fees;
(5) an administrative fee for participation in certain
community supervision programs (Sec. 76.015, Government Code)
. . . not less than $25 and not more than $60 per month; [and]
(6) fee paid on filing a petition for an order of
nondisclosure of criminal history record information in certain
cases (Sec. 411.081(f-1) [411.081], Government Code) . . . $28.
SECTION 9. Section 411.081, Government Code, is amended by
adding Subsections (d-1), (e-1), (h-1), and (h-2) and amending
Subsections (f), (f-1), and (h) to read as follows:
(d-1) Notwithstanding any other provision of this chapter
and subject to Subsection (e-1), a person who is convicted of and
has satisfied the judgment for or who has received a dismissal after
deferral of disposition for a fine-only misdemeanor, other than an
offense under the Transportation Code or an offense under a
municipal ordinance or county order, may petition the court that
convicted or granted a dismissal to the person for an order of
nondisclosure under this subsection. After notice to the state,
the court shall hold a hearing on whether the person is entitled to
file the petition and whether issuance of the order is in the best
interest of justice. In determining whether granting the order is
in the best interest of justice, the court may consider the person's
criminal history record information among any other factors the
court considers relevant. If the court determines that granting
the order is in the best interest of justice, the court shall issue
an order prohibiting criminal justice agencies from disclosing to
the public criminal history record information related to the
fine-only misdemeanor offense that is the subject of the petition.
As a condition of granting the petition under this subsection for a
person convicted of the offense, a court may require the defendant
to perform community service, pay a fee, or both perform the
community service and pay the fee as if the defendant had been
placed on probation pending deferred disposition under Article
45.051, Code of Criminal Procedure. A criminal justice agency may
disclose criminal history record information that is the subject of
an order of nondisclosure under this subsection only to other
criminal justice agencies for criminal justice or regulatory
licensing purposes, an agency or entity listed in Subsection (i),
or the person who is the subject of the order. A person may petition
the court for an order of nondisclosure under this subsection only
on or after the first anniversary of the conviction or dismissal, as
applicable.
(e-1) A person is not entitled to petition the court under
Subsection (d-1) if the person has been previously convicted of or
placed on deferred adjudication for any offense other than an
offense under the Transportation Code punishable by fine only,
regardless of whether that offense is subject to an order of
nondisclosure of criminal history record information granted under
this section or any other law.
(f) For purposes of Subsections [Subsection] (d), (e), and
(e-1), a person is considered to have been placed on deferred
adjudication community supervision if, regardless of the statutory
authorization:
(1) the person entered a plea of guilty or nolo
contendere;
(2) the judge deferred further proceedings without
entering an adjudication of guilt and placed the person under the
supervision of the court or an officer under the supervision of the
court; and
(3) at the end of the period of supervision, the judge
dismissed the proceedings and discharged the person.
(f-1) A person who petitions the court for an order of
nondisclosure under Subsection (d) or (d-1) may file the petition
in person, electronically, or by mail. The petition must be
accompanied by payment of a $28 fee to the clerk of the court in
addition to any other fee that generally applies to the filing of a
civil petition. The Office of Court Administration of the Texas
Judicial System shall prescribe a form for the filing of a petition
electronically or by mail. The form must provide for the petition
to be accompanied by the required fees and any other supporting
material determined necessary by the office of court
administration, including evidence that the person is entitled to
file the petition. The office of court administration shall make
available on its Internet website the electronic application and
printable application form. Each county or district clerk's office
that maintains an Internet website shall include on that website a
link to the electronic application and printable application form
available on the office of court administration's Internet website.
On receipt of a petition under this subsection, the court shall
provide notice to the state and an opportunity for a hearing on
whether the person is entitled to file the petition and issuance of
the order is in the best interest of justice. The court shall hold a
hearing before determining whether to issue an order of
nondisclosure, except that a hearing is not required if:
(1) the state does not request a hearing on the issue
before the 45th day after the date on which the state receives
notice under this subsection; and
(2) the court determines that:
(A) the defendant is entitled to file the
petition; and
(B) the order is in the best interest of justice.
(h) The clerk of a court that collects a fee paid under
Subsection (f-1) for a petition filed under Subsection (d) [(d)]
shall remit the fee to the comptroller not later than the last day
of the month following the end of the calendar quarter in which the
fee is collected, and the comptroller shall deposit the fee in the
general revenue fund.
(h-1) The clerk of a court that collects a fee paid under
Subsection (f-1) for a petition filed under Subsection (d-1) shall
deposit the fee to the credit of the general fund of the
municipality or county, as applicable.
(h-2) The Department of Public Safety shall submit a report
to the legislature not later than December 1 of each even-numbered
year that includes information on:
(1) the number of petitions for nondisclosure and
orders of nondisclosure received by the department in each of the
previous two years;
(2) the actions taken by the department with respect
to the petitions and orders received;
(3) the costs incurred by the department in taking
those actions; and
(4) the number of persons who are the subject of an
order of nondisclosure and who became the subject of criminal
charges for an offense committed after the order was issued.
SECTION 10. Section 411.081(i), Government Code, as amended
by Chapters 42 (S.B. 966), 266 (H.B. 729), and 583 (S.B. 869), Acts
of the 83rd Legislature, Regular Session, 2013, is reenacted and
amended to read as follows:
(i) A criminal justice agency may disclose criminal history
record information that is the subject of an order of nondisclosure
under this section [Subsection (d)] to the following noncriminal
justice agencies or entities only:
(1) the State Board for Educator Certification;
(2) a school district, charter school, private school,
regional education service center, commercial transportation
company, or education shared service arrangement;
(3) the Texas Medical Board;
(4) the Texas School for the Blind and Visually
Impaired;
(5) the Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name
change under Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Juvenile Justice Department;
(11) the Department of Assistive and Rehabilitative
Services;
(12) the Department of State Health Services, a local
mental health service, a local intellectual and developmental
disability [mental retardation] authority, or a community center
providing services to persons with mental illness or intellectual
or developmental disabilities [retardation];
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Texas Board of Nursing;
(16) a safe house providing shelter to children in
harmful situations;
(17) a public or nonprofit hospital or hospital
district, or a facility as defined by Section 250.001, Health and
Safety Code;
(18) the securities commissioner, the banking
commissioner, the savings and mortgage lending commissioner, the
consumer credit commissioner, or the credit union commissioner;
(19) the Texas State Board of Public Accountancy;
(20) the Texas Department of Licensing and Regulation;
(21) the Health and Human Services Commission;
(22) the Department of Aging and Disability Services;
(23) the Texas Education Agency;
(24) the Judicial Branch Certification Commission;
(25) a county clerk's office in relation to a
proceeding for the appointment of a guardian under Title 3, Estates
Code [Chapter XIII, Texas Probate Code];
(26) the Department of Information Resources but only
regarding an employee, applicant for employment, contractor,
subcontractor, intern, or volunteer who provides network security
services under Chapter 2059 to:
(A) the Department of Information Resources; or
(B) a contractor or subcontractor of the
Department of Information Resources;
(27) the Texas Department of Insurance;
(28) the Teacher Retirement System of Texas; and
(29) [(30)] the Texas State Board of Pharmacy.
SECTION 11. Section 411.0851(a), Government Code, is
amended to read as follows:
(a) A private entity that compiles and disseminates for
compensation criminal history record information shall destroy and
may not disseminate any information in the possession of the entity
with respect to which the entity has received notice that:
(1) an order of expunction has been issued under
Article 55.02, Code of Criminal Procedure; or
(2) an order of nondisclosure has been issued under
Section 411.081 [411.081(d)].
SECTION 12. The heading to Section 552.142, Government
Code, is amended to read as follows:
Sec. 552.142. EXCEPTION: CONFIDENTIALITY OF RECORDS OF
CERTAIN CRIMINAL HISTORY INFORMATION [DEFERRED ADJUDICATIONS].
SECTION 13. Section 552.142(a), Government Code, is amended
to read as follows:
(a) Information is excepted from the requirements of
Section 552.021 if an order of nondisclosure with respect to the
information has been issued under Section 411.081 [411.081(d)].
SECTION 14. Section 552.1425(a), Government Code, is
amended to read as follows:
(a) A private entity that compiles and disseminates for
compensation criminal history record information may not compile or
disseminate information with respect to which the entity has
received notice that:
(1) an order of expunction has been issued under
Article 55.02, Code of Criminal Procedure; or
(2) an order of nondisclosure has been issued under
Section 411.081 [411.081(d)].
SECTION 15. Section 53.021(e), Occupations Code, is amended
to read as follows:
(e) Subsection (c) does not apply if the person is an
applicant for or the holder of a license that authorizes the person
to provide:
(1) law enforcement or public health, education, or
safety services; or
(2) financial services in an industry regulated by a
person listed in Section 411.081(i)(18) [411.081(i)(19)],
Government Code.
SECTION 16. Section 15, Article 42.12, Code of Criminal
Procedure, is amended by adding Subsections (l), (m), and (n) to
read as follows:
(l) On written motion of a defendant after completion of
two-thirds of the original community supervision period for a state
jail felony with respect to which written consent was obtained
under Section 12.44(c), Penal Code, the judge may review the
defendant's record and consider whether to amend the record of
conviction to reflect a conviction for a Class A misdemeanor in lieu
of a state jail felony. On disposition of the community supervision
in a manner provided by Section 20, the judge, on discharge of the
defendant, may amend the record of conviction to reflect a
conviction for a Class A misdemeanor in lieu of a state jail felony,
subject to Subsection (m), if:
(1) the offense for which the defendant was placed on
community supervision was not an offense:
(A) under Section 30.02, Section 30.04, Section
39.04(a)(2), Section 49.045, or Title 5, Penal Code;
(B) under Article 62.102; or
(C) involving family violence, as defined by
Section 71.004, Family Code;
(2) the defendant has fulfilled to the judge's
satisfaction all the conditions of community supervision,
including the payment of all required restitution, and is not
delinquent on the payment of any fines, costs, and fees that the
defendant has the ability to pay;
(3) the defendant files with the written motion a
statement that:
(A) contains a summary of the defendant's
performance during community supervision, including compliance
with the conditions of community supervision; and
(B) asserts that the defendant meets the
conditions for an amendment of the record of conviction under this
subsection;
(4) the defendant provides a copy of the motion and
statement to the attorney representing the state; and
(5) at the hearing held on the motion, the judge finds
that an amendment of the record of conviction is in the best
interest of justice.
(m) A judge who amends a record of conviction under
Subsection (l) may not modify the name of the state jail felony
offense for which the judge placed the defendant on community
supervision. A defendant whose record of conviction is amended
under Subsection (l) is not considered to have been convicted of a
felony with respect to the modified offense.
(n) A record of conviction that is amended under Subsection
(l) supersedes and takes the place of the record of conviction as it
existed on the original date of conviction. A judge retains
jurisdiction for the purposes of Subsection (l) only until the
expiration of the term of community supervision.
SECTION 17. Section 12.44, Penal Code, is amended by adding
Subsection (c) to read as follows:
(c) With the written consent of the prosecuting attorney
prior to sentencing, the court may amend the record of conviction to
reflect a conviction for a Class A misdemeanor in lieu of a state
jail felony as provided by Section 15(l), Article 42.12, Code of
Criminal Procedure.
SECTION 18. This Act applies to an expunction of records and
files relating to any criminal offense that occurred before, on, or
after the effective date of this Act.
SECTION 19. This Act applies to a petition for an order of
nondisclosure that is filed on or after the effective date of this
Act, regardless of whether the misdemeanor that is the subject of
the petition occurred before, on, or after the effective date of
this Act.
SECTION 20. The changes in law made by this Act in amending
Section 15, Article 42.12, Code of Criminal Procedure, and adding
Section 12.44(c), Penal Code, apply only to a defendant who is
placed on community supervision for an offense committed on or
after the effective date of this Act. A defendant who is placed on
community supervision for an offense committed before the effective
date of this Act is governed by the law in effect on the date the
offense was committed, and the former law is continued in effect for
that purpose. For purposes of this section, an offense was
committed before the effective date of this Act if any element of
the offense occurred before that date.
SECTION 21. This Act takes effect September 1, 2015.
* * * * *