By: West S.B. No. 130
(In the Senate - Filed November 10, 2014; January 27, 2015,
read first time and referred to Committee on Criminal Justice;
April 7, 2015, reported favorably by the following vote: Yeas 7,
Nays 0; April 7, 2015, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to the eligibility of criminal defendants for an order of
nondisclosure; authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 411.081, Government Code, is amended by
adding Subsection (d-1) and amending Subsections (d), (e), (f),
(f-1), and (h) to read as follows:
(d) Notwithstanding any other provision of this subchapter,
if a person is placed on deferred adjudication community
supervision under Section 5, Article 42.12, Code of Criminal
Procedure, subsequently receives a discharge and dismissal under
Section 5(c), Article 42.12, and satisfies the requirements of
Subsection (e), the person may petition the court that placed the
defendant on deferred adjudication for an order of nondisclosure
under this subsection. Except as provided by Subsection (e), a
person may petition the court for an order of nondisclosure
regardless of whether the person has been previously placed on
deferred adjudication community supervision for another offense.
After notice to the state, an opportunity for a hearing, and a
determination that the person is entitled to file the petition and
issuance of 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 offense giving rise to the deferred adjudication. A
criminal justice agency may disclose criminal history record
information that is the subject of the order 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 that placed the person on deferred adjudication for an order
of nondisclosure only on or after:
(1) the discharge and dismissal, if the offense for
which the person was placed on deferred adjudication was a
misdemeanor other than a misdemeanor described by Subdivision (2);
(2) the second anniversary of the discharge and
dismissal, if the offense for which the person was placed on
deferred adjudication was a misdemeanor under Chapter 20, 21, 22,
25, 42, or 46, Penal Code; or
(3) the fifth anniversary of the discharge and
dismissal, if the offense for which the person was placed on
deferred adjudication was a felony.
(d-1)(1) This subsection applies only to a person who:
(A) on conviction is placed on community
supervision under Article 42.12, Code of Criminal Procedure, and
with respect to whom the conviction is subsequently set aside by the
court under Section 20(a) of that article; and
(B) is not convicted of an offense for which the
person would be ineligible for deferred adjudication community
supervision under Section 5(d), Article 42.12, Code of Criminal
Procedure.
(2) Notwithstanding any other provision of this
subchapter, if a person to whom this subsection applies satisfies
the requirements of Subsection (e), the person may petition the
court that placed the person on community supervision for an order
of nondisclosure. After notice to the state, an opportunity for a
hearing, and a determination that the person is entitled to file the
petition and that issuance of 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 offense giving rise to the
community supervision. A criminal justice agency may disclose
criminal history record information that is the subject of the
order only to other criminal justice agencies for criminal justice
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 that placed the person on community supervision for an order
of nondisclosure only after:
(A) the conviction is set aside, if the offense
for which the person was placed on community supervision was a
misdemeanor; or
(B) the fifth anniversary of the date the
conviction is set aside, if the offense for which the person was
placed on community supervision was a felony.
(e) A person is entitled to petition the court under
Subsection (d) or (d-1) only if during the period of the community
supervision, including deferred adjudication community
supervision, for which the order of nondisclosure is requested and
during the applicable period described by Subsection (d)(1), (2),
or (3) or by Subsection (d-1)(2)(A) or (B), as appropriate, the
person is not convicted of or placed on deferred adjudication
community supervision under Section 5, Article 42.12, Code of
Criminal Procedure, for any offense other than an offense under the
Transportation Code punishable by fine only. A person is not
entitled to petition the court under Subsection (d) or (d-1) if the
person was placed on community supervision, including [the]
deferred adjudication community supervision, for, or has been
previously convicted of or placed on any other deferred
adjudication for:
(1) an offense requiring registration as a sex
offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Section 20.04, Penal Code,
regardless of whether the offense is a reportable conviction or
adjudication for purposes of Chapter 62, Code of Criminal
Procedure;
(3) an offense under Section 19.02, 19.03, 22.04,
22.041, 25.07, 25.072, or 42.072, Penal Code; or
(4) any other offense involving family violence, as
defined by Section 71.004, Family Code.
(f) For purposes of Subsections [Subsection] (d) and (e), 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) [(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. 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 2. Subsection (i), Section 411.081, 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 Subsection (d) or (d-1) 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 mental retardation authority, or a
community center providing services to persons with mental illness
or 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 3. Subsection (a), Section 411.0851, 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(d) or (d-1).
SECTION 4. 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].
(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(d) or (d-1).
(b) A person who is the subject of information that is
excepted from the requirements of Section 552.021 under this
section may deny the occurrence of the criminal proceeding [arrest
and prosecution] to which the information relates and the exception
of the information under this section, unless the information is
being used against the person in a subsequent criminal proceeding.
SECTION 5. Subsection (a), Section 552.1425, 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(d) or (d-1).
SECTION 6. Subsection (e), Section 53.021, 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 7. The change in law made by Subsection (d-1),
Section 411.081, Government Code, as added by this Act, applies to a
person whose conviction is set aside under Subsection (a), Section
20, Article 42.12, Code of Criminal Procedure, on or after the
effective date of this Act, regardless of when the person committed
the offense for which the person was convicted.
SECTION 8. This Act takes effect September 1, 2015.
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