Texas 2015 - 84th Regular

Texas Senate Bill SB1874 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R8785 JSC-F
2	2	By: Whitmire S.B. No. 1874
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to accessing criminal history record information and other
8	8	records of involvement in the criminal justice system; authorizing
9	9	fees; authorizing a civil penalty; creating criminal offenses.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. (a) This Act may be cited as the Modern
12	12	Electronic Records in Texas Act or the MERIT Act.
13	13	(b) The legislature finds that:
14	14	(1) Texas has an extensive program for sharing
15	15	information concerning criminal activity among thousands of
16	16	agencies;
17	17	(2) some criminal history record information is
18	18	confidential and unavailable to the public;
19	19	(3) public access to records that identify a person's
20	20	involvement in criminal activity is vital to public safety, but
21	21	some privacy is also vital to public safety;
22	22	(4) criminal records effectively punish people by
23	23	limiting opportunities for employment, housing, education, credit,
24	24	and other essential items;
25	25	(5) recidivism is more likely, and rehabilitation less
26	26	likely, when criminal history record information is published; and
27	27	(6) the state, and not private data miners, must
28	28	determine what punishment or publication is appropriate.
29	29	Consequently this chapter states the legislature's judgment as to
30	30	what degree of privacy will best promote public safety in the
31	31	digital age.
32	32	(c) This Act is intended to:
33	33	(1) define what criminal history record information
34	34	may be accessed by agencies and the public;
35	35	(2) remove financial incentive for data miners to
36	36	publish nonconviction records on the Internet; and
37	37	(3) establish a prompt and efficient means of
38	38	correcting, sealing, and expunging certain criminal history record
39	39	information.
40	40	SECTION 2. The heading to Chapter 60, Code of Criminal
41	41	Procedure, is amended to read as follows:
42	42	CHAPTER 60. CRIMINAL HISTORY RECORD COLLECTION [SYSTEM]
43	43	SECTION 3. Title 1, Code of Criminal Procedure, is amended
44	44	by adding Chapter 60A to read as follows:
45	45	CHAPTER 60A. CRIMINAL HISTORY RECORD ACCESS
46	46	SUBCHAPTER A. GENERAL PROVISIONS
47	47	Art. 60A.01. DEFINITIONS. (a) In this chapter:
48	48	(1) "Criminal history record information" means
49	49	information collected about a person by a criminal justice agency
50	50	that consists of identifiable descriptions and notations of
51	51	arrests, citations, detentions, indictments, informations, and
52	52	other formal criminal charges and their dispositions. The term
53	53	does not include:
54	54	(A) identification information, including
55	55	fingerprint records, to the extent that the identification
56	56	information does not indicate involvement of the person in the
57	57	criminal justice system; or
58	58	(B) driving record information maintained by the
59	59	department under Subchapter C, Chapter 521, Transportation Code.
60	60	(2) "Data miner" means any private person who collects
61	61	government information for the purpose of reselling that
62	62	information to others.
63	63	(3) "Deferred adjudication" means:
64	64	(A) deferred adjudication community supervision
65	65	under Section 5, Article 42.12;
66	66	(B) placement on probation for a deferred
67	67	disposition under Article 45.051; or
68	68	(C) any other disposition in which:
69	69	(i) the defendant enters a plea of guilty or
70	70	nolo contendere;
71	71	(ii) the judge places the person under the
72	72	supervision of the court or an officer under the supervision of the
73	73	court;
74	74	(iii) at the end of the period of
75	75	supervision or probation the judge does not enter a judgment of
76	76	conviction or vacates a judgment of conviction previously entered;
77	77	and
78	78	(iv) at the end of the period of supervision
79	79	or probation the judge dismisses the proceedings and discharges the
80	80	defendant.
81	81	(4) "Department" means the Department of Public
82	82	Safety.
83	83	(5) "Expunge" and "expunction" mean the physical
84	84	destruction or alteration of records so that no possibility exists
85	85	that any person could use the records to identify a particular
86	86	person as having been accused of involvement in criminal activity.
87	87	(6) "Nonconviction records" means criminal history
88	88	record information that does not include a disposition by
89	89	conviction or deferred adjudication, including records of arrest,
90	90	citation, detention, charges, and court proceedings where no
91	91	disposition by conviction or deferred adjudication occurs.
92	92	(7) "Office of court administration" means the Office
93	93	of Court Administration of the Texas Judicial System.
94	94	(8) "Record" means any writing or photograph,
95	95	including:
96	96	(A) any letters, words, or numbers or their
97	97	equivalent, set down by handwriting, typewriting, printing,
98	98	photostating, photographing, magnetic impulse, mechanical or
99	99	electronic recording, or other form of data compilation; and
100	100	(B) still photographs, x-ray films, videotapes,
101	101	and motion pictures set down by any method listed in Paragraph (A).
102	102	(9) "Seal" means a procedure by which state and local
103	103	agencies may retain criminal history record information but are
104	104	required to withhold that information from public access.
105	105	(10) "Sensitive service agency" means a governmental
106	106	or nongovernmental agency, other than a criminal justice agency,
107	107	that has a compelling reason to access sealed records.
108	108	(b) A term that is used in this chapter but is not defined by
109	109	Subsection (a) has the meaning assigned by Chapter 60.
110	110	Art. 60A.02. WAIVER OF RIGHTS CONCERNING CRIMINAL RECORDS.
111	111	An explicit or implicit waiver of any right to seal, expunge, or
112	112	correct criminal history records under this chapter is not
113	113	effective unless:
114	114	(1) the waiver is written in the primary language of
115	115	the waiving party;
116	116	(2) the waiver contains a warning that criminal
117	117	history record information that cannot be sealed, expunged, or
118	118	corrected may have serious consequences for the waiving party's
119	119	future employment, education, housing, and credit;
120	120	(3) the waiver contains a recommendation that the
121	121	waiving party consult an attorney before agreeing to the waiver,
122	122	and describes the waiving party's options for consulting an
123	123	attorney, including the option to seek appointed counsel under
124	124	Article 1.051 or 26.04; and
125	125	(4) the content of the written waiver, including the
126	126	dangers and disadvantages of waiving rights under this chapter, is
127	127	discussed orally with the waiving party by a qualified person who
128	128	attests to the discussion in the waiver.
129	129	SUBCHAPTER B. DEPARTMENT OF PUBLIC SAFETY: DISSEMINATION
130	130	OF AND ACCESS TO RECORDS
131	131	Art. 60A.11. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION.
132	132	(a) A criminal justice agency may access any criminal history
133	133	record information necessary to:
134	134	(1) conduct any activity included in the
135	135	administration of criminal justice; or
136	136	(2) screen applicants for employment with a criminal
137	137	justice agency.
138	138	(b) A sensitive service agency may access all conviction and
139	139	deferred adjudication records, except for records of Class C
140	140	misdemeanors, maintained by the department, whether sealed or
141	141	unsealed, for the purpose for which access was granted to the
142	142	agency.
143	143	(c) Any person may access for any purpose:
144	144	(1) all records of convictions, other than for a Class
145	145	C misdemeanor;
146	146	(2) all records of deferred adjudications, other than
147	147	deferred dispositions granted for a Class C misdemeanor, that are
148	148	not sealed;
149	149	(3) all nonconviction records, including records of
150	150	arrests, citations, detentions, charges, and court proceedings not
151	151	ending in conviction, that:
152	152	(A) a criminal justice agency chooses to make
153	153	available under this chapter and Section 552.108, Government Code;
154	154	or
155	155	(B) a judicial agency chooses to make available
156	156	under the applicable court rules and this chapter.
157	157	(d) Any individual, or that individual's attorney or other
158	158	legal representative acting in a fiduciary capacity, may access any
159	159	criminal history record information identifying that individual,
160	160	for any purpose.
161	161	Art. 60A.12. ACCESS FEES. (a) The department is the only
162	162	agency authorized to charge a fee for access to criminal history
163	163	record information. A state or local agency other than the
164	164	department may not charge a fee for providing access to criminal
165	165	history record information.
166	166	(b) The department may not charge a fee to provide criminal
167	167	history record information in response to an inquiry from:
168	168	(1) a criminal justice agency;
169	169	(2) the office of capital writs; or
170	170	(3) an appointed defense counsel who affirms that the
171	171	information is needed to represent an indigent defendant.
172	172	(c) The department may charge a fee of:
173	173	(1) $10 for each public inquiry for criminal history
174	174	record information on a person that is processed only on the basis
175	175	of the person's name, unless the inquiry is submitted
176	176	electronically, in which event the fee is $1;
177	177	(2) $15 for each public inquiry for criminal history
178	178	record information on a person that is processed on the basis of a
179	179	fingerprint comparison search; and
180	180	(3) an amount sufficient to recover all costs directly
181	181	or indirectly incurred by the department in providing accurate,
182	182	relevant, and updated criminal history record information in
183	183	response to any inquiry for criminal history record information
184	184	from a data miner.
185	185	Art. 60A.13. NATURE OF RECORDS. The department at all times
186	186	retains ownership of data maintained in the department's records,
187	187	including records containing criminal history record information,
188	188	and may only license the use of the department's data for a period
189	189	of not more than 90 days, unless the department specifies another
190	190	period by rule.
191	191	Art. 60A.14. INTERNET WEBSITE. The department shall
192	192	consult with the office of court administration and the attorney
193	193	general as the department considers necessary to create and
194	194	maintain an Internet website that:
195	195	(1) uses electronic means to facilitate access to all
196	196	criminal history record information described in this chapter;
197	197	(2) provides access to this chapter and all rules
198	198	adopted under this chapter;
199	199	(3) effectively communicates how a person may access,
200	200	seal, and expunge records under this chapter without legal
201	201	representation;
202	202	(4) notifies the person who accesses criminal history
203	203	record information of applicable criminal penalties; and
204	204	(5) contains the following warning:
205	205	"CRIMINAL HISTORY RECORDS CHANGE OVER TIME. Records often
206	206	change due to further investigation of facts, reporting errors, and
207	207	decisions made by prosecutors and judges. Check the date on each
208	208	record obtained from this website. The older the date, the less
209	209	trustworthy the record."
210	210	Art. 60A.15. RULES. (a) The department shall adopt rules
211	211	to administer this chapter.
212	212	(b) Rules adopted under this article must provide for:
213	213	(1) a uniform method of requesting criminal history
214	214	record information from the department;
215	215	(2) the methods and formats for dissemination of
216	216	criminal history record information;
217	217	(3) security measures and policies that are designed
218	218	to guard against unauthorized release or dissemination of criminal
219	219	history record information that is maintained by the department;
220	220	(4) a uniform method of requesting that the department
221	221	seal the department's records and notifying other agencies to seal
222	222	records possessed by the agency under Subchapter G; and
223	223	(5) the transmission of information among agencies by
224	224	electronic means whenever possible and in accordance with record
225	225	transmission procedures adopted by the office of court
226	226	administration.
227	227	(c) The department may adopt rules requiring a person
228	228	requesting criminal history record information to submit any
229	229	specific information considered necessary by the department.
230	230	SUBCHAPTER C. ACCESS GRANTED BY DEPARTMENT TO CERTAIN
231	231	SENSITIVE SERVICE AGENCIES
232	232	Art. 60A.21. ACCESS PROVIDED TO SENSITIVE SERVICE AGENCIES.
233	233	(a) Sensitive service agencies may access deferred adjudication
234	234	records from the department even if those records are subject to an
235	235	order of sealing under Subchapter G.
236	236	(b) The following are considered to be sensitive service
237	237	agencies under this chapter:
238	238	(1) the State Board for Educator Certification;
239	239	(2) a school district, charter school, public school,
240	240	private school, or regional education service center;
241	241	(3) the Texas Medical Board;
242	242	(4) the Texas School for the Blind and Visually
243	243	Impaired;
244	244	(5) the Texas Board of Law Examiners;
245	245	(6) the State Bar of Texas;
246	246	(7) a district court regarding a petition for name
247	247	change under Subchapter B, Chapter 45, Family Code;
248	248	(8) the Texas School for the Deaf;
249	249	(9) the Department of Family and Protective Services;
250	250	(10) the Texas Department of Juvenile Justice;
251	251	(11) the Department of Assistive and Rehabilitative
252	252	Services;
253	253	(12) the Department of State Health Services, a local
254	254	mental health service, a local intellectual and developmental
255	255	disability authority, or a community center providing services to
256	256	persons with mental illness or intellectual disabilities;
257	257	(13) the Texas Private Security Board;
258	258	(14) a municipal or volunteer fire department;
259	259	(15) the Texas Board of Nursing;
260	260	(16) a safe house providing shelter to children in
261	261	harmful situations;
262	262	(17) a public or nonprofit hospital or hospital
263	263	district, or a facility defined by Section 250.001, Health and
264	264	Safety Code;
265	265	(18) the securities commissioner, the banking
266	266	commissioner, the savings and mortgage lending commissioner, the
267	267	consumer credit commissioner, and the credit union commissioner;
268	268	(19) the Texas State Board of Public Accountancy;
269	269	(20) the Texas Department of Licensing and Regulation;
270	270	(21) the Health and Human Services Commission;
271	271	(22) the Department of Aging and Disability Services;
272	272	(23) the Texas Education Agency;
273	273	(24) the Judicial Branch Certification Commission;
274	274	(25) every county clerk's office in relation to a
275	275	proceeding for the appointment of a guardian under Title 3, Estates
276	276	Code;
277	277	(26) the Department of Information Resources;
278	278	(27) the Court Reporters Certification Advisory
279	279	Board;
280	280	(28) the Texas Department of Insurance;
281	281	(29) the Teacher Retirement System of Texas;
282	282	(30) the Texas State Board of Pharmacy; and
283	283	(31) contractors and subcontractors only for purposes
284	284	of compliance with an explicit term addressing criminal history
285	285	record information that is stated in a contract with a special
286	286	services agency.
287	287	(c) The department by rule may designate an additional
288	288	agency as a sensitive services agency if:
289	289	(1) the agency primarily serves vulnerable
290	290	populations and has a demonstrated need for access to the
291	291	information; and
292	292	(2) the senate and house committees with jurisdiction
293	293	over criminal justice issues consent to the addition.
294	294	Art. 60A.22. WRITTEN PROCEDURES. A sensitive service
295	295	agency may not access sealed records unless the agency adopts
296	296	written procedures specifying how criminal history record
297	297	information may disqualify an applicant from employment,
298	298	licensure, housing, or educational benefit. Each procedure must
299	299	state the manner in which an agency official will determine on a
300	300	case-by-case basis whether the applicant is qualified based on
301	301	factors that include:
302	302	(1) the specific responsibilities that the applicant
303	303	seeks to undertake;
304	304	(2) the nature and seriousness of each offense
305	305	committed by the applicant;
306	306	(3) the period that elapsed between each offense and
307	307	the agency decision on the application; and
308	308	(4) the efforts made by the applicant toward
309	309	rehabilitation.
310	310	SUBCHAPTER D. PRIVATE ENTITIES
311	311	Art. 60A.31. ACCESS PROVIDED BY DATA MINERS; PROHIBITED
312	312	ACTS. (a) A person may directly or indirectly purchase criminal
313	313	history record information from the department and resell that
314	314	information subject to any license granted by the department.
315	315	(b) A person may not directly or indirectly cause the
316	316	purchase or sale of criminal history record information that is not
317	317	subject to a department license of use.
318	318	Art. 60A.32. DUTIES OF DATA MINERS. (a) Each person who
319	319	purchases from the department criminal history record information
320	320	for resale to others shall destroy all records of the information,
321	321	including all paper copies and all copies that may be distributed by
322	322	electronic means, within the person's possession or control with
323	323	respect to which the person has received notice that:
324	324	(1) the department or a court issued an order of
325	325	sealing covering the information under Subchapter G;
326	326	(2) a court issued an order of expunction covering the
327	327	information under Subchapter H; or
328	328	(3) a period of at least 90 days, or another period
329	329	prescribed by department rule, has passed since the department
330	330	provided the information.
331	331	(b) Each person who purchases from the department criminal
332	332	history record information for resale to others must:
333	333	(1) maintain an e-mail account to receive electronic
334	334	service of orders issued in response to petitions for expunction or
335	335	nondisclosure under this chapter;
336	336	(2) provide the e-mail address described by
337	337	Subdivision (1) to the department and to the district clerk in every
338	338	county;
339	339	(3) monitor the e-mail account described by
340	340	Subdivision (1) at least once each week; and
341	341	(4) comply with each order of expunction and with each
342	342	order of sealing issued under this chapter.
343	343	SUBCHAPTER E. LOCAL AGENCIES
344	344	Art. 60A.41. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION
345	345	PROVIDED BY OTHER GOVERNMENT AGENCIES. (a) A judicial or executive
346	346	agency, other than the department, may permit public access to
347	347	criminal history record information that the agency creates and
348	348	maintains in the regular course of performing the agency's official
349	349	duties, subject to the requirements of this chapter.
350	350	(b) An agency other than the department may not directly or
351	351	indirectly charge any person any fee for providing access to
352	352	criminal history record information.
353	353	Art. 60A.42. ACCESS TO NONCONVICTION INFORMATION PROVIDED
354	354	BY OTHER GOVERNMENT AGENCIES. An agency other than the department
355	355	may provide public access to nonconviction criminal history record
356	356	information only if:
357	357	(1) the agency warns the person accessing the records
358	358	that state law imposes civil and criminal penalties on anyone who
359	359	knowingly causes nonconviction records to be purchased or sold;
360	360	(2) the agency provides access to records:
361	361	(A) only at the agency's physical office, and not
362	362	remotely by electronic means;
363	363	(B) for one individual at a time, and not in bulk;
364	364	(C) in a format that omits the subject's social
365	365	security number and other personal identifying information
366	366	commonly sought by identity thieves; and
367	367	(D) in accordance with rules prescribed by the
368	368	office of court administration for judicial agencies, and by the
369	369	attorney general for executive agencies, to prevent the bulk
370	370	dissemination of searchable nonconviction records.
371	371	Art. 60A.43. DUTIES OF AGENCY MAKING CRIMINAL HISTORY
372	372	RECORD INFORMATION AND NONCONVICTION RECORDS AVAILABLE TO PUBLIC.
373	373	Each agency that chooses to make criminal history record
374	374	information or nonconviction records available to the public must:
375	375	(1) maintain an e-mail account to receive electronic
376	376	service of hearings and orders issued in response to petitions for
377	377	expunction or sealing under this chapter;
378	378	(2) provide the e-mail address described by
379	379	Subdivision (1) to the department and to the district clerk in each
380	380	county within the agency's jurisdiction;
381	381	(3) monitor the e-mail account described by
382	382	Subdivision (1) at least once each week; and
383	383	(4) comply with each order of expunction and with each
384	384	order of sealing issued under this chapter.
385	385	SUBCHAPTER F. PROHIBITED ACTS; OFFENSES; CIVIL PENALTIES
386	386	Art. 60A.51. PROHIBITED ACTS. (a) A person may not
387	387	directly or indirectly purchase or sell any form of public access to
388	388	any nonconviction record for any amount of money or other valuable
389	389	consideration.
390	390	(b) A person who has accessed criminal history record
391	391	information for one purpose may not use that information for a
392	392	different purpose, or make the information available to different
393	393	persons, unless specifically authorized by statute, department
394	394	rule, or court order.
395	395	(c) A person may not confirm the existence or absence of
396	396	criminal history record information to any person who is not
397	397	authorized to access the information.
398	398	Art. 60A.52. BULK DISTRIBUTION PROHIBITED. (a) The
399	399	department may not sell or otherwise provide public access to
400	400	criminal history record information in any bulk form.
401	401	(b) The department may sell the means to access one
402	402	individual's record for a single request, and prominently display
403	403	the date that the department provided each record.
404	404	Art. 60A.53. SUSPENSION OF ACCESS BY DEPARTMENT. (a) The
405	405	department shall suspend a person's access to criminal history
406	406	record information maintained by the department if the person
407	407	violates or fails to comply with:
408	408	(1) rules adopted by the department under this
409	409	chapter; or
410	410	(2) rules adopted by the Federal Bureau of
411	411	Investigation that relate to the dissemination or use of criminal
412	412	history record information.
413	413	(b) The department shall set the length of a person's
414	414	suspension under this article for a period calculated to ensure the
415	415	person's complete compliance with department rules in the future.
416	416	Art. 60A.54. OFFENSE: UNAUTHORIZED USE OR DISCLOSURE. (a)
417	417	A person commits an offense if the person knowingly:
418	418	(1) obtains criminal history record information in a
419	419	manner other than as authorized by this chapter;
420	420	(2) uses criminal history record information for a
421	421	purpose other than as authorized by this chapter; or
422	422	(3) discloses criminal history record information to a
423	423	person who is not entitled to the information under this chapter or
424	424	department rules.
425	425	(b) An offense under this article is a Class B misdemeanor,
426	426	except that the offense is a felony of the second degree if the
427	427	offense is committed for remuneration or the promise of
428	428	remuneration.
429	429	Art. 60A.55. OFFENSE: PURCHASE OR SALE OF NONCONVICTION
430	430	RECORDS. (a) A person commits an offense if the person knowingly
431	431	purchases or sells nonconviction records.
432	432	(b) An offense under this article is a felony of the second
433	433	degree.
434	434	(c) For purposes of this article, a person purchases or
435	435	sells access to nonconviction records if the person causes or
436	436	employs another to cause the content of more than 10 nonconviction
437	437	records to be made available by any form of search criteria in
438	438	direct or indirect exchange for money or other valuable
439	439	consideration, or for the promise of anything of value.
440	440	Art. 60A.56. CIVIL LIABILITY. (a) A person may not:
441	441	(1) obtain criminal history records in a manner other
442	442	than as authorized by this chapter;
443	443	(2) use the records for a purpose other than as
444	444	authorized by this chapter; or
445	445	(3) disclose the information to a person who is not
446	446	entitled to the information under this chapter or department rules.
447	447	(b) A person who violates Subsection (a) is liable to each
448	448	subject of the criminal history record information for:
449	449	(1) a civil penalty of $1,000; and
450	450	(2) actual damages sustained as a result of the
451	451	violation.
452	452	(c) A person who prevails in an action brought under this
453	453	article is entitled to recover court costs and reasonable
454	454	attorney's fees.
455	455	SUBCHAPTER G. LIMITING ACCESS BY SEALING
456	456	Art. 60A.61. AUTOMATIC SEALING OF NONCONVICTION RECORDS
457	457	AFTER CHARGES ARE REJECTED OR DISMISSED. (a) Each time the state
458	458	files a document with a municipal, justice, county, or district
459	459	clerk in which the state dismisses or rejects a case, complaint,
460	460	information, or indictment, the clerk shall transmit to the
461	461	department:
462	462	(1) the state's filed document; and
463	463	(2) any other information that the department requires
464	464	to seal the records associated with the dismissed or rejected
465	465	charges.
466	466	(b) The clerk shall transmit by electronic means all
467	467	information required by the department in a single transmission not
468	468	later than the fifth business day after the date the document is
469	469	filed under Subsection (a).
470	470	(c) Not later than the 10th business day after the date a
471	471	document described by Subsection (a) is filed, the state may
472	472	prevent automatic sealing of nonconviction records under this
473	473	article by notifying the department that the state intends to
474	474	pursue different charges arising from the same incident.
475	475	(d) Not earlier than the 11th business day but not later
476	476	than the 15th business day after the date the department receives
477	477	notice of a document filed under Subsection (a), if the department
478	478	has not received notice from the state under Subsection (c), the
479	479	department shall cause all records related to the charge and the
480	480	arrest or citation to be automatically sealed under Article 60A.64.
481	481	Art. 60A.62. COURT SEALING WHEN CHARGES DELAYED. (a) A
482	482	person who has been arrested or issued a citation for commission of
483	483	an offense may make a motion to seal records related to the arrest
484	484	or citation if no information or indictment is pending, and all
485	485	complaints that produced the arrest or citation:
486	486	(1) are pending; or
487	487	(2) were dismissed or rejected.
488	488	(b) A motion under Subsection (a) must be made in the court
489	489	where a charge based on the arrest or citation was last pending. A
490	490	cost or fee is not required to file or adjudicate the motion.
491	491	(c) The court shall notify the state of a hearing on the
492	492	motion not later than the fifth business day before the date of the
493	493	hearing. If the state files an indictment or information before the
494	494	date of the hearing, the court shall deny the motion without a
495	495	hearing.
496	496	(d) On hearing, the court shall order records of any arrest
497	497	or citation subject to delayed, rejected, or dismissed charges to
498	498	be sealed if:
499	499	(1) the court finds sealing the records to be in the
500	500	best interest of justice; or
501	501	(2) the following period has passed after the arrest
502	502	or citation with no information or indictment pending:
503	503	(A) three months if the only offenses charged by
504	504	complaint on arrest or citation were Class C misdemeanors;
505	505	(B) six months if a Class B or A misdemeanor was
506	506	charged by complaint on arrest, but no felony was charged; and
507	507	(C) one year if any felony was charged by
508	508	complaint on arrest.
509	509	(e) The clerk shall forward to the department by electronic
510	510	means each order sealing records under this article. On receiving
511	511	an order sealing records, the department shall cause all records
512	512	related to the charge and the arrest or citation to be sealed as
513	513	provided in the court's order.
514	514	(f) The office of court administration shall prescribe and
515	515	publish on its Internet website a form that courts may use to issue
516	516	orders under this article.
517	517	Art. 60A.63. ORDER OF DISCHARGE AND DISMISSAL OF DEFERRED
518	518	ADJUDICATION. (a) Any time after expiration of a period of
519	519	deferred adjudication or probation, the defendant may file a motion
520	520	under the criminal cause number to seek an order of discharge and
521	521	dismissal. A cost or fee is not required to file or adjudicate the
522	522	motion.
523	523	(b) If the defendant is eligible for an order of discharge
524	524	and dismissal, the court shall promptly grant a motion under this
525	525	subchapter.
526	526	(c) The effective date of each discharge and dismissal for
527	527	purposes of this subchapter is the date that the period of deferred
528	528	adjudication or probation expired or was successfully completed by
529	529	the defendant, not the date on which the court entered the order.
530	530	The effective date must be written on each order of discharge and
531	531	dismissal.
532	532	(d) Each order of discharge and dismissal shall state:
533	533	"If the defendant meets all requirements for automatic
534	534	sealing of criminal history record information under Subchapter G,
535	535	Chapter 60A, Code of Criminal Procedure, the defendant's records of
536	536	the offenses at issue in this cause shall be sealed."
537	537	(e) The court clerk shall provide one certified copy of each
538	538	order of discharge and dismissal to the defendant without charge.
539	539	Art. 60A.64. AUTOMATIC SEALING AFTER DISCHARGE AND
540	540	DISMISSAL. (a) A defendant placed on deferred adjudication is
541	541	eligible for automatic sealing under this subchapter:
542	542	(1) on:
543	543	(A) the effective date of the discharge and
544	544	dismissal if the offense for which the person was placed on deferred
545	545	adjudication was a misdemeanor other than a misdemeanor described
546	546	in Paragraph (B);
547	547	(B) the second anniversary of the effective date
548	548	of the discharge and dismissal if the offense for which the person
549	549	was placed on deferred adjudication was a misdemeanor offense
550	550	involving violence under Chapter 20, 21, 22, 25, 42, or 46, Penal
551	551	Code; or
552	552	(C) the fifth anniversary of the effective date
553	553	of the discharge and dismissal if the offense for which the person
554	554	was placed on deferred adjudication was a felony; and
555	555	(2) provided that the defendant:
556	556	(A) was not convicted or placed on deferred
557	557	adjudication for any offense during the entire period of deferred
558	558	adjudication and waiting period under Subdivision (1), other than
559	559	an offense under the Transportation Code punishable by fine only;
560	560	and
561	561	(B) has never been convicted or placed on
562	562	deferred adjudication for:
563	563	(i) an offense requiring registration as a
564	564	sex offender under Chapter 62;
565	565	(ii) an offense under Section 20.04, Penal
566	566	Code, regardless of whether the offense is a reportable conviction
567	567	or adjudication for purposes of Chapter 62;
568	568	(iii) an offense under Section 19.02,
569	569	19.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal Code; or
570	570	(iv) any felony offense involving family
571	571	violence, as defined by Section 71.004, Family Code.
572	572	(b) If the agency responsible for a defendant's community
573	573	supervision or probation concludes that the defendant is eligible
574	574	for automatic sealing under this article, the agency shall notify
575	575	the state.
576	576	(c) If the state objects to automatic sealing and, not later
577	577	than the 10th business day after the date the state receives notice
578	578	that the defendant is eligible for automatic sealing, notifies the
579	579	agency responsible for the defendant's supervision or probation of
580	580	the objection, the records may not be automatically sealed.
581	581	(d) If the agency responsible for the defendant's
582	582	supervision or probation does not receive a timely objection from
583	583	the state as described by Subsection (c), the agency shall, on or
584	584	after the 11th business day after the date the agency notifies the
585	585	state under Subsection (b):
586	586	(1) promptly notify the department that the defendant
587	587	is eligible for automatic sealing; and
588	588	(2) provide the department with a copy of the order of
589	589	discharge and dismissal and all information regarding the criminal
590	590	history record information to be sealed that the department
591	591	requires.
592	592	(e) On receipt of an order of discharge and dismissal and
593	593	the appropriate agency's statement that the defendant is eligible
594	594	for automatic sealing, the department shall cause to be sealed all
595	595	criminal history records related to the offense for which the
596	596	person was placed on deferred adjudication.
597	597	Art. 60A.65. COURT SEALING DEFERRED ADJUDICATION RECORDS BY
598	598	MOTION. (a) If the agency responsible for the defendant's
599	599	supervision or probation declines to automatically seal criminal
600	600	history record information under Article 60A.64, the defendant may
601	601	file a motion to seal the records.
602	602	(b) A motion under this article must be filed under the
603	603	criminal cause number and in the court that placed the defendant on
604	604	deferred adjudication.
605	605	(c) In ruling on a motion under this article, the court must
606	606	make a finding as to whether the defendant is eligible for record
607	607	sealing under Article 60A.64. If the court does not make a finding
608	608	that the defendant is eligible, the court may not order the records
609	609	sealed.
610	610	(d) If the defendant is eligible for record sealing under
611	611	Article 60A.64, the court shall decide whether to order the records
612	612	sealed based on the court's determination of the best interest of
613	613	justice.
614	614	(e) In response to a motion under this article, the court
615	615	shall enter an order sealing the deferred adjudication records or
616	616	deny the motion. If the court orders records sealed, the clerk
617	617	shall electronically transmit the order to the department.
618	618	(f) Not later than the 10th business day after the date the
619	619	department receives an order under this article, the department
620	620	shall cause the records to be sealed as provided in the order.
621	621	Art. 60A.66. UNSEALING OF DEFERRED ADJUDICATION RECORDS BY
622	622	MOTION. (a) At any time before the second anniversary of the date
623	623	criminal history record information is sealed under Article 60A.64
624	624	or 60A.65, the state may file a motion to unseal the records.
625	625	(b) A motion under this article must be filed under the
626	626	criminal cause number and in the court that placed the defendant on
627	627	deferred adjudication.
628	628	(c) In ruling on a motion under this article, the court
629	629	shall determine whether the defendant is eligible for record
630	630	sealing under Article 60A.64. If the court determines the
631	631	defendant is ineligible under that article, the court may not order
632	632	the records to remain sealed.
633	633	(d) If the defendant is eligible for record sealing under
634	634	Article 60A.64, the court shall decide whether to order the records
635	635	unsealed based on the court's determination of the best interest of
636	636	justice.
637	637	(e) In response to a motion under this article, the court
638	638	shall enter an order unsealing the deferred adjudication records or
639	639	an order directing the records to remain sealed. If the court
640	640	orders sealed records to be unsealed, the clerk shall
641	641	electronically transmit the order to the department.
642	642	(f) Not later than the 10th business day after the date the
643	643	department receives an order under this article, the department
644	644	shall cause the records to be unsealed as provided in the order.
645	645	Art. 60A.67. SEALING PROCEDURE AND EFFECT. (a) If the
646	646	department is required to cause records to be sealed under this
647	647	subchapter, not later than the 10th business day after the date that
648	648	the department receives the information that the department
649	649	requires to seal records, the department shall:
650	650	(1) seal the department's own records;
651	651	(2) prepare a document:
652	652	(A) stating: "By order of court and operation of
653	653	Subchapter G, Chapter 60A, Code of Criminal Procedure, please take
654	654	notice that within 30 days, you must take all actions necessary to
655	655	prevent public access to the following records in your custody or
656	656	control."; and
657	657	(B) indicating all of the criminal history record
658	658	information needing to be sealed; and
659	659	(3) transmit by electronic means the document
660	660	described by Subdivision (2) to each:
661	661	(A) magistrate, court, prosecuting attorney,
662	662	correctional facility, central state depository of criminal
663	663	records, and any other official or agency or other entity of this
664	664	state or of a political subdivision of this state;
665	665	(B) central federal depository of criminal
666	666	records if there is reason to believe that depository has criminal
667	667	history record information that is the subject of the order;
668	668	(C) private entity that purchases criminal
669	669	history record information from the department or that otherwise is
670	670	likely to have criminal history record information that is subject
671	671	to the order; and
672	672	(D) e-mail address provided under Articles
673	673	60A.32 and 60A.43.
674	674	(b) Not later than the 30th business day after the date of
675	675	receipt of a sealing notice described by Subsection (a)(2), each
676	676	person receiving notice shall seal all criminal history record
677	677	information maintained by the person that is described in the
678	678	sealing notice.
679	679	Art. 60A.68. EFFECT OF SEALING. (a) A person whose
680	680	criminal history record information is sealed under this subchapter
681	681	is not required in any application for employment, education,
682	682	housing, licensure, or credit to state that the person has been the
683	683	subject of any criminal proceeding related to the sealed records.
684	684	(b) A person may not discriminate against an applicant for
685	685	employment, education, housing, licensure, or credit on the ground
686	686	that the applicant withheld information as authorized by Subsection
687	687	(a).
688	688	(c) A criminal justice agency or sensitive service agency
689	689	may inquire about the events that produced the sealed records and
690	690	use information about the events giving rise to the record as one
691	691	factor, but not the sole factor, in making an employment,
692	692	education, licensing, or housing decision.
693	693	Art. 60A.69. FORM. The office of court administration
694	694	shall prescribe and publish forms by electronic means that courts
695	695	may use to issue orders under this subchapter.
696	696	SUBCHAPTER H. LIMITING ACCESS BY EXPUNCTION
697	697	Art. 60A.71. RIGHT TO EXPUNCTION. (a) A person who has
698	698	been placed under a custodial or noncustodial arrest for commission
699	699	of a felony or misdemeanor or issued a citation for the commission
700	700	of a misdemeanor is entitled to have all records relating to the
701	701	arrest or citation expunged if:
702	702	(1) the person is tried for the offense for which the
703	703	person was arrested or issued a citation and is acquitted by a trial
704	704	or appellate court, and if acquitted by a court of appeals, the
705	705	period for filing a petition for discretionary review has expired;
706	706	(2) the person is convicted and subsequently granted
707	707	judicial or executive relief from conviction if the order granting
708	708	relief states that the order is rendered on the basis of the
709	709	person's actual innocence;
710	710	(3) the person is convicted and subsequently pardoned;
711	711	(4) following the arrest or citation, the person was
712	712	charged with a Class C misdemeanor for which the person was granted
713	713	a discharge and dismissal;
714	714	(5) the state certifies that the records are not
715	715	needed for use in any criminal investigation or prosecution,
716	716	including an investigation or prosecution of another person;
717	717	(6) an information or indictment was dismissed or
718	718	quashed following arrest, no other information or indictment is
719	719	pending from the arrest, and the court finds that the indictment or
720	720	information was dismissed or quashed because:
721	721	(A) the person completed a pretrial intervention
722	722	program authorized under Section 76.011, Government Code;
723	723	(B) the presentment of the indictment or
724	724	information had been made because of mistake, false information, or
725	725	other similar reason indicating absence of probable cause at the
726	726	time of the dismissal to believe the person committed the offense;
727	727	or
728	728	(C) the indictment or information was void; or
729	729	(7) prosecution of the person for the offense for
730	730	which the person was arrested or issued a citation is no longer
731	731	possible because the limitations period has expired.
732	732	(b) When some but not all charges arising from an arrest or
733	733	citation qualify for expunction under Subsection (a), the right to
734	734	expunction extends to all records of the qualifying charges, but
735	735	not to any arrest, citation, or charge that does not qualify.
736	736	(c) If a defendant becomes eligible for records expunction
737	737	while represented by counsel appointed under Article 26.04, counsel
738	738	shall:
739	739	(1) advise the defendant of the effect of expunction
740	740	on civil and criminal proceedings and of the appropriate time to
741	741	seek expunction; and
742	742	(2) petition for expunction as part of appointed
743	743	counsel's duties on request of the defendant.
744	744	Art. 60A.72. DISTRICT COURT DECIDES EXPUNCTIONS. (a) The
745	745	following persons may file an ex parte civil action seeking
746	746	expunction under this subchapter:
747	747	(1) a person who claims a right to expunction; or
748	748	(2) if the person is deceased, the deceased person's
749	749	grandparent, parent, spouse, adult brother, adult sister, or adult
750	750	child.
751	751	(b) An expunction petition must be filed in the district
752	752	court for the county in which:
753	753	(1) the arrest or citation at issue occurred; or
754	754	(2) the offense at issue was alleged to have occurred.
755	755	(c) An expunction petition must include:
756	756	(1) the following identification information for the
757	757	person claiming the right to expunction:
758	758	(A) full name;
759	759	(B) gender;
760	760	(C) race;
761	761	(D) date of birth;
762	762	(E) driver's license number, if any;
763	763	(F) social security number, if any; and
764	764	(G) address at the time of the arrest or
765	765	citation, if known;
766	766	(2) the following arrest or citation information:
767	767	(A) the date the person was arrested or the
768	768	citation was issued;
769	769	(B) whether an arrest was custodial or
770	770	noncustodial;
771	771	(C) the name of the arresting agency or agency
772	772	issuing the citation;
773	773	(D) the name of the county where the arrest or
774	774	issuance of a citation occurred; and
775	775	(E) the name of the municipality where the arrest
776	776	or issuance of a citation occurred, if any;
777	777	(3) for each offense charged in connection with the
778	778	arrest or citation:
779	779	(A) the offense charged;
780	780	(B) the date that each charged offense is alleged
781	781	to have occurred; and
782	782	(C) the court and case number for each charged
783	783	offense; and
784	784	(4) which rights to expunction apply to each charge
785	785	and each arrest or citation, as applicable.
786	786	(d) On filing of each expunction petition, the court's clerk
787	787	shall:
788	788	(1) seal from public access all of its files in the
789	789	expunction case that identify the petitioner;
790	790	(2) consult the court coordinator of the assigned
791	791	court and set a hearing date for each petition that is not earlier
792	792	than the 30th calendar day after the date of the petition but not
793	793	later than the 60th calendar day after the date of the petition; and
794	794	(3) not later than the next business day after the date
795	795	the expunction petition is filed, electronically transmit a copy of
796	796	the petition and the hearing date, time, and place to:
797	797	(A) the district attorney;
798	798	(B) the county attorney;
799	799	(C) the department; and
800	800	(D) any criminal justice agency that has
801	801	requested electronic notice of expunction proceedings from the
802	802	court's clerk.
803	803	(e) The court may grant any expunction petition at any time
804	804	without a hearing if the district or county attorney agrees in
805	805	writing that the petition should be granted.
806	806	(f) At each expunction hearing the district court shall
807	807	decide:
808	808	(1) whether the petitioner has proved a right to
809	809	expunction by a preponderance of the evidence; and
810	810	(2) whether the county or district attorney has proved
811	811	by a preponderance of the evidence that due to ongoing criminal,
812	812	civil, or administrative proceedings, exceptions to expunction
813	813	should be made, each of which must specify:
814	814	(A) what records may be maintained;
815	815	(B) which criminal justice agencies may maintain
816	816	the records; and
817	817	(C) for what period each criminal justice agency
818	818	may maintain each record before destroying the record in compliance
819	819	with the expunction order.
820	820	(g) Not later than the third business day after the date of
821	821	an expunction hearing, the district court shall enter an order
822	822	directing or denying expunction. Each order granting expunction
823	823	shall state:
824	824	(1) the information identifying the person whose
825	825	records are to be expunged required under Subsection (c)(1);
826	826	(2) the incident number the department assigned the
827	827	individual incident of arrest under Article 60.07(b)(1), if any;
828	828	(3) which arrests or citations listed in Subsection
829	829	(c)(2) are expunged;
830	830	(4) which charged offenses listed in Subsection (c)(3)
831	831	are expunged; and
832	832	(5) any expunction limitations proved necessary by the
833	833	county or district attorney.
834	834	(h) The person who is the subject of the expunction order or
835	835	any agency receiving the expunction order may appeal the court's
836	836	decision in the same manner as in any other civil case.
837	837	(i) Immediately on entry of each expunction order, the
838	838	district court clerk shall:
839	839	(1) provide without charge one certified paper copy of
840	840	the order to the petitioner;
841	841	(2) transmit a copy of the order by electronic means to
842	842	the department's Crime Records Service;
843	843	(3) transmit a copy of the order by electronic means to
844	844	each person and agency that has provided an e-mail address to the
845	845	district clerk under Articles 60A.32 and 60A.43; and
846	846	(4) on the 30th calendar day after the date of the
847	847	expunction order, expunge the court's entire case file.
848	848	Art. 60A.73. EXPUNCTION PROCEDURE AND EFFECT; CRIMINAL
849	849	PENALTIES. (a) Not later than the 10th business day after the date
850	850	the department receives an expunction order from a district clerk,
851	851	the department must expunge all charge records and all arrest or
852	852	citation records as ordered.
853	853	(b) Not later than the 30th calendar day after the date a
854	854	person or agency receives an expunction order from a district
855	855	clerk, the person or agency shall expunge all charge records and
856	856	arrest or citation records in the possession of the person or
857	857	agency, as ordered.
858	858	(c) A record is expunged only if it is physically or
859	859	electronically altered in a way that renders impossible any use of
860	860	the record to connect the person identified in the order as
861	861	connected to the expunged arrest, citation, or charge.
862	862	Art. 60A.74. OFFENSE: FAILURE TO DESTROY RECORDS SUBJECT TO
863	863	ORDER OF EXPUNCTION. (a) A person who knowingly fails to destroy
864	864	identifying portions of a record ordered expunged under this
865	865	chapter commits an offense.
866	866	(b) An offense under this article is a Class B misdemeanor,
867	867	except that:
868	868	(1) the offense is a Class A misdemeanor if the person
869	869	has been previously convicted of an offense under this article; and
870	870	(2) the offense is a second degree felony if the person
871	871	has been previously convicted two or more times of an offense under
872	872	this article.
873	873	Art. 60A.75. OFFENSE: RELEASE OF EXPUNGED INFORMATION. (a)
874	874	A person commits an offense if the person releases, publishes, or
875	875	uses records the person knows have been ordered expunged under this
876	876	chapter.
877	877	(b) An offense under this article is a Class B misdemeanor,
878	878	except that:
879	879	(1) the offense is a Class A misdemeanor if the person
880	880	has been previously convicted of an offense under this article; and
881	881	(2) the offense is a second degree felony if the person
882	882	has been previously convicted two or more times of an offense under
883	883	this article.
884	884	Art. 60A.76. EFFECT OF EXPUNCTION. (a) A person whose
885	885	criminal history record information has been expunged under this
886	886	subchapter may deny the occurrence of the arrest, citation, or
887	887	charge and the existence of the expunction order.
888	888	(b) A person may not discriminate against an applicant for
889	889	employment, housing, education, licensure, or credit because the
890	890	applicant withheld information on an application as permitted by
891	891	Subsection (a).
892	892	(c) If any person is questioned under oath in a criminal
893	893	proceeding about an arrest, citation, or charge for which the
894	894	records have been expunged, the person may state only that the
895	895	matter in question has been expunged.
896	896	Art. 60A.77. FORMS. The office of court administration
897	897	shall prescribe and publish by electronic means forms for the
898	898	petition for expunction and order for expunction under this
899	899	subchapter.
900	900	SUBCHAPTER I. CORRECTING ERRONEOUS RECORDS
901	901	Art. 60A.81. CENTRALIZED CORRECTION REQUESTS;
902	902	INVESTIGATION. (a) Any person who becomes aware that criminal
903	903	history records contain erroneous information, that sealed records
904	904	are publicly available, or that expunged records are available, may
905	905	seek correction of records by filling out a form available on the
906	906	department's Internet website, or by telephoning the department's
907	907	Crime Records Service.
908	908	(b) The department shall collect and record all correction
909	909	requests without charging a fee and in a manner that facilitates
910	910	presentation of requests.
911	911	(c) The department shall investigate each request, and
912	912	electronically transmit a written statement or make a telephone
913	913	call informing the requestor of the status or response at least once
914	914	during each 30-day period until the request is resolved.
915	915	(d) The department may deny a request for failure to provide
916	916	necessary information only when the department is unable to get the
917	917	information from another source without significant time or
918	918	expense.
919	919	(e) The department may require a requestor to submit
920	920	fingerprints only if necessary to establish facts to correct the
921	921	record at issue. The department shall make necessary
922	922	fingerprinting available to requestors without charge.
923	923	Art. 60A.82. ADMINISTRATIVE CORRECTION OF ERRONEOUS
924	924	RECORDS. (a) If the department determines that any of the
925	925	department's criminal history record information contains an
926	926	error, the department shall correct the record and electronically
927	927	transmit notice to all agencies and persons the department
928	928	considers reasonably likely to have received the erroneous
929	929	information from the department. The notice must state that all
930	930	agencies and persons receiving the notice must correct the records.
931	931	(b) If the department becomes aware that a criminal justice
932	932	agency's criminal history records may be erroneous, the department
933	933	shall contact the agency and attempt to resolve the issue by
934	934	agreement.
935	935	(c) If the department and a criminal justice agency agree
936	936	that the agency's records contain an error, the agency shall
937	937	correct the record and the department shall correct all the
938	938	department records to be consistent with the agency's correction.
939	939	The department shall transmit notice of the correction
940	940	electronically to all agencies and persons the department considers
941	941	reasonably likely to have received the erroneous information from
942	942	the department. The notice must state that all agencies and persons
943	943	receiving the notice must correct the records.
944	944	Art. 60A.83. JUDICIAL CORRECTION OF ERRONEOUS RECORDS. (a)
945	945	If the department denies a correction request for any reason, the
946	946	requestor may file a civil action:
947	947	(1) in the district court where the requestor resides,
948	948	if the requestor resides in this state; or
949	949	(2) in the district court in Travis County, if the
950	950	requestor resides in another state.
951	951	(b) If the department does not deny a correction request,
952	952	but the correction is not administratively completed due to
953	953	disagreement with another criminal justice agency, the requestor
954	954	may file a civil action in the district court where the criminal
955	955	justice agency is located.
956	956	(c) The department and the department's counsel may appear
957	957	remotely, by telephone or video conference, in any civil proceeding
958	958	filed under this article.
959	959	(d) The only relief available in an action under this
960	960	article, after discovery, is:
961	961	(1) injunctive relief as necessary to secure accurate
962	962	criminal history records; and
963	963	(2) all litigation costs, not including attorney's
964	964	fees.
965	965	SUBCHAPTER J. REFERENCES IN LAW
966	966	Art. 60A.91. REFERENCES TO ORDERS OF NONDISCLOSURE AND
967	967	ORDERS OF EXPUNCTION. (a) A reference in law to an order of
968	968	nondisclosure or any provision of Subchapter F, Chapter 411,
969	969	Government Code, means a reference to record sealing under
970	970	Subchapter G of this code.
971	971	(b) A reference in law to expunction or any provision of
972	972	Chapter 55 means a reference to Subchapter H.
973	973	SECTION 4. The following are repealed:
974	974	(1) Chapter 55, Code of Criminal Procedure; and
975	975	(2) Subchapter F, Chapter 411, Government Code.
976	976	SECTION 5. A sensitive service agency is not required to
977	977	adopt the policy prescribed by Article 60A.22, Code of Criminal
978	978	Procedure, as added by this Act, before September 1, 2017.
979	979	SECTION 6. This Act takes effect September 1, 2015.