By: Canales, et al. (Senate Sponsor - Hinojosa) H.B. No. 322
(In the Senate - Received from the House April 18, 2017;
May 1, 2017, read first time and referred to Committee on Criminal
Justice; May 21, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 6, Nays 0;
May 21, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 322 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to the expunction of arrest records and files for certain
veterans and the waiver of fees and costs charged for the
expunction.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 55.01, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (a-3) to
read as follows:
(a) A person who has been placed under a custodial or
noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and files relating to
the arrest expunged if:
(1) the person is tried for the offense for which the
person was arrested and is:
(A) acquitted by the trial court, except as
provided by Subsection (c); or
(B) convicted and subsequently:
(i) pardoned for a reason other than that
described by Subparagraph (ii); or
(ii) pardoned or otherwise granted relief
on the basis of actual innocence with respect to that offense, if
the applicable pardon or court order clearly indicates on its face
that the pardon or order was granted or rendered on the basis of the
person's actual innocence; or
(2) the person has been released and the charge, if
any, has not resulted in a final conviction and is no longer pending
and there was no court-ordered community supervision under Chapter
42A for 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 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 arrest, and:
(a) at least 180 days have elapsed
from the date of arrest if the 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 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 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
arrest, was dismissed or quashed, and the court finds that the
indictment or information was dismissed or quashed because:
(a) the person completed a veterans
treatment court program created under Chapter 124, Government Code,
or former law, subject to Subsection (a-3);
(b) the person completed a pretrial
intervention program authorized under Section 76.011, Government
Code, other than a veterans treatment court program created under
Chapter 124, Government Code, or former law;
(c) [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
(d) [, 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-3) A person is eligible under Subsection
(a)(2)(A)(ii)(a) for an expunction of arrest records and files only
if:
(1) the person has not previously received an
expunction of arrest records and files under that sub-subparagraph;
and
(2) the person submits to the court an affidavit
attesting to that fact.
SECTION 2. Section 1a, Article 55.02, Code of Criminal
Procedure, is amended by adding Subsection (a-1) to read as
follows:
(a-1) A trial court dismissing a case following a person's
successful completion of a veterans treatment court program created
under Chapter 124, Government Code, or former law, if the trial
court is a district court, or a district court in the county in
which the trial court is located may, with the consent of the
attorney representing the state, enter an order of expunction for a
person entitled to expunction under Article 55.01(a)(2)(A)(ii)(a)
not later than the 30th day after the date the court dismisses the
case or receives the information regarding that dismissal, as
applicable. Notwithstanding any other law, a court that enters an
order for expunction under this subsection may not charge any fee or
assess any cost for the expunction.
SECTION 3. Article 102.006(b), Code of Criminal Procedure,
is amended to read as follows:
(b) The fees under Subsection (a) shall be waived if[:
[(1)] the petitioner:
(1) seeks expunction of a criminal record that relates
to an arrest for an offense of which the person was acquitted, other
than an acquittal for an offense described by Article 55.01(c), [;]
and
[(2)] the petition for expunction is filed not later
than the 30th day after the date of the acquittal; or
(2) is entitled to expunction under Article
55.01(a)(2)(A)(ii)(a) after successful completion of a veterans
treatment court program created under Chapter 124, Government Code,
or former law.
SECTION 4. Section 124.001(b), Government Code, is amended
to read as follows:
(b) If a defendant successfully completes a veterans
treatment court program, after notice to the attorney representing
the state and a hearing in the veterans treatment court at which
that court determines that a dismissal is in the best interest of
justice, the veterans treatment court shall provide to the court in
which the criminal case is pending information about the dismissal
and shall include all of the information required about the
defendant for a petition for expunction under Section 2(b), Article
55.02, Code of Criminal Procedure. The court in which the criminal
case is pending shall dismiss the case against the defendant and:
(1) if that trial court is a district court, the court
may, with the consent of the attorney representing the state, enter
an order of expunction on behalf of the defendant under Section
1a(a-1), Article 55.02, Code of Criminal Procedure; or
(2) if that trial court is not a district court, the
court may, with the consent of the attorney representing the state,
forward the appropriate dismissal and expunction information to
enable a district court with jurisdiction to enter an order of
expunction on behalf of the defendant under Section 1a(a-1),
Article 55.02, Code of Criminal Procedure.
SECTION 5. (a) Except as provided by Subsection (b) of
this section, this Act applies to the expunction of arrest records
and files for a person who successfully completes a veterans
treatment court program under Chapter 124, Government Code, or
former law before, on, or after the effective date of this Act,
regardless of when the underlying arrest occurred.
(b) The change in law made by this Act to Article 102.006,
Code of Criminal Procedure, applies to the fees charged or costs
assessed for an expunction order entered on or after the effective
date of this Act, regardless of whether the underlying arrest
occurred before, on, or after the effective date of this Act.
(c) For a person who is entitled to expunction under Article
55.01(a)(2)(A)(ii)(a), Code of Criminal Procedure, as amended by
this Act, based on a successful completion of a veterans treatment
court program under Chapter 124, Government Code, or former law
before the effective date of this Act, notwithstanding the 30-day
time limit provided for the court to enter an automatic order of
expunction under Section 1a(a-1), Article 55.02, Code of Criminal
Procedure, as added by this Act, the court may, with the consent of
the attorney representing the state, enter an order of expunction
for the person as soon as practicable after the court receives
written notice from any party to the case about the person's
entitlement to the expunction.
SECTION 6. This Act takes effect September 1, 2017.
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