87R5727 JRR-F
By: Allen H.B. No. 3547
A BILL TO BE ENTITLED
AN ACT
relating to the eligibility of certain criminal defendants for an
order of nondisclosure of criminal history record information;
authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42.01, Code of Criminal Procedure, is
amended by adding Section 16 to read as follows:
Sec. 16. In addition to the information described by
Section 1, the judgment must reflect affirmative findings entered
pursuant to Article 42A.059.
SECTION 2. Subchapter B, Chapter 42A, Code of Criminal
Procedure, is amended by adding Article 42A.059 to read as follows:
Art. 42A.059. AFFIRMATIVE FINDING REGARDING AUTOMATIC
ORDER OF NONDISCLOSURE. If a judge places on community supervision
a defendant charged with a misdemeanor other than a misdemeanor
under Section 106.041, Alcoholic Beverage Code, or Section 49.04,
49.05, 49.06, or 49.065, Penal Code, the judge shall make an
affirmative finding of fact and file a statement of that
affirmative finding in the judgment in the case if the judge
determines that it is not in the best interest of justice that the
defendant receive an automatic order of nondisclosure under Section
411.07299, Government Code.
SECTION 3. Article 42A.105(f), Code of Criminal Procedure,
is amended to read as follows:
(f) If a judge places on deferred adjudication community
supervision a defendant charged with a misdemeanor other than a
misdemeanor under Section 49.04 or 49.06 [Chapter 20, 21, 22, 25,
42, 43, 46, or 71], Penal Code, the judge shall make an affirmative
finding of fact and file a statement of that affirmative finding
with the papers in the case if the judge determines that it is not in
the best interest of justice that the defendant receive an
automatic order of nondisclosure under Section 411.072, Government
Code.
SECTION 4. Section 411.0716, Government Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) Except as otherwise provided by this section
[Subsection (b)], this subchapter applies to the issuance of an
order of nondisclosure of criminal history record information for
an offense committed before, on, or after September 1, 2017.
(c) Section 411.07299 applies only to a person described by
Subsection (a) of that section who was placed on community
supervision under Chapter 42A, Code of Criminal Procedure, on or
after September 1, 2021.
SECTION 5. The heading to Section 411.072, Government Code,
is amended to read as follows:
Sec. 411.072. AUTOMATIC ORDER OF NONDISCLOSURE FOLLOWING
COMPLETION OF [PROCEDURE FOR] DEFERRED ADJUDICATION COMMUNITY
SUPERVISION; CERTAIN [NONVIOLENT] MISDEMEANORS.
SECTION 6. Section 411.072(a), Government Code, is amended
to read as follows:
(a) This section applies only to a person who:
(1) was placed on deferred adjudication community
supervision under Subchapter C, Chapter 42A, Code of Criminal
Procedure, for a misdemeanor other than a misdemeanor:
(A) under[:
[(i)] Section 49.04 or 49.06, Penal Code;
or
[(ii) Chapter 20, 21, 22, 25, 42, 43, 46, or
71, Penal Code; or]
(B) with respect to which an affirmative finding
under Article 42A.105(f), Code of Criminal Procedure, or former
Section 5(k), Article 42.12, Code of Criminal Procedure, was filed
in the papers of the case; and
(2) has never been previously convicted of or placed
on deferred adjudication community supervision for another offense
other than a traffic offense that is punishable by fine only.
SECTION 7. Subchapter E-1, Chapter 411, Government Code, is
amended by adding Section 411.07299 to read as follows:
Sec. 411.07299. AUTOMATIC ORDER OF NONDISCLOSURE FOLLOWING
COMPLETION OF COMMUNITY SUPERVISION; CERTAIN MISDEMEANORS. (a)
This section applies only to a person who:
(1) was placed on community supervision under Chapter
42A, Code of Criminal Procedure:
(A) following a conviction of a misdemeanor other
than a misdemeanor:
(i) under Section 106.041, Alcoholic
Beverage Code, or Section 49.04, 49.05, 49.06, or 49.065, Penal
Code; or
(ii) with respect to which an affirmative
finding under Article 42A.059, Code of Criminal Procedure, was
filed in the judgment in the case; and
(B) under a provision of Chapter 42A, Code of
Criminal Procedure, other than Subchapter C, including:
(i) a provision that requires the person to
serve a term of confinement as a condition of community
supervision; or
(ii) another provision that authorizes
placing a person on community supervision after the person has
served part of a term of confinement imposed for the offense; and
(2) has never been previously convicted of or placed
on deferred adjudication community supervision for another offense
other than a traffic offense that is punishable by fine only.
(b) Notwithstanding any other provision of this subchapter
or Subchapter F, if a person described by Subsection (a) completes
the period of community supervision, including any term of
confinement imposed and payment of all fines, costs, and
restitution imposed, and satisfies the requirements of Section
411.074 and if the person's community supervision is not revoked,
the court that placed the person on community supervision shall
issue an order of nondisclosure of criminal history record
information under this subchapter prohibiting criminal justice
agencies from disclosing to the public criminal history record
information related to the offense giving rise to the community
supervision. The court shall determine whether the person
satisfies the requirements of Section 411.074, and if the court
makes a finding that the requirements of that section are
satisfied, the court shall issue the order of nondisclosure of
criminal history record information:
(1) on the successful completion of the community
supervision, if the person completes the period of community
supervision on or after the 180th day after the date the court
placed the person on community supervision; or
(2) as soon as practicable on or after the 180th day
after the date the court placed the person on community
supervision, if the person completed the period of community
supervision before that date.
(c) The person shall present to the court any evidence
necessary to establish that the person is eligible to receive an
order of nondisclosure of criminal history record information under
this section. The person must pay a $28 fee to the clerk of the
court before the court issues the order.
(d) A person who is not eligible to receive an order of
nondisclosure of criminal history record information under this
section solely because an affirmative finding under Article
42A.059, Code of Criminal Procedure, was filed in the judgment in
the case may file a petition for an order of nondisclosure of
criminal history record information under Section 411.073 if the
person otherwise satisfies the requirements of that section.
SECTION 8. Section 411.073, Government Code, is amended to
read as follows:
Sec. 411.073. PROCEDURE FOR COMMUNITY SUPERVISION
FOLLOWING CONVICTION; CERTAIN MISDEMEANORS AND FELONIES.
(a) This section applies only to a person placed on community
supervision under Chapter 42A, Code of Criminal Procedure:
(1) following a conviction of an offense [a
misdemeanor] other than an offense [a misdemeanor] under Section
106.041, Alcoholic Beverage Code, or Section 49.04, 49.045, 49.05,
49.06, [or] 49.065, 49.07, or 49.08, Penal Code[, or Chapter 71,
Penal Code]; and
(2) under a provision of Chapter 42A, Code of Criminal
Procedure, other than Subchapter C, including:
(A) a provision that requires the person to serve
a term of confinement as a condition of community supervision; or
(B) another provision that authorizes placing a
person on community supervision after the person has served part of
a term of confinement imposed for the offense.
(b) Notwithstanding any other provision of this subchapter
or Subchapter F, a person described by Subsection (a) whose
community supervision is not revoked and who completes the period
of community supervision, including any term of confinement imposed
and payment of all fines, costs, and restitution imposed, may
petition the court that placed the person on community supervision
for an order of nondisclosure of criminal history record
information under this section if the person[:
[(1)] satisfies the requirements of this section and
Section 411.074[; and
[(2) has never been previously convicted of or placed
on deferred adjudication community supervision for another offense
other than a traffic offense that is punishable by fine only].
(c) Except as provided by Subsection (c-1) and subject to
Subsection (c-2), after [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
community supervision.
(c-1) A court may not issue an order of nondisclosure of
criminal history record information under this section without the
consent of the attorney representing the state if the offense for
which the order is sought is a felony of the third degree or any
higher category of offense.
(c-2) A person is not eligible to receive an order of
nondisclosure of criminal history record information under this
section with respect to a misdemeanor if the person has previously
received six orders of nondisclosure for a misdemeanor under this
section or Section 411.0735. A person is not eligible to receive an
order of nondisclosure of criminal history record information under
this section with respect to a felony if the person has previously
received two orders of nondisclosure for a felony under this
section or Section 411.0735.
(d) A person may petition the court that placed the person
on community supervision for an order of nondisclosure of criminal
history record information under this section only on or after:
(1) the completion of the community supervision, if
the offense for which the person was placed on community
supervision was a misdemeanor other than a misdemeanor described by
Subdivision (2); [or]
(2) the second anniversary of the date of completion
of the community supervision, if the offense for which the person
was placed on community supervision was a misdemeanor under Chapter
20, 21, 22, 25, 42, 43, or 46, Penal Code;
(3) the sixth anniversary of the date of completion of
the community supervision, if the offense for which the person was
placed on community supervision was a state jail felony;
(4) the eighth anniversary of the date of completion
of the community supervision, if the offense for which the person
was placed on community supervision was a felony of the third
degree;
(5) the ninth anniversary of the date of completion of
the community supervision, if the offense for which the person was
placed on community supervision was a felony of the second degree;
or
(6) the 10th anniversary of the date of completion of
the community supervision, if the offense for which the person was
placed on community supervision was a felony of the first degree.
SECTION 9. Section 411.0735, Government Code, is amended to
read as follows:
Sec. 411.0735. PROCEDURE FOR CONVICTION; CERTAIN
MISDEMEANORS AND FELONIES. (a) This section applies only to a
person who:
(1) is convicted of an offense [a misdemeanor] other
than an offense [a misdemeanor] under Section 106.041, Alcoholic
Beverage Code, or Section 49.04, 49.045, 49.05, 49.06, [or] 49.065,
49.07, or 49.08, Penal Code[, or Chapter 71, Penal Code]; and
(2) is not eligible for an order of nondisclosure of
criminal history record information under Section 411.073.
(b) Notwithstanding any other provision of this subchapter
or Subchapter F, a person described by Subsection (a) who completes
the person's sentence, including any term of confinement imposed
and payment of all fines, costs, and restitution imposed, may
petition the court that imposed the sentence for an order of
nondisclosure of criminal history record information under this
section if the person[:
[(1)] satisfies the requirements of this section and
Section 411.074[; and
[(2) has never been previously convicted of or placed
on deferred adjudication community supervision for another offense
other than a traffic offense that is punishable by fine only].
(c) Except as provided by Subsection (c-1) and subject to
Subsection (c-2), 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 for which the person was
convicted.
(c-1) A court may not issue an order of nondisclosure of
criminal history record information under this section without the
consent of the attorney representing the state if the [court
determines that the] offense for which the order is sought is a
felony of the third degree or any higher category of offense[, other
than an offense under Section 22.01, Penal Code, was violent or
sexual in nature].
(c-2) A person is not eligible to receive an order of
nondisclosure of criminal history record information under this
section with respect to a misdemeanor if the person has previously
received six orders of nondisclosure for a misdemeanor under this
section or Section 411.073. A person is not eligible to receive an
order of nondisclosure of criminal history record information under
this section with respect to a felony if the person has previously
received two orders of nondisclosure for a felony under this
section or Section 411.073.
(d) A person may petition the court that imposed the
sentence for an order of nondisclosure of criminal history record
information under this section only on or after:
(1) the date of completion of the person's sentence, if
the offense of which the person was convicted was a misdemeanor
punishable by fine only; [or]
(2) the second anniversary of the date of completion
of the person's sentence, if the offense of which the person was
convicted was a misdemeanor other than a misdemeanor described by
Subdivision (1);
(3) the eighth anniversary of the date of completion
of the person's sentence, if the offense of which the person was
convicted was a state jail felony;
(4) the 10th anniversary of the date of completion of
the person's sentence, if the offense of which the person was
convicted was a felony of the third degree;
(5) the 11th anniversary of the date of completion of
the person's sentence, if the offense of which the person was
convicted was a felony of the second degree; or
(6) the 12th anniversary of the date of completion of
the person's sentence, if the offense of which the person was
convicted was a felony of the first degree.
SECTION 10. Section 411.074(b), Government Code, is amended
to read as follows:
(b) A person may not be granted an order of nondisclosure of
criminal history record information under this subchapter and is
not entitled to petition the court for an order of nondisclosure
under this subchapter if[:
[(1)] the person requests the order of nondisclosure
for, or the person has been previously convicted of or placed on
deferred adjudication community supervision for:
(1) [(A)] an offense requiring registration as a sex
offender under Chapter 62, Code of Criminal Procedure;
(2) [(B)] 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; or
(3) [(C)] an offense under Section 19.02, 19.03,
20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal
Code[; or
[(D) any other offense involving family
violence, as defined by Section 71.004, Family Code; or
[(2) the court makes an affirmative finding that the
offense for which the order of nondisclosure is requested involved
family violence, as defined by Section 71.004, Family Code].
SECTION 11. Notwithstanding Section 411.0716(b),
Government Code, the change in law made by this Act to Section
411.072, Government Code, applies only to a person described by
Subsection (a) of that section who was placed on deferred
adjudication community supervision under Subchapter C, Chapter
42A, Code of Criminal Procedure, on or after the effective date of
this Act. A person who was placed on deferred adjudication
community supervision before the effective date of this Act is
governed by the law in effect on the date the person was placed on
deferred adjudication community supervision, and the former law is
continued in effect for that purpose.
SECTION 12. This Act takes effect September 1, 2021.