By: Jones of Harris (Senate Sponsor - Huffman) H.B. No. 3686
(In the Senate - Received from the House May 15, 2023;
May 18, 2023, read first time and referred to Committee on Criminal
Justice; May 19, 2023, reported favorably by the following vote:
Yeas 7, Nays 0; May 19, 2023, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to the automatic expunction of arrest records and files
after certain controlled substance offense charges are dismissed.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 55.01(a), Code of Criminal Procedure, is
amended 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);
(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
(C) convicted of an offense committed before
September 1, 2021, under Section 46.02(a), Penal Code, as that
section existed before that date; 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 mental
health court program created under Chapter 125, Government Code, or
former law, subject to Subsection (a-4);
(c) 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, or a mental health
court program created under Chapter 125, Government Code, or former
law;
(d) the person is charged solely with
an offense under Subchapter D, Chapter 481, Health and Safety Code,
involving the manufacture, delivery, or possession of a controlled
substance and a laboratory analysis of the suspected controlled
substance finds no presence of a controlled substance;
(e) 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
(f) [(e)] 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.
SECTION 2. Section 1a, Article 55.02, Code of Criminal
Procedure, is amended by adding Subsection (a-3) to read as
follows:
(a-3) A trial court dismissing a case following a laboratory
analysis of a suspected controlled substance that finds no presence
of a controlled substance, if the trial court is a district court,
or a district court in the county in which the trial court is
located shall enter an order of expunction for a person entitled to
expunction under Article 55.01(a)(2)(A)(ii)(d) 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-1), Code of Criminal
Procedure, is amended to read as follows:
(b-1) The fees under Subsection (a) shall be waived if the
petitioner is entitled to expunction:
(1) 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; [or]
(2) under Article 55.01(a)(2)(A)(ii)(b) after
successful completion of a mental health court program created
under Chapter 125, Government Code, or former law; or
(3) under Article 55.01(a)(2)(A)(ii)(d).
SECTION 4. (a) This Act applies only to the expunction of
arrest records related to:
(1) a charge for an offense that was dismissed on or
after the effective date of this Act; or
(2) an arrest made on or after the effective date of
this Act.
(b) Expunction for a dismissal or arrest that occurred
before the effective date of this Act is governed by the law in
effect at that time, and the former law is continued in effect for
that purpose.
(c) 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.
(d) For a person who is entitled to expunction under Article
55.01(a)(2)(A)(ii)(d), Code of Criminal Procedure, as amended by
this Act, 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-3), Article 55.02, Code of
Criminal Procedure, as added by this Act, the court shall 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 5. This Act takes effect September 1, 2023.
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