Bill Text: TX HB1012 | 2017-2018 | 85th Legislature | Introduced

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Bill Title: Relating to the expunction of records and files relating to an offense for which a person is arrested.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2017-03-06 - Referred to Criminal Jurisprudence [HB1012 Detail]

Download: Texas-2017-HB1012-Introduced.html

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85R4679 JRR-F
By: Alonzo H.B. No. 1012

A BILL TO BE ENTITLED
AN ACT
relating to the expunction of records and files relating to an
offense for which a person is arrested.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 55.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 55.01. RIGHT TO EXPUNCTION. (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 offense for which the person was arrested
[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, for the offense for which the expunction is sought has been
dismissed or has not resulted in a final conviction for that
offense, the charge [and] is no longer pending, and there was no
court-ordered community supervision under Chapter 42A for that
[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 the [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 person's arrest, and:
(a) at least 30 [180] days have
elapsed from the date of arrest if the offense [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 90 days have [one year
has] elapsed from the date of arrest if the offense [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 offense [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
person's arrest, was dismissed or quashed, and the court finds that
the indictment or information was dismissed or quashed because the
person completed a pretrial intervention program authorized under
Section 76.011, Government Code, 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 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-1) Notwithstanding any other provision of this article,
a person may not expunge offense records and files if the applicable
[relating to an] arrest occurred [that occurs] pursuant to a
warrant issued under Article 42A.751(b).
(a-2) Notwithstanding any other provision of this article,
a person who intentionally or knowingly absconds from the
jurisdiction after being released under Chapter 17 following an
arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or
(c) or Subsection (a)(2)(B) for an expunction of the records and
files relating to that arrest and to the proceedings conducted
under Chapter 17.
(b) Except as provided by Subsection (c), a district court
may expunge all records and files relating to the offense with
respect to [arrest of] a person who has been arrested for commission
of a felony or misdemeanor under the procedure established under
Article 55.02 if:
(1) the person is:
(A) tried for the offense [for which the person
was arrested];
(B) convicted of the offense; and
(C) acquitted by the court of criminal appeals
or, if the period for granting a petition for discretionary review
has expired, by a court of appeals; or
(2) an office of the attorney representing the state
authorized by law to prosecute the offense for which the person was
arrested recommends the expunction to the appropriate district
court before the person is tried for the offense, regardless of
whether an indictment or information has been presented against the
person in relation to the offense.
(c) A court may not order the expunction of records and
files relating to [an arrest for] an offense for which a person is
subsequently acquitted, whether by the trial court, a court of
appeals, or the court of criminal appeals, if the offense for which
the person was acquitted arose out of a criminal episode, as defined
by Section 3.01, Penal Code, and the person was convicted of or
remains subject to prosecution for at least one other offense
occurring during the criminal episode.
(d) A person is entitled to have expunged any information
that identifies the person, including the person's name, address,
date of birth, driver's license number, and social security number,
contained in records and files relating to another person's [the]
arrest or to any ensuing criminal proceedings based on that arrest
[of another person expunged] if:
(1) the information identifying the person asserting
the entitlement to expunction was falsely given by the person
arrested as the arrested person's identifying information without
the consent of the person asserting the entitlement; and
(2) the only reason for the information identifying
the person asserting the entitlement being contained in the offense
[arrest] records and files of the person arrested is that the
information was falsely given by the person arrested as the
arrested person's identifying information.
SECTION 2. Section 2a(b), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(b) The application must be verified, include authenticated
fingerprint records of the applicant, and include the following or
an explanation for why one or more of the following is not included:
(1) the applicant's full name, sex, race, date of
birth, driver's license number, social security number, and address
at the time the person who falsely identified himself or herself as
the applicant was arrested;
(2) the following information regarding the arrest:
(A) the date of arrest;
(B) the offense charged against the person
arrested;
(C) the name of the county or municipality in
which the arrest occurred; and
(D) the name of the arresting agency; and
(3) a statement that:
(A) the applicant is not the person arrested and
for whom the applicable [arrest] records and files were created;
and
(B) the applicant did not give the person
arrested consent to falsely identify himself or herself as the
applicant.
SECTION 3. Section 3(a), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(a) In an order of expunction issued under this article, the
court shall require any state agency that sent information
concerning the offense [arrest] to a central federal depository to
request the depository to return all records and files subject to
the order of expunction. The person who is the subject of the
expunction order or an agency protesting the expunction may appeal
the court's decision in the same manner as in other civil cases.
SECTION 4. Section 4(a-1), Article 55.02, Code of Criminal
Procedure, is amended to read as follows:
(a-1) The court shall provide in its expunction order that
the applicable law enforcement agency and prosecuting attorney may
retain the offense [arrest] records and files of any person who
becomes entitled to an expunction of those records and files based
on the expiration of a period described by Article
55.01(a)(2)(A)(i)(a), (b), or (c), but without the certification of
the prosecuting attorney as described by Article
55.01(a)(2)(A)(i)(d).
SECTION 5. Article 55.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 55.03. EFFECT OF EXPUNCTION. When the order of
expunction is final:
(1) the release, maintenance, dissemination, or use of
the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision (3) [of this
article], the person arrested may deny:
(A) the occurrence of the arrest and any ensuing
criminal proceedings based on the arrest; and
(B) the existence of the expunction order; and
(3) the person arrested or any other person, when
questioned under oath in a criminal proceeding about an offense
[arrest] for which the records have been expunged, may state only
that the matter in question has been expunged.
SECTION 6. Section 1, Article 55.04, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. A person who, [acquires knowledge of an arrest]
while an officer or employee of the state or of any agency or other
entity of the state or any political subdivision of the state,
acquires knowledge of an arrest or of criminal proceedings based on
that arrest and who knows of an order expunging the records and
files relating to the applicable offense [that arrest] commits an
offense if the person [he] knowingly releases, disseminates, or
otherwise uses the records or files.
SECTION 7. This Act applies to an expunction of records and
files relating to any criminal offense that occurred before, on, or
after the effective date of this Act.
SECTION 8. This Act takes effect September 1, 2017.