Bill Text: TX HB2318 | 2011-2012 | 82nd Legislature | Introduced


Bill Title: Relating to the right to an expunction of records and files relating to a person's arrest.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2011-03-22 - No action taken in committee [HB2318 Detail]

Download: Texas-2011-HB2318-Introduced.html
  82R9884 KEL-D
 
  By: Kolkhorst H.B. No. 2318
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the right to an expunction of records and files relating
  to a person's arrest.
         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) of this section; or
                     (B)  convicted and subsequently pardoned; or
               (2)  each of the following conditions exist:
                     (A)  an indictment, [or] information, or
  complaint charging the person with the commission of a felony or
  misdemeanor arising out of the transaction for which the person was
  arrested:
                           (i)  has not been presented against the
  person and:
                                 (a)  for an arrest based on a felony,
  the limitations period expired before the date on which a petition
  for expunction was filed under Article 55.02 or, for an arrest based
  on a misdemeanor, at least 180 days have elapsed from the date of
  the arrest; or
                                 (b)  in response to the petition for
  expunction, the court finds by a preponderance of the evidence that
  the indictment, information, or complaint has not been presented
  against the person because of mistake, false information, or other
  similar reason indicating absence of probable cause to believe the
  person committed the offense; or
                           (ii)  has been [for an offense arising out of
  the transaction for which the person was arrested or, if an
  indictment or information charging the person with commission of a
  felony was] presented against the person, but was subsequently [the
  indictment or information has been] dismissed or quashed, and:
                                 (a)  for an arrest based on a felony, 
  [(i)]  the limitations period expired before the date on which a
  petition for expunction was filed under Article 55.02 or, for an
  arrest based on a misdemeanor, at least 180 days have elapsed from
  the date of the arrest; or
                                 (b)  in response to the petition for
  expunction, [(ii)]  the court finds by a preponderance of the
  evidence that the indictment, [or] information, or complaint was
  dismissed or quashed because the person successfully completed a
  pretrial intervention program authorized under Section 76.011,
  Government Code, because the person received a discharge and
  dismissal with respect to the offense under Section 20(a), Article
  42.12, [or] 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,
  information, or complaint [it] was void;
                     (B)  the person has been released and:
                           (i)  the charge, if any, has not resulted in
  a final conviction and is no longer pending; and
                           (ii)  there was no court-ordered [court
  ordered] community supervision under Article 42.12 for any offense
  other than for an offense punishable as a Class C misdemeanor or an
  offense with respect to which the person received a discharge and
  dismissal under Section 20(a), Article 42.12; and
                     (C)  the person has not been convicted of a felony
  in the five years preceding the date of the arrest.
         SECTION 2.  Section 20(a), Article 42.12, Code of Criminal
  Procedure, is amended to read as follows:
         (a)  At any time after the defendant has satisfactorily
  completed one-third of the original community supervision period or
  two years of community supervision, whichever is less, the period
  of community supervision may be reduced or terminated by the
  judge.  On completion of one-half of the original community
  supervision period or two years of community supervision, whichever
  is more, the judge shall review the defendant's record and consider
  whether to reduce or terminate the period of community supervision,
  unless the defendant is delinquent in paying required restitution,
  fines, costs, or fees that the defendant has the ability to pay or
  the defendant has not completed court-ordered counseling or
  treatment.  Before conducting the review, the judge shall notify
  the attorney representing the state and the defendant.  If the judge
  determines that the defendant has failed to satisfactorily fulfill
  the conditions of community supervision, the judge shall advise the
  defendant in writing of the requirements for satisfactorily
  fulfilling those conditions.  Upon the satisfactory fulfillment of
  the conditions of community supervision, and the expiration of the
  period of community supervision, the judge, by order duly entered,
  shall amend or modify the original sentence imposed, if necessary,
  to conform to the community supervision period and shall discharge
  the defendant.  If the judge discharges the defendant under this
  section, the judge may set aside the verdict or permit the defendant
  to withdraw the defendant's plea, and shall dismiss the accusation,
  complaint, information or indictment against the defendant.  The
  defendant[, who] shall thereafter be released from all penalties
  and disabilities resulting from the offense or crime of which the
  defendant has been convicted or to which the defendant has pleaded
  guilty, except that, unless the defendant obtains an expunction of
  the underlying arrest under Chapter 55:
               (1)  proof of the conviction or plea of guilty shall be
  made known to the judge should the defendant again be convicted of
  any criminal offense; and
               (2)  if the defendant is an applicant for a license or
  is a licensee under Chapter 42, Human Resources Code, the Health and
  Human Services Commission may consider the fact that the defendant
  previously has received community supervision under this article in
  issuing, renewing, denying, or revoking a license under that
  chapter.
         SECTION 3.  The change in law made by this Act applies to a
  person seeking expunction of records and files relating to an
  arrest regardless of whether the arrest occurred before, on, or
  after the effective date of this Act.
         SECTION 4.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2011.
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