Bill Text: TX HB351 | 2011-2012 | 82nd Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the expunction of records and files relating to a person's arrest.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB351 Detail]
Download: Texas-2011-HB351-Introduced.html
Bill Title: Relating to the expunction of records and files relating to a person's arrest.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB351 Detail]
Download: Texas-2011-HB351-Introduced.html
82R1309 KEL-F | ||
By: Veasey | H.B. No. 351 |
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relating to the expunction of records and files relating to a | ||
person's arrest. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Articles 55.01(a), (b), and (c), Code of | ||
Criminal Procedure, are 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) [ |
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(B) convicted and subsequently: | ||
(i) pardoned; or | ||
(ii) otherwise granted relief on the basis | ||
of actual innocence with respect to that offense; 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 Article | ||
42.12 for any offense except for a Class C misdemeanor, provided | ||
that [ |
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(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 felony or misdemeanor | ||
offense arising out of the transaction for which the person was | ||
arrested: | ||
(i) has not been presented against the | ||
person at any time following the arrest, and at least 180 days have | ||
elapsed from the date of the arrest; or | ||
(ii) [ |
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(a) at least 180 days have elapsed | ||
from the date the indictment or information was dismissed or | ||
quashed; and | ||
(b) [ |
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or information was dismissed or quashed because the person | ||
completed a pretrial intervention program authorized under Section | ||
76.011, Government Code, 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 it 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 [ |
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(b) Except as provided by Subsection (c) [ |
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a district court may expunge all records and files relating to the | ||
arrest of a person who has been arrested for commission of a felony | ||
or misdemeanor under the procedure established under Article 55.02 | ||
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(1) the person is: | ||
(A) [ |
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person was arrested; | ||
(B) [ |
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(C) [ |
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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. | ||
SECTION 2. Article 55.02, Code of Criminal Procedure, is | ||
amended by amending Section 1 and adding Section 1a to read as | ||
follows: | ||
Sec. 1. At the request of the defendant and after notice to | ||
the state, the trial court presiding over the case in which the | ||
defendant was acquitted, 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)(1)(A) [ |
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not later than the 30th day after the date of the acquittal. Upon | ||
acquittal, the trial court shall advise the defendant of the right | ||
to expunction. The defendant shall provide to the district court | ||
all of the information required in a petition for expunction under | ||
Section 2(b). The attorney for the defendant in the case in which | ||
the defendant was acquitted, if the defendant was represented by | ||
counsel, or the attorney for the state, if the defendant was not | ||
represented by counsel, shall prepare the order for the court's | ||
signature. | ||
Sec. 1a. (a) The trial court presiding over a case in which | ||
a defendant is convicted and subsequently pardoned or otherwise | ||
granted relief on the basis of actual innocence of the offense of | ||
which the defendant was convicted, 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)(1)(B) not later than the 30th day | ||
after the date the court receives notice of the pardon or other | ||
grant of relief. The person shall provide to the district court all | ||
of the information required in a petition for expunction under | ||
Section 2(b). | ||
(b) The attorney for the state shall prepare an expunction | ||
order under this section for the court's signature. | ||
(c) The court shall include in an expunction order under | ||
this section a listing of each official, agency, or other entity of | ||
this state or political subdivision of this state and each private | ||
entity that there is reason to believe has any record or file that | ||
is subject to the order. The court shall also provide in an | ||
expunction order under this section that the Department of Public | ||
Safety and the Texas Department of Criminal Justice shall: | ||
(1) return to the court all records and files that are | ||
subject to the expunction order; and | ||
(2) delete from its public records all index | ||
references to the records and files that are subject to the | ||
expunction order. | ||
(d) The court shall retain all records and files returned to | ||
the court under Subsection (c) until the statute of limitations has | ||
run for any civil case or proceeding relating to the wrongful | ||
imprisonment of the person subject to the expunction order. | ||
SECTION 3. Section 2(a), Article 55.02, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(a) A person who is entitled to expunction of records and | ||
files under Article 55.01(a)(2) [ |
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eligible for expunction of records and files under Article 55.01(b) | ||
may file an ex parte petition for expunction in a district court for | ||
the county in which: | ||
(1) the petitioner was arrested; or | ||
(2) the offense was alleged to have occurred. | ||
SECTION 4. Section 3(c), Article 55.02, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(c) When the order of expunction is final, the clerk of the | ||
court shall send a certified copy of the order to the Crime Records | ||
Service of the Department of Public Safety and to each official or | ||
agency or other governmental entity of this state or of any | ||
political subdivision of this state named in [ |
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order must be sent by secure electronic mail, electronic | ||
transmission, or facsimile transmission or otherwise by certified | ||
mail, return receipt requested. In sending the order to a | ||
governmental entity named in the order [ |
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the clerk may elect to substitute hand delivery for certified mail | ||
under this subsection, but the clerk must receive a receipt for that | ||
hand-delivered order. | ||
SECTION 5. Section 5(a), Article 55.02, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(a) Except as provided by Subsections (f) and (g), on | ||
receipt of the order, each official or agency or other governmental | ||
entity named in the order shall: | ||
(1) return all records and files that are subject to | ||
the expunction order to the court or in cases other than those | ||
described by Section 1a, if removal is impracticable, obliterate | ||
all portions of the record or file that identify the person who is | ||
the subject of the order and notify the court of its action; and | ||
(2) delete from its public records all index | ||
references to the records and files that are subject to the | ||
expunction order. | ||
SECTION 6. Article 55.01(a-1), Code of Criminal Procedure, | ||
is repealed. | ||
SECTION 7. This Act applies to an expunction of arrest | ||
records and files for any criminal offense: | ||
(1) that occurred before, on, or after the effective | ||
date of this Act; or | ||
(2) for which a pardon or other relief on the basis of | ||
actual innocence was granted before, on, or after the effective | ||
date of this Act. | ||
SECTION 8. 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. |