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A BILL TO BE ENTITLED
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AN ACT
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relating to the expunction of records and files relating to a |
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person's arrest. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Articles 55.01(a), (b), and (c), Code of |
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Criminal Procedure, are amended to read as follows: |
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(a) A person who has been placed under a custodial or |
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noncustodial arrest for commission of either a felony or |
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misdemeanor is entitled to have all records and files relating to |
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the arrest expunged if: |
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(1) the person is tried for the offense for which the |
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person was arrested and is: |
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(A) acquitted by the trial court, except as |
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provided by Subsection (c) [of this section]; or |
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(B) convicted and subsequently: |
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(i) pardoned; or |
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(ii) otherwise granted relief on the basis |
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of actual innocence with respect to that offense; or |
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(2) the person has been released and the charge, if |
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any, has not resulted in a final conviction and is no longer pending |
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and there was no court-ordered community supervision under Article |
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42.12 for any offense except for a Class C misdemeanor, provided |
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that [each of the following conditions exist]: |
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(A) regardless of whether any statute of |
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limitations exists for the offense and whether any limitations |
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period for the offense has expired, an indictment or information |
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charging the person with the commission of a felony or misdemeanor |
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offense arising out of the transaction for which the person was |
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arrested: |
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(i) has not been presented against the |
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person at any time following the arrest, and at least 180 days have |
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elapsed from the date of the arrest; or |
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(ii) [for an offense arising out of the
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transaction for which the person was arrested or,] if [an
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indictment or information charging the person with commission of a
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felony was] presented at any time following the arrest, was[, the
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indictment or information has been] dismissed or quashed, and: |
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(a) at least 180 days have elapsed |
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from the date the indictment or information was dismissed or |
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quashed; and |
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(b) [(i) the limitations period
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expired before the date on which a petition for expunction was filed
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under Article 55.02; or
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[(ii)] the court finds that the indictment |
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or information was dismissed or quashed because the person |
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completed a pretrial intervention program authorized under Section |
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76.011, Government Code, or because the presentment had been made |
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because of mistake, false information, or other similar reason |
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indicating absence of probable cause at the time of the dismissal to |
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believe the person committed the offense or because it was void; or |
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(B) prosecution of the person for the offense for |
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which the person was arrested is no longer possible because the |
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limitations period has expired [the person has been released and
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the charge, if any, has not resulted in a final conviction and is no
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longer pending and there was no court ordered community supervision
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under Article 42.12 for any offense other than a Class C
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misdemeanor; and
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[(C) the person has not been convicted of a
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felony in the five years preceding the date of the arrest]. |
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(b) Except as provided by Subsection (c) [of this section], |
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a district court may expunge all records and files relating to the |
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arrest of a person who has been arrested for commission of a felony |
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or misdemeanor under the procedure established under Article 55.02 |
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[of this code] if: |
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(1) the person is: |
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(A) [(1)] tried for the offense for which the |
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person was arrested; |
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(B) [(2)] convicted of the offense; and |
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(C) [(3)] acquitted by the court of criminal |
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appeals or, if the period for granting a petition for discretionary |
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review has expired, by a court of appeals; or |
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(2) an office of the attorney representing the state |
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authorized by law to prosecute the offense for which the person was |
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arrested recommends the expunction to the appropriate district |
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court before the person is tried for the offense, regardless of |
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whether an indictment or information has been presented against the |
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person in relation to the offense. |
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(c) A court may not order the expunction of records and |
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files relating to an arrest for an offense for which a person is |
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subsequently acquitted, whether by the trial court, a court of |
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appeals, or the court of criminal appeals, if the offense for which |
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the person was acquitted arose out of a criminal episode, as defined |
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by Section 3.01, Penal Code, and the person was convicted of or |
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remains subject to prosecution for at least one other offense |
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occurring during the criminal episode. |
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SECTION 2. Article 55.02, Code of Criminal Procedure, is |
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amended by amending Section 1 and adding Section 1a to read as |
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follows: |
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Sec. 1. At the request of the defendant and after notice to |
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the state, the trial court presiding over the case in which the |
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defendant was acquitted, if the trial court is a district court, or |
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a district court in the county in which the trial court is located |
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shall enter an order of expunction for a person entitled to |
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expunction under Article 55.01(a)(1)(A) [article 55.01(a)(1)(a)] |
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not later than the 30th day after the date of the acquittal. Upon |
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acquittal, the trial court shall advise the defendant of the right |
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to expunction. The defendant shall provide to the district court |
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all of the information required in a petition for expunction under |
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Section 2(b). The attorney for the defendant in the case in which |
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the defendant was acquitted, if the defendant was represented by |
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counsel, or the attorney for the state, if the defendant was not |
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represented by counsel, shall prepare the order for the court's |
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signature. |
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Sec. 1a. (a) The trial court presiding over a case in which |
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a defendant is convicted and subsequently pardoned or otherwise |
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granted relief on the basis of actual innocence of the offense of |
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which the defendant was convicted, if the trial court is a district |
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court, or a district court in the county in which the trial court is |
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located shall enter an order of expunction for a person entitled to |
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expunction under Article 55.01(a)(1)(B) not later than the 30th day |
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after the date the court receives notice of the pardon or other |
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grant of relief. The person shall provide to the district court all |
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of the information required in a petition for expunction under |
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Section 2(b). |
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(b) The attorney for the state shall prepare an expunction |
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order under this section for the court's signature. |
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(c) The court shall include in an expunction order under |
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this section a listing of each official, agency, or other entity of |
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this state or political subdivision of this state and each private |
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entity that there is reason to believe has any record or file that |
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is subject to the order. The court shall also provide in an |
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expunction order under this section that the Department of Public |
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Safety and the Texas Department of Criminal Justice shall: |
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(1) return to the court all records and files that are |
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subject to the expunction order; and |
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(2) delete from its public records all index |
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references to the records and files that are subject to the |
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expunction order. |
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(d) The court shall retain all records and files returned to |
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the court under Subsection (c) until the statute of limitations has |
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run for any civil case or proceeding relating to the wrongful |
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imprisonment of the person subject to the expunction order. |
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SECTION 3. Section 2(a), Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) A person who is entitled to expunction of records and |
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files under Article 55.01(a)(2) [55.01(a)] or a person who is |
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eligible for expunction of records and files under Article 55.01(b) |
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may file an ex parte petition for expunction in a district court for |
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the county in which: |
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(1) the petitioner was arrested; or |
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(2) the offense was alleged to have occurred. |
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SECTION 4. Section 3(c), Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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(c) When the order of expunction is final, the clerk of the |
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court shall send a certified copy of the order to the Crime Records |
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Service of the Department of Public Safety and to each official or |
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agency or other governmental entity of this state or of any |
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political subdivision of this state named in [designated by the
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person who is the subject of] the order. The certified copy of the |
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order must be sent by secure electronic mail, electronic |
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transmission, or facsimile transmission or otherwise by certified |
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mail, return receipt requested. In sending the order to a |
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governmental entity named in the order [designated by the person], |
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the clerk may elect to substitute hand delivery for certified mail |
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under this subsection, but the clerk must receive a receipt for that |
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hand-delivered order. |
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SECTION 5. Section 5(a), Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) Except as provided by Subsections (f) and (g), on |
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receipt of the order, each official or agency or other governmental |
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entity named in the order shall: |
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(1) return all records and files that are subject to |
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the expunction order to the court or in cases other than those |
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described by Section 1a, if removal is impracticable, obliterate |
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all portions of the record or file that identify the person who is |
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the subject of the order and notify the court of its action; and |
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(2) delete from its public records all index |
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references to the records and files that are subject to the |
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expunction order. |
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SECTION 6. Article 55.01(a-1), Code of Criminal Procedure, |
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is repealed. |
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SECTION 7. This Act applies to an expunction of arrest |
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records and files for any criminal offense: |
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(1) that occurred before, on, or after the effective |
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date of this Act; or |
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(2) for which a pardon or other relief on the basis of |
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actual innocence was granted before, on, or after the effective |
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date of this Act. |
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SECTION 8. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2011. |