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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. Article 55.01, Code of Criminal Procedure, is |
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amended by amending Subsections (a), (a-1), (b), and (c) and adding |
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Subsection (a-2) 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 for a reason other than that |
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described by Subparagraph (ii); or |
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(ii) pardoned or otherwise granted relief |
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on the basis of actual innocence with respect to that offense, if |
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the applicable pardon or court order clearly indicates on its face |
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that the pardon or order was granted or rendered on the basis of the |
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person's actual innocence; 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 the offense, unless the offense is a Class C misdemeanor, |
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provided 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 misdemeanor offense |
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based on the person's arrest or charging the person with the |
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commission of any felony offense arising out of the same |
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transaction for which the person was arrested: |
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(i) has not been presented against the |
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person at any time following the arrest, and: |
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(a) at least 180 days have elapsed |
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from the date of arrest if the arrest for which the expunction was |
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sought was for an offense punishable as a Class C misdemeanor and if |
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there was no felony charge arising out of the same transaction for |
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which the person was arrested; |
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(b) at least one year has elapsed from |
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the date of arrest if the arrest for which the expunction was sought |
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was for an offense punishable as a Class B or A misdemeanor and if |
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there was no felony charge arising out of the same transaction for |
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which the person was arrested; |
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(c) at least three years have elapsed |
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from the date of arrest if the arrest for which the expunction was |
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sought was for an offense punishable as a felony or if there was a |
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felony charge arising out of the same transaction for which the |
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person was arrested; or |
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(d) the attorney representing the |
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state certifies that the applicable arrest records and files are |
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not needed for use in any criminal investigation or prosecution, |
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including an investigation or prosecution of another person; 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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[(i)
the limitations period expired before
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the date on which a petition for expunction was filed under Article
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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 the indictment |
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or information [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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(a-1) Notwithstanding any other provision of this article, |
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a person may not expunge records and files relating to an arrest |
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that occurs pursuant to a warrant issued under Section 21, Article |
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42.12 [Subsection (a)(2)(C), a person's conviction of a felony in
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the five years preceding the date of the arrest does not affect the
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person's entitlement to expunction for purposes of an ex parte
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petition filed on behalf of the person by the director of the
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Department of Public Safety under Section 2(e), Article 55.02]. |
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(a-2) Notwithstanding any other provision of this article, |
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a person who intentionally or knowingly absconds from the |
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jurisdiction after being released under Chapter 17 following an |
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arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or |
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(c) or Subsection (a)(2)(B) for an expunction of the records and |
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files relating to that 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 granted relief or |
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pardoned on the basis of actual innocence of the offense of which |
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the defendant was convicted, if the trial court is a district court, |
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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)(ii) not later than the 30th |
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day 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: |
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(1) prepare an expunction order under this section for |
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the court's signature; and |
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(2) notify the Texas Department of Criminal Justice if |
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the person is in the custody of the department. |
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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: |
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(1) the Texas Department of Criminal Justice shall |
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send to the court the documents delivered to the department under |
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Section 8(a), Article 42.09; and |
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(2) the Department of Public Safety and the Texas |
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Department of Criminal Justice shall delete or redact, as |
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appropriate, from their public records all index references to the |
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records and files that are subject to the expunction order. |
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(d) The court shall retain all documents sent to the court |
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under Subsection (c)(1) until the statute of limitations has run |
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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)(1)(B)(i) or 55.01(a)(2) [55.01(a)] or |
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a person who is eligible for expunction of records and files under |
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Article 55.01(b) may file an ex parte petition for expunction in a |
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district court for 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 4, Article 55.02, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 4. (a) If the state establishes that the person who is |
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the subject of an expunction order is still subject to conviction |
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for an offense arising out of the transaction for which the person |
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was arrested because the statute of limitations has not run and |
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there is reasonable cause to believe that the state may proceed |
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against the person for the offense, the court may provide in its |
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expunction order that the law enforcement agency and the |
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prosecuting attorney responsible for investigating the offense may |
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retain any records and files that are necessary to the |
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investigation. |
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(a-1) The court shall provide in its expunction order that |
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the applicable law enforcement agency and prosecuting attorney may |
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retain the arrest records and files of any person who becomes |
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entitled to an expunction of those records and files based on the |
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expiration of a period described by Article 55.01(a)(2)(A)(i)(a), |
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(b), or (c), but without the certification of the prosecuting |
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attorney as described by Article 55.01(a)(2)(A)(i)(d). |
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(a-2) In the case of a person who is the subject of an |
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expunction order on the basis of an acquittal, the court may provide |
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in the expunction order that the law enforcement agency and the |
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prosecuting attorney retain records and files if: |
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(1) the records and files are necessary to conduct a |
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subsequent investigation and prosecution of a person other than the |
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person who is the subject of the expunction order; or |
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(2) the state establishes that the records and files |
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are necessary for use in: |
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(A) another criminal case, including a |
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prosecution, motion to adjudicate or revoke community supervision, |
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parole revocation hearing, mandatory supervision revocation |
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hearing, punishment hearing, or bond hearing; or |
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(B) a civil case, including a civil suit or suit |
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for possession of or access to a child. |
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(b) Unless the person who is the subject of the expunction |
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order is again arrested for or charged with an offense arising out |
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of the transaction for which the person was arrested or unless the |
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court provides for the retention of records and files under |
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Subsection (a-1) or (a-2) [(a) of this section], the provisions of |
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Articles 55.03 and 55.04 [of this code] apply to files and records |
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retained under this section. |
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SECTION 6. 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 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 September 1, 2011. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 351 was passed by the House on May 12, |
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2011, by the following vote: Yeas 141, Nays 2, 2 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 351 on May 27, 2011, by the following vote: Yeas 138, Nays 0, 3 |
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present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 351 was passed by the Senate, with |
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amendments, on May 25, 2011, by the following vote: Yeas 31, Nays |
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0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |