Bill Text: TX SB1874 | 2015-2016 | 84th Legislature | Introduced

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Bill Title: Relating to accessing criminal history record information and other records of involvement in the criminal justice system; authorizing fees; authorizing a civil penalty; creating criminal offenses.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2015-03-25 - Referred to Criminal Justice [SB1874 Detail]

Download: Texas-2015-SB1874-Introduced.html

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84R8785 JSC-F
By: Whitmire S.B. No. 1874

A BILL TO BE ENTITLED
AN ACT
relating to accessing criminal history record information and other
records of involvement in the criminal justice system; authorizing
fees; authorizing a civil penalty; creating criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) This Act may be cited as the Modern
Electronic Records in Texas Act or the MERIT Act.
(b) The legislature finds that:
(1) Texas has an extensive program for sharing
information concerning criminal activity among thousands of
agencies;
(2) some criminal history record information is
confidential and unavailable to the public;
(3) public access to records that identify a person's
involvement in criminal activity is vital to public safety, but
some privacy is also vital to public safety;
(4) criminal records effectively punish people by
limiting opportunities for employment, housing, education, credit,
and other essential items;
(5) recidivism is more likely, and rehabilitation less
likely, when criminal history record information is published; and
(6) the state, and not private data miners, must
determine what punishment or publication is appropriate.
Consequently this chapter states the legislature's judgment as to
what degree of privacy will best promote public safety in the
digital age.
(c) This Act is intended to:
(1) define what criminal history record information
may be accessed by agencies and the public;
(2) remove financial incentive for data miners to
publish nonconviction records on the Internet; and
(3) establish a prompt and efficient means of
correcting, sealing, and expunging certain criminal history record
information.
SECTION 2. The heading to Chapter 60, Code of Criminal
Procedure, is amended to read as follows:
CHAPTER 60. CRIMINAL HISTORY RECORD COLLECTION [SYSTEM]
SECTION 3. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 60A to read as follows:
CHAPTER 60A. CRIMINAL HISTORY RECORD ACCESS
SUBCHAPTER A. GENERAL PROVISIONS
Art. 60A.01. DEFINITIONS. (a) In this chapter:
(1) "Criminal history record information" means
information collected about a person by a criminal justice agency
that consists of identifiable descriptions and notations of
arrests, citations, detentions, indictments, informations, and
other formal criminal charges and their dispositions. The term
does not include:
(A) identification information, including
fingerprint records, to the extent that the identification
information does not indicate involvement of the person in the
criminal justice system; or
(B) driving record information maintained by the
department under Subchapter C, Chapter 521, Transportation Code.
(2) "Data miner" means any private person who collects
government information for the purpose of reselling that
information to others.
(3) "Deferred adjudication" means:
(A) deferred adjudication community supervision
under Section 5, Article 42.12;
(B) placement on probation for a deferred
disposition under Article 45.051; or
(C) any other disposition in which:
(i) the defendant enters a plea of guilty or
nolo contendere;
(ii) the judge places the person under the
supervision of the court or an officer under the supervision of the
court;
(iii) at the end of the period of
supervision or probation the judge does not enter a judgment of
conviction or vacates a judgment of conviction previously entered;
and
(iv) at the end of the period of supervision
or probation the judge dismisses the proceedings and discharges the
defendant.
(4) "Department" means the Department of Public
Safety.
(5) "Expunge" and "expunction" mean the physical
destruction or alteration of records so that no possibility exists
that any person could use the records to identify a particular
person as having been accused of involvement in criminal activity.
(6) "Nonconviction records" means criminal history
record information that does not include a disposition by
conviction or deferred adjudication, including records of arrest,
citation, detention, charges, and court proceedings where no
disposition by conviction or deferred adjudication occurs.
(7) "Office of court administration" means the Office
of Court Administration of the Texas Judicial System.
(8) "Record" means any writing or photograph,
including:
(A) any letters, words, or numbers or their
equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation; and
(B) still photographs, x-ray films, videotapes,
and motion pictures set down by any method listed in Paragraph (A).
(9) "Seal" means a procedure by which state and local
agencies may retain criminal history record information but are
required to withhold that information from public access.
(10) "Sensitive service agency" means a governmental
or nongovernmental agency, other than a criminal justice agency,
that has a compelling reason to access sealed records.
(b) A term that is used in this chapter but is not defined by
Subsection (a) has the meaning assigned by Chapter 60.
Art. 60A.02. WAIVER OF RIGHTS CONCERNING CRIMINAL RECORDS.
An explicit or implicit waiver of any right to seal, expunge, or
correct criminal history records under this chapter is not
effective unless:
(1) the waiver is written in the primary language of
the waiving party;
(2) the waiver contains a warning that criminal
history record information that cannot be sealed, expunged, or
corrected may have serious consequences for the waiving party's
future employment, education, housing, and credit;
(3) the waiver contains a recommendation that the
waiving party consult an attorney before agreeing to the waiver,
and describes the waiving party's options for consulting an
attorney, including the option to seek appointed counsel under
Article 1.051 or 26.04; and
(4) the content of the written waiver, including the
dangers and disadvantages of waiving rights under this chapter, is
discussed orally with the waiving party by a qualified person who
attests to the discussion in the waiver.
SUBCHAPTER B. DEPARTMENT OF PUBLIC SAFETY: DISSEMINATION
OF AND ACCESS TO RECORDS
Art. 60A.11. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION.
(a) A criminal justice agency may access any criminal history
record information necessary to:
(1) conduct any activity included in the
administration of criminal justice; or
(2) screen applicants for employment with a criminal
justice agency.
(b) A sensitive service agency may access all conviction and
deferred adjudication records, except for records of Class C
misdemeanors, maintained by the department, whether sealed or
unsealed, for the purpose for which access was granted to the
agency.
(c) Any person may access for any purpose:
(1) all records of convictions, other than for a Class
C misdemeanor;
(2) all records of deferred adjudications, other than
deferred dispositions granted for a Class C misdemeanor, that are
not sealed;
(3) all nonconviction records, including records of
arrests, citations, detentions, charges, and court proceedings not
ending in conviction, that:
(A) a criminal justice agency chooses to make
available under this chapter and Section 552.108, Government Code;
or
(B) a judicial agency chooses to make available
under the applicable court rules and this chapter.
(d) Any individual, or that individual's attorney or other
legal representative acting in a fiduciary capacity, may access any
criminal history record information identifying that individual,
for any purpose.
Art. 60A.12. ACCESS FEES. (a) The department is the only
agency authorized to charge a fee for access to criminal history
record information. A state or local agency other than the
department may not charge a fee for providing access to criminal
history record information.
(b) The department may not charge a fee to provide criminal
history record information in response to an inquiry from:
(1) a criminal justice agency;
(2) the office of capital writs; or
(3) an appointed defense counsel who affirms that the
information is needed to represent an indigent defendant.
(c) The department may charge a fee of:
(1) $10 for each public inquiry for criminal history
record information on a person that is processed only on the basis
of the person's name, unless the inquiry is submitted
electronically, in which event the fee is $1;
(2) $15 for each public inquiry for criminal history
record information on a person that is processed on the basis of a
fingerprint comparison search; and
(3) an amount sufficient to recover all costs directly
or indirectly incurred by the department in providing accurate,
relevant, and updated criminal history record information in
response to any inquiry for criminal history record information
from a data miner.
Art. 60A.13. NATURE OF RECORDS. The department at all times
retains ownership of data maintained in the department's records,
including records containing criminal history record information,
and may only license the use of the department's data for a period
of not more than 90 days, unless the department specifies another
period by rule.
Art. 60A.14. INTERNET WEBSITE. The department shall
consult with the office of court administration and the attorney
general as the department considers necessary to create and
maintain an Internet website that:
(1) uses electronic means to facilitate access to all
criminal history record information described in this chapter;
(2) provides access to this chapter and all rules
adopted under this chapter;
(3) effectively communicates how a person may access,
seal, and expunge records under this chapter without legal
representation;
(4) notifies the person who accesses criminal history
record information of applicable criminal penalties; and
(5) contains the following warning:
"CRIMINAL HISTORY RECORDS CHANGE OVER TIME. Records often
change due to further investigation of facts, reporting errors, and
decisions made by prosecutors and judges. Check the date on each
record obtained from this website. The older the date, the less
trustworthy the record."
Art. 60A.15. RULES. (a) The department shall adopt rules
to administer this chapter.
(b) Rules adopted under this article must provide for:
(1) a uniform method of requesting criminal history
record information from the department;
(2) the methods and formats for dissemination of
criminal history record information;
(3) security measures and policies that are designed
to guard against unauthorized release or dissemination of criminal
history record information that is maintained by the department;
(4) a uniform method of requesting that the department
seal the department's records and notifying other agencies to seal
records possessed by the agency under Subchapter G; and
(5) the transmission of information among agencies by
electronic means whenever possible and in accordance with record
transmission procedures adopted by the office of court
administration.
(c) The department may adopt rules requiring a person
requesting criminal history record information to submit any
specific information considered necessary by the department.
SUBCHAPTER C. ACCESS GRANTED BY DEPARTMENT TO CERTAIN
SENSITIVE SERVICE AGENCIES
Art. 60A.21. ACCESS PROVIDED TO SENSITIVE SERVICE AGENCIES.
(a) Sensitive service agencies may access deferred adjudication
records from the department even if those records are subject to an
order of sealing under Subchapter G.
(b) The following are considered to be sensitive service
agencies under this chapter:
(1) the State Board for Educator Certification;
(2) a school district, charter school, public school,
private school, or regional education service center;
(3) the Texas Medical Board;
(4) the Texas School for the Blind and Visually
Impaired;
(5) the Texas Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name
change under Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Department of Juvenile Justice;
(11) the Department of Assistive and Rehabilitative
Services;
(12) the Department of State Health Services, a local
mental health service, a local intellectual and developmental
disability authority, or a community center providing services to
persons with mental illness or intellectual disabilities;
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Texas Board of Nursing;
(16) a safe house providing shelter to children in
harmful situations;
(17) a public or nonprofit hospital or hospital
district, or a facility defined by Section 250.001, Health and
Safety Code;
(18) the securities commissioner, the banking
commissioner, the savings and mortgage lending commissioner, the
consumer credit commissioner, and the credit union commissioner;
(19) the Texas State Board of Public Accountancy;
(20) the Texas Department of Licensing and Regulation;
(21) the Health and Human Services Commission;
(22) the Department of Aging and Disability Services;
(23) the Texas Education Agency;
(24) the Judicial Branch Certification Commission;
(25) every county clerk's office in relation to a
proceeding for the appointment of a guardian under Title 3, Estates
Code;
(26) the Department of Information Resources;
(27) the Court Reporters Certification Advisory
Board;
(28) the Texas Department of Insurance;
(29) the Teacher Retirement System of Texas;
(30) the Texas State Board of Pharmacy; and
(31) contractors and subcontractors only for purposes
of compliance with an explicit term addressing criminal history
record information that is stated in a contract with a special
services agency.
(c) The department by rule may designate an additional
agency as a sensitive services agency if:
(1) the agency primarily serves vulnerable
populations and has a demonstrated need for access to the
information; and
(2) the senate and house committees with jurisdiction
over criminal justice issues consent to the addition.
Art. 60A.22. WRITTEN PROCEDURES. A sensitive service
agency may not access sealed records unless the agency adopts
written procedures specifying how criminal history record
information may disqualify an applicant from employment,
licensure, housing, or educational benefit. Each procedure must
state the manner in which an agency official will determine on a
case-by-case basis whether the applicant is qualified based on
factors that include:
(1) the specific responsibilities that the applicant
seeks to undertake;
(2) the nature and seriousness of each offense
committed by the applicant;
(3) the period that elapsed between each offense and
the agency decision on the application; and
(4) the efforts made by the applicant toward
rehabilitation.
SUBCHAPTER D. PRIVATE ENTITIES
Art. 60A.31. ACCESS PROVIDED BY DATA MINERS; PROHIBITED
ACTS. (a) A person may directly or indirectly purchase criminal
history record information from the department and resell that
information subject to any license granted by the department.
(b) A person may not directly or indirectly cause the
purchase or sale of criminal history record information that is not
subject to a department license of use.
Art. 60A.32. DUTIES OF DATA MINERS. (a) Each person who
purchases from the department criminal history record information
for resale to others shall destroy all records of the information,
including all paper copies and all copies that may be distributed by
electronic means, within the person's possession or control with
respect to which the person has received notice that:
(1) the department or a court issued an order of
sealing covering the information under Subchapter G;
(2) a court issued an order of expunction covering the
information under Subchapter H; or
(3) a period of at least 90 days, or another period
prescribed by department rule, has passed since the department
provided the information.
(b) Each person who purchases from the department criminal
history record information for resale to others must:
(1) maintain an e-mail account to receive electronic
service of orders issued in response to petitions for expunction or
nondisclosure under this chapter;
(2) provide the e-mail address described by
Subdivision (1) to the department and to the district clerk in every
county;
(3) monitor the e-mail account described by
Subdivision (1) at least once each week; and
(4) comply with each order of expunction and with each
order of sealing issued under this chapter.
SUBCHAPTER E. LOCAL AGENCIES
Art. 60A.41. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION
PROVIDED BY OTHER GOVERNMENT AGENCIES. (a) A judicial or executive
agency, other than the department, may permit public access to
criminal history record information that the agency creates and
maintains in the regular course of performing the agency's official
duties, subject to the requirements of this chapter.
(b) An agency other than the department may not directly or
indirectly charge any person any fee for providing access to
criminal history record information.
Art. 60A.42. ACCESS TO NONCONVICTION INFORMATION PROVIDED
BY OTHER GOVERNMENT AGENCIES. An agency other than the department
may provide public access to nonconviction criminal history record
information only if:
(1) the agency warns the person accessing the records
that state law imposes civil and criminal penalties on anyone who
knowingly causes nonconviction records to be purchased or sold;
(2) the agency provides access to records:
(A) only at the agency's physical office, and not
remotely by electronic means;
(B) for one individual at a time, and not in bulk;
(C) in a format that omits the subject's social
security number and other personal identifying information
commonly sought by identity thieves; and
(D) in accordance with rules prescribed by the
office of court administration for judicial agencies, and by the
attorney general for executive agencies, to prevent the bulk
dissemination of searchable nonconviction records.
Art. 60A.43. DUTIES OF AGENCY MAKING CRIMINAL HISTORY
RECORD INFORMATION AND NONCONVICTION RECORDS AVAILABLE TO PUBLIC.
Each agency that chooses to make criminal history record
information or nonconviction records available to the public must:
(1) maintain an e-mail account to receive electronic
service of hearings and orders issued in response to petitions for
expunction or sealing under this chapter;
(2) provide the e-mail address described by
Subdivision (1) to the department and to the district clerk in each
county within the agency's jurisdiction;
(3) monitor the e-mail account described by
Subdivision (1) at least once each week; and
(4) comply with each order of expunction and with each
order of sealing issued under this chapter.
SUBCHAPTER F. PROHIBITED ACTS; OFFENSES; CIVIL PENALTIES
Art. 60A.51. PROHIBITED ACTS. (a) A person may not
directly or indirectly purchase or sell any form of public access to
any nonconviction record for any amount of money or other valuable
consideration.
(b) A person who has accessed criminal history record
information for one purpose may not use that information for a
different purpose, or make the information available to different
persons, unless specifically authorized by statute, department
rule, or court order.
(c) A person may not confirm the existence or absence of
criminal history record information to any person who is not
authorized to access the information.
Art. 60A.52. BULK DISTRIBUTION PROHIBITED. (a) The
department may not sell or otherwise provide public access to
criminal history record information in any bulk form.
(b) The department may sell the means to access one
individual's record for a single request, and prominently display
the date that the department provided each record.
Art. 60A.53. SUSPENSION OF ACCESS BY DEPARTMENT. (a) The
department shall suspend a person's access to criminal history
record information maintained by the department if the person
violates or fails to comply with:
(1) rules adopted by the department under this
chapter; or
(2) rules adopted by the Federal Bureau of
Investigation that relate to the dissemination or use of criminal
history record information.
(b) The department shall set the length of a person's
suspension under this article for a period calculated to ensure the
person's complete compliance with department rules in the future.
Art. 60A.54. OFFENSE: UNAUTHORIZED USE OR DISCLOSURE. (a)
A person commits an offense if the person knowingly:
(1) obtains criminal history record information in a
manner other than as authorized by this chapter;
(2) uses criminal history record information for a
purpose other than as authorized by this chapter; or
(3) discloses criminal history record information to a
person who is not entitled to the information under this chapter or
department rules.
(b) An offense under this article is a Class B misdemeanor,
except that the offense is a felony of the second degree if the
offense is committed for remuneration or the promise of
remuneration.
Art. 60A.55. OFFENSE: PURCHASE OR SALE OF NONCONVICTION
RECORDS. (a) A person commits an offense if the person knowingly
purchases or sells nonconviction records.
(b) An offense under this article is a felony of the second
degree.
(c) For purposes of this article, a person purchases or
sells access to nonconviction records if the person causes or
employs another to cause the content of more than 10 nonconviction
records to be made available by any form of search criteria in
direct or indirect exchange for money or other valuable
consideration, or for the promise of anything of value.
Art. 60A.56. CIVIL LIABILITY. (a) A person may not:
(1) obtain criminal history records in a manner other
than as authorized by this chapter;
(2) use the records for a purpose other than as
authorized by this chapter; or
(3) disclose the information to a person who is not
entitled to the information under this chapter or department rules.
(b) A person who violates Subsection (a) is liable to each
subject of the criminal history record information for:
(1) a civil penalty of $1,000; and
(2) actual damages sustained as a result of the
violation.
(c) A person who prevails in an action brought under this
article is entitled to recover court costs and reasonable
attorney's fees.
SUBCHAPTER G. LIMITING ACCESS BY SEALING
Art. 60A.61. AUTOMATIC SEALING OF NONCONVICTION RECORDS
AFTER CHARGES ARE REJECTED OR DISMISSED. (a) Each time the state
files a document with a municipal, justice, county, or district
clerk in which the state dismisses or rejects a case, complaint,
information, or indictment, the clerk shall transmit to the
department:
(1) the state's filed document; and
(2) any other information that the department requires
to seal the records associated with the dismissed or rejected
charges.
(b) The clerk shall transmit by electronic means all
information required by the department in a single transmission not
later than the fifth business day after the date the document is
filed under Subsection (a).
(c) Not later than the 10th business day after the date a
document described by Subsection (a) is filed, the state may
prevent automatic sealing of nonconviction records under this
article by notifying the department that the state intends to
pursue different charges arising from the same incident.
(d) Not earlier than the 11th business day but not later
than the 15th business day after the date the department receives
notice of a document filed under Subsection (a), if the department
has not received notice from the state under Subsection (c), the
department shall cause all records related to the charge and the
arrest or citation to be automatically sealed under Article 60A.64.
Art. 60A.62. COURT SEALING WHEN CHARGES DELAYED. (a) A
person who has been arrested or issued a citation for commission of
an offense may make a motion to seal records related to the arrest
or citation if no information or indictment is pending, and all
complaints that produced the arrest or citation:
(1) are pending; or
(2) were dismissed or rejected.
(b) A motion under Subsection (a) must be made in the court
where a charge based on the arrest or citation was last pending. A
cost or fee is not required to file or adjudicate the motion.
(c) The court shall notify the state of a hearing on the
motion not later than the fifth business day before the date of the
hearing. If the state files an indictment or information before the
date of the hearing, the court shall deny the motion without a
hearing.
(d) On hearing, the court shall order records of any arrest
or citation subject to delayed, rejected, or dismissed charges to
be sealed if:
(1) the court finds sealing the records to be in the
best interest of justice; or
(2) the following period has passed after the arrest
or citation with no information or indictment pending:
(A) three months if the only offenses charged by
complaint on arrest or citation were Class C misdemeanors;
(B) six months if a Class B or A misdemeanor was
charged by complaint on arrest, but no felony was charged; and
(C) one year if any felony was charged by
complaint on arrest.
(e) The clerk shall forward to the department by electronic
means each order sealing records under this article. On receiving
an order sealing records, the department shall cause all records
related to the charge and the arrest or citation to be sealed as
provided in the court's order.
(f) The office of court administration shall prescribe and
publish on its Internet website a form that courts may use to issue
orders under this article.
Art. 60A.63. ORDER OF DISCHARGE AND DISMISSAL OF DEFERRED
ADJUDICATION. (a) Any time after expiration of a period of
deferred adjudication or probation, the defendant may file a motion
under the criminal cause number to seek an order of discharge and
dismissal. A cost or fee is not required to file or adjudicate the
motion.
(b) If the defendant is eligible for an order of discharge
and dismissal, the court shall promptly grant a motion under this
subchapter.
(c) The effective date of each discharge and dismissal for
purposes of this subchapter is the date that the period of deferred
adjudication or probation expired or was successfully completed by
the defendant, not the date on which the court entered the order.
The effective date must be written on each order of discharge and
dismissal.
(d) Each order of discharge and dismissal shall state:
"If the defendant meets all requirements for automatic
sealing of criminal history record information under Subchapter G,
Chapter 60A, Code of Criminal Procedure, the defendant's records of
the offenses at issue in this cause shall be sealed."
(e) The court clerk shall provide one certified copy of each
order of discharge and dismissal to the defendant without charge.
Art. 60A.64. AUTOMATIC SEALING AFTER DISCHARGE AND
DISMISSAL. (a) A defendant placed on deferred adjudication is
eligible for automatic sealing under this subchapter:
(1) on:
(A) the effective date of the discharge and
dismissal if the offense for which the person was placed on deferred
adjudication was a misdemeanor other than a misdemeanor described
in Paragraph (B);
(B) the second anniversary of the effective date
of the discharge and dismissal if the offense for which the person
was placed on deferred adjudication was a misdemeanor offense
involving violence under Chapter 20, 21, 22, 25, 42, or 46, Penal
Code; or
(C) the fifth anniversary of the effective date
of the discharge and dismissal if the offense for which the person
was placed on deferred adjudication was a felony; and
(2) provided that the defendant:
(A) was not convicted or placed on deferred
adjudication for any offense during the entire period of deferred
adjudication and waiting period under Subdivision (1), other than
an offense under the Transportation Code punishable by fine only;
and
(B) has never been convicted or placed on
deferred adjudication for:
(i) an offense requiring registration as a
sex offender under Chapter 62;
(ii) an offense under Section 20.04, Penal
Code, regardless of whether the offense is a reportable conviction
or adjudication for purposes of Chapter 62;
(iii) an offense under Section 19.02,
19.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal Code; or
(iv) any felony offense involving family
violence, as defined by Section 71.004, Family Code.
(b) If the agency responsible for a defendant's community
supervision or probation concludes that the defendant is eligible
for automatic sealing under this article, the agency shall notify
the state.
(c) If the state objects to automatic sealing and, not later
than the 10th business day after the date the state receives notice
that the defendant is eligible for automatic sealing, notifies the
agency responsible for the defendant's supervision or probation of
the objection, the records may not be automatically sealed.
(d) If the agency responsible for the defendant's
supervision or probation does not receive a timely objection from
the state as described by Subsection (c), the agency shall, on or
after the 11th business day after the date the agency notifies the
state under Subsection (b):
(1) promptly notify the department that the defendant
is eligible for automatic sealing; and
(2) provide the department with a copy of the order of
discharge and dismissal and all information regarding the criminal
history record information to be sealed that the department
requires.
(e) On receipt of an order of discharge and dismissal and
the appropriate agency's statement that the defendant is eligible
for automatic sealing, the department shall cause to be sealed all
criminal history records related to the offense for which the
person was placed on deferred adjudication.
Art. 60A.65. COURT SEALING DEFERRED ADJUDICATION RECORDS BY
MOTION. (a) If the agency responsible for the defendant's
supervision or probation declines to automatically seal criminal
history record information under Article 60A.64, the defendant may
file a motion to seal the records.
(b) A motion under this article must be filed under the
criminal cause number and in the court that placed the defendant on
deferred adjudication.
(c) In ruling on a motion under this article, the court must
make a finding as to whether the defendant is eligible for record
sealing under Article 60A.64. If the court does not make a finding
that the defendant is eligible, the court may not order the records
sealed.
(d) If the defendant is eligible for record sealing under
Article 60A.64, the court shall decide whether to order the records
sealed based on the court's determination of the best interest of
justice.
(e) In response to a motion under this article, the court
shall enter an order sealing the deferred adjudication records or
deny the motion. If the court orders records sealed, the clerk
shall electronically transmit the order to the department.
(f) Not later than the 10th business day after the date the
department receives an order under this article, the department
shall cause the records to be sealed as provided in the order.
Art. 60A.66. UNSEALING OF DEFERRED ADJUDICATION RECORDS BY
MOTION. (a) At any time before the second anniversary of the date
criminal history record information is sealed under Article 60A.64
or 60A.65, the state may file a motion to unseal the records.
(b) A motion under this article must be filed under the
criminal cause number and in the court that placed the defendant on
deferred adjudication.
(c) In ruling on a motion under this article, the court
shall determine whether the defendant is eligible for record
sealing under Article 60A.64. If the court determines the
defendant is ineligible under that article, the court may not order
the records to remain sealed.
(d) If the defendant is eligible for record sealing under
Article 60A.64, the court shall decide whether to order the records
unsealed based on the court's determination of the best interest of
justice.
(e) In response to a motion under this article, the court
shall enter an order unsealing the deferred adjudication records or
an order directing the records to remain sealed. If the court
orders sealed records to be unsealed, the clerk shall
electronically transmit the order to the department.
(f) Not later than the 10th business day after the date the
department receives an order under this article, the department
shall cause the records to be unsealed as provided in the order.
Art. 60A.67. SEALING PROCEDURE AND EFFECT. (a) If the
department is required to cause records to be sealed under this
subchapter, not later than the 10th business day after the date that
the department receives the information that the department
requires to seal records, the department shall:
(1) seal the department's own records;
(2) prepare a document:
(A) stating: "By order of court and operation of
Subchapter G, Chapter 60A, Code of Criminal Procedure, please take
notice that within 30 days, you must take all actions necessary to
prevent public access to the following records in your custody or
control."; and
(B) indicating all of the criminal history record
information needing to be sealed; and
(3) transmit by electronic means the document
described by Subdivision (2) to each:
(A) magistrate, court, prosecuting attorney,
correctional facility, central state depository of criminal
records, and any other official or agency or other entity of this
state or of a political subdivision of this state;
(B) central federal depository of criminal
records if there is reason to believe that depository has criminal
history record information that is the subject of the order;
(C) private entity that purchases criminal
history record information from the department or that otherwise is
likely to have criminal history record information that is subject
to the order; and
(D) e-mail address provided under Articles
60A.32 and 60A.43.
(b) Not later than the 30th business day after the date of
receipt of a sealing notice described by Subsection (a)(2), each
person receiving notice shall seal all criminal history record
information maintained by the person that is described in the
sealing notice.
Art. 60A.68. EFFECT OF SEALING. (a) A person whose
criminal history record information is sealed under this subchapter
is not required in any application for employment, education,
housing, licensure, or credit to state that the person has been the
subject of any criminal proceeding related to the sealed records.
(b) A person may not discriminate against an applicant for
employment, education, housing, licensure, or credit on the ground
that the applicant withheld information as authorized by Subsection
(a).
(c) A criminal justice agency or sensitive service agency
may inquire about the events that produced the sealed records and
use information about the events giving rise to the record as one
factor, but not the sole factor, in making an employment,
education, licensing, or housing decision.
Art. 60A.69. FORM. The office of court administration
shall prescribe and publish forms by electronic means that courts
may use to issue orders under this subchapter.
SUBCHAPTER H. LIMITING ACCESS BY EXPUNCTION
Art. 60A.71. RIGHT TO EXPUNCTION. (a) A person who has
been placed under a custodial or noncustodial arrest for commission
of a felony or misdemeanor or issued a citation for the commission
of a misdemeanor is entitled to have all records relating to the
arrest or citation expunged if:
(1) the person is tried for the offense for which the
person was arrested or issued a citation and is acquitted by a trial
or appellate court, and if acquitted by a court of appeals, the
period for filing a petition for discretionary review has expired;
(2) the person is convicted and subsequently granted
judicial or executive relief from conviction if the order granting
relief states that the order is rendered on the basis of the
person's actual innocence;
(3) the person is convicted and subsequently pardoned;
(4) following the arrest or citation, the person was
charged with a Class C misdemeanor for which the person was granted
a discharge and dismissal;
(5) the state certifies that the records are not
needed for use in any criminal investigation or prosecution,
including an investigation or prosecution of another person;
(6) an information or indictment was dismissed or
quashed following arrest, no other information or indictment is
pending from the arrest, and the court finds that the indictment or
information was dismissed or quashed because:
(A) the person completed a pretrial intervention
program authorized under Section 76.011, Government Code;
(B) the presentment of the indictment or
information 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
(C) the indictment or information was void; or
(7) prosecution of the person for the offense for
which the person was arrested or issued a citation is no longer
possible because the limitations period has expired.
(b) When some but not all charges arising from an arrest or
citation qualify for expunction under Subsection (a), the right to
expunction extends to all records of the qualifying charges, but
not to any arrest, citation, or charge that does not qualify.
(c) If a defendant becomes eligible for records expunction
while represented by counsel appointed under Article 26.04, counsel
shall:
(1) advise the defendant of the effect of expunction
on civil and criminal proceedings and of the appropriate time to
seek expunction; and
(2) petition for expunction as part of appointed
counsel's duties on request of the defendant.
Art. 60A.72. DISTRICT COURT DECIDES EXPUNCTIONS. (a) The
following persons may file an ex parte civil action seeking
expunction under this subchapter:
(1) a person who claims a right to expunction; or
(2) if the person is deceased, the deceased person's
grandparent, parent, spouse, adult brother, adult sister, or adult
child.
(b) An expunction petition must be filed in the district
court for the county in which:
(1) the arrest or citation at issue occurred; or
(2) the offense at issue was alleged to have occurred.
(c) An expunction petition must include:
(1) the following identification information for the
person claiming the right to expunction:
(A) full name;
(B) gender;
(C) race;
(D) date of birth;
(E) driver's license number, if any;
(F) social security number, if any; and
(G) address at the time of the arrest or
citation, if known;
(2) the following arrest or citation information:
(A) the date the person was arrested or the
citation was issued;
(B) whether an arrest was custodial or
noncustodial;
(C) the name of the arresting agency or agency
issuing the citation;
(D) the name of the county where the arrest or
issuance of a citation occurred; and
(E) the name of the municipality where the arrest
or issuance of a citation occurred, if any;
(3) for each offense charged in connection with the
arrest or citation:
(A) the offense charged;
(B) the date that each charged offense is alleged
to have occurred; and
(C) the court and case number for each charged
offense; and
(4) which rights to expunction apply to each charge
and each arrest or citation, as applicable.
(d) On filing of each expunction petition, the court's clerk
shall:
(1) seal from public access all of its files in the
expunction case that identify the petitioner;
(2) consult the court coordinator of the assigned
court and set a hearing date for each petition that is not earlier
than the 30th calendar day after the date of the petition but not
later than the 60th calendar day after the date of the petition; and
(3) not later than the next business day after the date
the expunction petition is filed, electronically transmit a copy of
the petition and the hearing date, time, and place to:
(A) the district attorney;
(B) the county attorney;
(C) the department; and
(D) any criminal justice agency that has
requested electronic notice of expunction proceedings from the
court's clerk.
(e) The court may grant any expunction petition at any time
without a hearing if the district or county attorney agrees in
writing that the petition should be granted.
(f) At each expunction hearing the district court shall
decide:
(1) whether the petitioner has proved a right to
expunction by a preponderance of the evidence; and
(2) whether the county or district attorney has proved
by a preponderance of the evidence that due to ongoing criminal,
civil, or administrative proceedings, exceptions to expunction
should be made, each of which must specify:
(A) what records may be maintained;
(B) which criminal justice agencies may maintain
the records; and
(C) for what period each criminal justice agency
may maintain each record before destroying the record in compliance
with the expunction order.
(g) Not later than the third business day after the date of
an expunction hearing, the district court shall enter an order
directing or denying expunction. Each order granting expunction
shall state:
(1) the information identifying the person whose
records are to be expunged required under Subsection (c)(1);
(2) the incident number the department assigned the
individual incident of arrest under Article 60.07(b)(1), if any;
(3) which arrests or citations listed in Subsection
(c)(2) are expunged;
(4) which charged offenses listed in Subsection (c)(3)
are expunged; and
(5) any expunction limitations proved necessary by the
county or district attorney.
(h) The person who is the subject of the expunction order or
any agency receiving the expunction order may appeal the court's
decision in the same manner as in any other civil case.
(i) Immediately on entry of each expunction order, the
district court clerk shall:
(1) provide without charge one certified paper copy of
the order to the petitioner;
(2) transmit a copy of the order by electronic means to
the department's Crime Records Service;
(3) transmit a copy of the order by electronic means to
each person and agency that has provided an e-mail address to the
district clerk under Articles 60A.32 and 60A.43; and
(4) on the 30th calendar day after the date of the
expunction order, expunge the court's entire case file.
Art. 60A.73. EXPUNCTION PROCEDURE AND EFFECT; CRIMINAL
PENALTIES. (a) Not later than the 10th business day after the date
the department receives an expunction order from a district clerk,
the department must expunge all charge records and all arrest or
citation records as ordered.
(b) Not later than the 30th calendar day after the date a
person or agency receives an expunction order from a district
clerk, the person or agency shall expunge all charge records and
arrest or citation records in the possession of the person or
agency, as ordered.
(c) A record is expunged only if it is physically or
electronically altered in a way that renders impossible any use of
the record to connect the person identified in the order as
connected to the expunged arrest, citation, or charge.
Art. 60A.74. OFFENSE: FAILURE TO DESTROY RECORDS SUBJECT TO
ORDER OF EXPUNCTION. (a) A person who knowingly fails to destroy
identifying portions of a record ordered expunged under this
chapter commits an offense.
(b) An offense under this article is a Class B misdemeanor,
except that:
(1) the offense is a Class A misdemeanor if the person
has been previously convicted of an offense under this article; and
(2) the offense is a second degree felony if the person
has been previously convicted two or more times of an offense under
this article.
Art. 60A.75. OFFENSE: RELEASE OF EXPUNGED INFORMATION. (a)
A person commits an offense if the person releases, publishes, or
uses records the person knows have been ordered expunged under this
chapter.
(b) An offense under this article is a Class B misdemeanor,
except that:
(1) the offense is a Class A misdemeanor if the person
has been previously convicted of an offense under this article; and
(2) the offense is a second degree felony if the person
has been previously convicted two or more times of an offense under
this article.
Art. 60A.76. EFFECT OF EXPUNCTION. (a) A person whose
criminal history record information has been expunged under this
subchapter may deny the occurrence of the arrest, citation, or
charge and the existence of the expunction order.
(b) A person may not discriminate against an applicant for
employment, housing, education, licensure, or credit because the
applicant withheld information on an application as permitted by
Subsection (a).
(c) If any person is questioned under oath in a criminal
proceeding about an arrest, citation, or charge for which the
records have been expunged, the person may state only that the
matter in question has been expunged.
Art. 60A.77. FORMS. The office of court administration
shall prescribe and publish by electronic means forms for the
petition for expunction and order for expunction under this
subchapter.
SUBCHAPTER I. CORRECTING ERRONEOUS RECORDS
Art. 60A.81. CENTRALIZED CORRECTION REQUESTS;
INVESTIGATION. (a) Any person who becomes aware that criminal
history records contain erroneous information, that sealed records
are publicly available, or that expunged records are available, may
seek correction of records by filling out a form available on the
department's Internet website, or by telephoning the department's
Crime Records Service.
(b) The department shall collect and record all correction
requests without charging a fee and in a manner that facilitates
presentation of requests.
(c) The department shall investigate each request, and
electronically transmit a written statement or make a telephone
call informing the requestor of the status or response at least once
during each 30-day period until the request is resolved.
(d) The department may deny a request for failure to provide
necessary information only when the department is unable to get the
information from another source without significant time or
expense.
(e) The department may require a requestor to submit
fingerprints only if necessary to establish facts to correct the
record at issue. The department shall make necessary
fingerprinting available to requestors without charge.
Art. 60A.82. ADMINISTRATIVE CORRECTION OF ERRONEOUS
RECORDS. (a) If the department determines that any of the
department's criminal history record information contains an
error, the department shall correct the record and electronically
transmit notice to all agencies and persons the department
considers reasonably likely to have received the erroneous
information from the department. The notice must state that all
agencies and persons receiving the notice must correct the records.
(b) If the department becomes aware that a criminal justice
agency's criminal history records may be erroneous, the department
shall contact the agency and attempt to resolve the issue by
agreement.
(c) If the department and a criminal justice agency agree
that the agency's records contain an error, the agency shall
correct the record and the department shall correct all the
department records to be consistent with the agency's correction.
The department shall transmit notice of the correction
electronically to all agencies and persons the department considers
reasonably likely to have received the erroneous information from
the department. The notice must state that all agencies and persons
receiving the notice must correct the records.
Art. 60A.83. JUDICIAL CORRECTION OF ERRONEOUS RECORDS. (a)
If the department denies a correction request for any reason, the
requestor may file a civil action:
(1) in the district court where the requestor resides,
if the requestor resides in this state; or
(2) in the district court in Travis County, if the
requestor resides in another state.
(b) If the department does not deny a correction request,
but the correction is not administratively completed due to
disagreement with another criminal justice agency, the requestor
may file a civil action in the district court where the criminal
justice agency is located.
(c) The department and the department's counsel may appear
remotely, by telephone or video conference, in any civil proceeding
filed under this article.
(d) The only relief available in an action under this
article, after discovery, is:
(1) injunctive relief as necessary to secure accurate
criminal history records; and
(2) all litigation costs, not including attorney's
fees.
SUBCHAPTER J. REFERENCES IN LAW
Art. 60A.91. REFERENCES TO ORDERS OF NONDISCLOSURE AND
ORDERS OF EXPUNCTION. (a) A reference in law to an order of
nondisclosure or any provision of Subchapter F, Chapter 411,
Government Code, means a reference to record sealing under
Subchapter G of this code.
(b) A reference in law to expunction or any provision of
Chapter 55 means a reference to Subchapter H.
SECTION 4. The following are repealed:
(1) Chapter 55, Code of Criminal Procedure; and
(2) Subchapter F, Chapter 411, Government Code.
SECTION 5. A sensitive service agency is not required to
adopt the policy prescribed by Article 60A.22, Code of Criminal
Procedure, as added by this Act, before September 1, 2017.
SECTION 6. This Act takes effect September 1, 2015.