Bill Text: TX HB4133 | 2019-2020 | 86th Legislature | Introduced


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

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-03-25 - Referred to Criminal Jurisprudence [HB4133 Detail]

Download: Texas-2019-HB4133-Introduced.html
  86R11848 JRR-F
 
  By: Bowers H.B. No. 4133
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the expunction of records and files relating to a
  person's arrest.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Articles 55.01(a), (b), and (c), Code of
  Criminal Procedure, are amended to read as follows:
         (a)  A person who has been placed under a custodial or
  noncustodial arrest for commission of either a felony or
  misdemeanor is entitled to have all records and files relating to
  the arrest expunged if:
               (1)  the person is tried for the offense for which the
  person was arrested and is:
                     (A)  acquitted by the trial court[, except as
  provided by Subsection (c)]; or
                     (B)  convicted and subsequently:
                           (i)  pardoned for a reason other than that
  described by Subparagraph (ii); or
                           (ii)  pardoned or otherwise granted relief
  on the basis of actual innocence with respect to that offense, if
  the applicable pardon or court order clearly indicates on its face
  that the pardon or order was granted or rendered on the basis of the
  person's actual innocence; or
               (2)  the person has been released and the charge, if
  any, has not resulted in a final conviction and is no longer pending
  and there was no court-ordered community supervision under Chapter
  42A for the offense, unless the offense is a Class C misdemeanor,
  provided that:
                     (A)  regardless of whether any statute of
  limitations exists for the offense and whether any limitations
  period for the offense has expired, an indictment, [or]
  information, or complaint charging the person with the commission
  of a misdemeanor offense based on the person's arrest or charging
  the person with the commission of any felony offense arising out of
  the same transaction for which the person was arrested:
                           (i)  has not been presented against the
  person at any time following the arrest, and:
                                 (a)  at least 180 days have elapsed
  from the date of arrest if the arrest for which the expunction was
  sought was for an offense punishable as a Class C misdemeanor and if
  there was no felony charge arising out of the same transaction for
  which the person was arrested;
                                 (b)  at least one year has elapsed from
  the date of arrest if the arrest for which the expunction was sought
  was for an offense punishable as a Class B or A misdemeanor and if
  there was no felony charge arising out of the same transaction for
  which the person was arrested;
                                 (c)  at least three years have elapsed
  from the date of arrest if the arrest for which the expunction was
  sought was for an offense punishable as a felony or if there was a
  felony charge arising out of the same transaction for which the
  person was arrested; or
                                 (d)  the attorney representing the
  state certifies that the applicable arrest records and files are
  not needed for use in any criminal investigation or prosecution,
  including an investigation or prosecution of another person; or
                           (ii)  if presented at any time following the
  arrest, was dismissed or quashed, and  the court finds that the
  indictment, [or] information, or complaint was dismissed or quashed
  because:
                                 (a)  the person completed a veterans
  treatment court program created under Chapter 124, Government Code,
  or former law, subject to Subsection (a-3);
                                 (b)  the person completed a pretrial
  intervention program authorized under Section 76.011, Government
  Code, other than a veterans treatment court program created under
  Chapter 124, Government Code, or former law;
                                 (c)  the presentment had been made
  because of mistake, false information, or other similar reason
  indicating absence of probable cause at the time of the dismissal to
  believe the person committed the offense; or
                                 (d)  the indictment, [or] information,
  or complaint was void; or
                     (B)  prosecution of the person for the offense for
  which the person was arrested is no longer possible because the
  limitations period has expired.
         (b)  Subject [Except as provided by Subsection (c) and
  subject] to Subsection (b-1), a district court, a justice court, or
  a municipal court of record may expunge all records and files
  relating to the arrest of a person under the procedure established
  under Article 55.02 if:
               (1)  the person is:
                     (A)  tried for the offense for which the person
  was arrested;
                     (B)  convicted of the offense; and
                     (C)  acquitted by the court of criminal appeals
  or, if the period for granting a petition for discretionary review
  has expired, by a court of appeals; or
               (2)  an office of the attorney representing the state
  authorized by law to prosecute the offense for which the person was
  arrested recommends the expunction to the court before the person
  is tried for the offense, regardless of whether an indictment, [or]
  information, or complaint has been presented against the person in
  relation to the offense.
         (c)  Notwithstanding any other provision of this article, a
  [A] court may not order the expunction of records and files relating
  to an arrest [for an offense for which a person is subsequently
  acquitted, whether by the trial court, a court of appeals, or the
  court of criminal appeals,] if the offense for which the person was
  arrested [acquitted] arose out of a criminal episode, as defined by
  Section 3.01, Penal Code, and the person was convicted of or remains
  subject to prosecution for at least one other offense occurring
  during the criminal episode.
         SECTION 2.  Sections 2(a) and (a-1), Article 55.02, Code of
  Criminal Procedure, are amended to read as follows:
         (a)  Except as provided by Subsection (a-1), a [A] person who
  is entitled to expunction of records and files under Article
  55.01(a)(1)(A), 55.01(a)(1)(B)(i), or 55.01(a)(2) or a person who
  is eligible for expunction of records and files under Article
  55.01(b) may file an ex parte petition for expunction in a district
  court for the county in which:
               (1)  the petitioner was arrested; or
               (2)  the offense was alleged to have occurred.
         (a-1)  Except as provided by Subsection (e), if [If] the
  arrest for which expunction is sought is for an offense punishable
  by fine only[,] and the [a] person [who] is entitled to expunction
  of records and files under Article 55.01(a) or [a person who is]
  eligible for expunction of records and files under Article
  55.01(b), [may file] an ex parte petition for expunction must be
  filed in a justice court or a municipal court of record in the
  county in which:
               (1)  the petitioner was arrested; or
               (2)  the offense was alleged to have occurred.
         SECTION 3.  Section 4, Article 55.02, Code of Criminal
  Procedure, is amended by amending Subsections (a), (a-2), and (b)
  and adding Subsections (a-3) and (c) to read as follows:
         (a)  If the state establishes that the person who is the
  subject of an expunction order is still subject to conviction for an
  offense arising out of the same criminal episode, as defined by
  Section 3.01, Penal Code, [transaction] for which the person was
  arrested because the statute of limitations has not run and there is
  reasonable cause to believe that the state may proceed against the
  person for the offense, the court may provide in its expunction
  order that the law enforcement agency and the prosecuting attorney
  responsible for investigating the offense may retain any records
  and files that are necessary to the investigation.
         (a-2)  The [In the case of a person who is the subject of an
  expunction order on the basis of an acquittal, the] court may
  provide in the expunction order that the law enforcement agency and
  the prosecuting attorney retain records and files if:
               (1)  the records and files are necessary to conduct a
  subsequent investigation and prosecution of a person other than the
  person who is the subject of the expunction order; or
               (2)  the state establishes that the records and files
  are necessary for use in:
                     (A)  another criminal case, including a
  prosecution, motion to adjudicate or revoke community supervision,
  parole revocation hearing, mandatory supervision revocation
  hearing, punishment hearing, or bond hearing; or
                     (B)  a civil case, including a civil suit or suit
  for possession of or access to a child.
         (a-3)  In the case of a person who is the subject of an
  expunction order on the basis of actual innocence, the court shall
  provide in the expunction order that the law enforcement agency and
  the prosecuting attorney must retain the records and files.
         (b)  Unless the person who is the subject of the expunction
  order is again arrested for or charged with an offense arising out
  of the same criminal episode, as defined by Section 3.01, Penal
  Code, [transaction] for which the person was arrested or unless the
  court provides for the retention of records and files under
  Subsection (a-1) or (a-2), the provisions of Articles 55.03 and
  55.04 apply to files and records retained under this section.
         (c)  The provisions of Articles 55.03 and 55.04 apply to
  records and files retained under Subsection (a-3), except that the
  records and files may be used for the purpose of training attorneys
  and criminal justice agencies with respect to the identification
  and prevention of wrongful convictions.
         SECTION 4.  Sections 5(a), (c), and (d), Article 55.02, Code
  of Criminal Procedure, are amended to read as follows:
         (a)  Except as provided by Subsections (f) and (g), on
  receipt of the order, each official or agency or other governmental
  entity named in the order shall:
               (1)  return all records and files that are subject to
  the expunction order to the court or in cases other than those
  described by Section 1a, destroy [if removal is impracticable,
  obliterate all portions of] the record or file [that identify the
  person who is the subject of the order] and notify the court of its
  action; and
               (2)  delete from its public records all index
  references to the records and files that are subject to the
  expunction order.
         (c)  Except in the case of a person who is the subject of an
  expunction order based on an entitlement under Article 55.01(d) and
  except as provided by Subsection (g), if an order of expunction is
  issued under this article, the court records concerning expunction
  proceedings are not open for inspection by anyone except the person
  who is the subject of the order unless the order permits retention
  of a record under Section 4 of this article and the person is again
  arrested for or charged with an offense arising out of the same
  criminal episode, as defined by Section 3.01, Penal Code,
  [transaction] for which the person was arrested or unless the court
  provides for the retention of records and files under Section 4(a)
  of this article.  The clerk of the court issuing the order shall
  obliterate all public references to the proceeding and maintain the
  files or other records in an area not open to inspection.
         (d)  Except in the case of a person who is the subject of an
  expunction order on the basis of an acquittal or an expunction order
  based on an entitlement under Article 55.01(d) and except as
  provided by Subsection (g), the clerk of the court shall destroy all
  the files or other records maintained under Subsection (c) not
  earlier than the 180th [60th] day after the date the order of
  expunction is issued or later than the first anniversary of that
  date unless the records or files were released under Subsection
  (b).
         SECTION 5.  This Act applies to an expunction of records and
  files relating to any arrest occurring before, on, or after the
  effective date of this Act.
         SECTION 6.  This Act takes effect September 1, 2019.
feedback