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

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

Spectrum: Partisan Bill (Democrat 1-0)

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

Download: Texas-2019-HB4133-Introduced.html

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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.