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This Bill amends the Law to provide....
if a person is placed on deferred adjudication community supervision and subsequently receives a discharge and dismissal
and has not been convicted of certain offenses, the person may petition the court that placed the defendant on deferred
adjudication for an order of nondisclosure. The bill also sets out provisions that determine eligibility for a
Nondisclosure Order, the amount of the Filing fee required to accompany Petition, and the agencies to whom the
Nondisclosure Order is to be sent.
The bill allows a person who is granted a Nondisclosure Order to deny the occurrence of the arrest
and prosecution to which the Order relates, unless the information is being used against the person in a subsequent
criminal proceeding. The bill prohibits a private entity that compiles and disseminates for compensation criminal
history record information from compiling or disseminating information with respect to which an order of nondisclosure
has been issued and sets forth penalties for entities that fail to comply.
EFFECTIVE DATE
September 1, 2003.
AN ACT relating to restrictions on the disclosure of certain criminal records and to the duty of law enforcement
agencies regarding records associated with certain defendants receiving deferred adjudication; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
Sections 1,2 & 3 of the Code of Criminal Procedure relate to EXPUNGEMENT
SECTION 1. Subsection (a), Article 55.01,
SECTION 2. Subsection (a), Section 2, Article 55.02,
SECTION 3. Article 55.03,
SECTION 4. Section 411.081 , Government Code, is amended by adding Subsections (d) through (h) to read:
(d) Notwithstanding any other provision of this subchapter, if a person is placed on deferred adjudication community
supervision under Section 5 Article 42.12, Code of Criminal Procedure, subsequently receives a discharge and dismissal
under Section 5(c), Article 42.12, and satisfies the requirements of Subsection (e), the person may petition the court
that placed the defendant on deferred adjudication for an order of nondisclosure under this subsection. After notice to
the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best
interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public
criminal history record information related to the offense giving rise to the deferred adjudication. A criminal justice
agency may disclose criminal history record information that is the subject of the order to an individual or agency
described by Section 411.083(b) (1), (2), or (3). A person may petition the court for an order of nondisclosure on
payment of a $28 fee to the clerk of the court. The payment may be made only on or after:
(1) the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a
misdemeanor other than a misdemeanor described by Subdivision
(2); the second anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred
adjudication was a misdemeanor under the Texas Penal Code Chapter 20, 21, 22, 25, 42, 46; or
(3) the 5th anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred
adjudication was a felony.
(e) A person is entitled to petition the court under Subsection
(d) only if during the deferred probation period and the applicable period described by Subsection (d)(1), (2), or (3),
as appropriate, the person is not convicted of or placed on deferred adjudication community supervision under
Section 5, Article 42.12, Code of Criminal Procedure, for any offense other than an offense under the
Transportation Code punishable by fine only.
A person is NOT entitled to petition the court under Subsection (d) if the person has been previously
convicted or placed on deferred adjudication for:
(1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Section 20.04, Penal Code, regardless of whether the offense is a reportable conviction or
adjudication for purposes of Chapter 62, Code of Criminal Procedure;
(3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or 42.072, Penal Code; or
(4) any other offense involving family violence, as defined by Section 71.004, Family Code.
(f) For purposes of Subsection (d), a person is considered to have been placed on deferred adjudication
community supervision if, regardless of the statutory authorization:
(1) the person entered a plea of guilty or nolo contendere;
(2) the judge deferred further proceedings without entering an adjudication of guilt and placed the person under the
supervision of the court or an officer under the supervision of the court; and
(3) at the end of the period of supervision the judge dismissed the proceedings and discharged the person.
(g) When an order of nondisclosure is issued under this subsection, the clerk of the court shall send a copy of the
order by certified mail, return receipt requested, to the Crime Records Service of the Department of Public Safety.
The Department of Public Safety shall send a copy of the order by mail or electronic means to all law enforcement
agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities,
central state depositories of criminal records, and other officials or agencies or other entities of this state or
of any political subdivision of this state, and to all central federal depositories of criminal records that there
is reason to believe have criminal history record information that is the subject of the order.
(h) The clerk of a court that collects a fee under Subsection (d) shall remit the fee to the comptroller not later than
the last day of the month following the end of the calendar quarter in which the fee is collected, and the comptroller
shall deposit the fee in the general revenue fund. The Department of Public Safety shall submit a report to the
legislature not later than December 1 of each even-numbered year that includes information on:
(1) the number of petitions for nondisclosure and orders of nondisclosure received by the department in each of the
previous two years;
(2) the actions taken by the department with respect to the petitions and orders received; and
(3) the costs incurred by the department in taking those actions.
SECTION 5 . Subchapter C, Chapter 552 of the Government Code, is amended by adding Sections 552.142 and
552.1425 to read as follows:
Sec. 552.142. EXCEPTION: RECORDS OF CERTAIN DEFERRED ADJUDICATIONS.
(a) Information is excepted from the requirements of Section 552.021 (Public Disclosure) if an order of nondisclosure
with respect to the information has been issued under Section 411.081(d).
(b) A person who is the subject of information that is excepted from the requirements of Section 552.021 under this
section may deny the occurrence of the arrest and prosecution to which the information relates and the exception of the
information under this section, unless the information is being used against the person in a subsequent criminal proceeding.
Sec. 552.1425 . CIVIL PENALTY: RECORDS OF CERTAIN DEFERRED ADJUDICATIONS.
(a) A private entity that compiles and disseminates for compensation criminal history record information may not
compile or disseminate information with respect to which an order of nondisclosure has been issued under Section
411.081(d).
(b) A district court may issue a warning to a private entity for a first violation of Subsection (a). After receiving a
warning for the first violation, the private entity is liable to the state for a civil penalty not to exceed $500 for
each subsequent violation.
(c) The attorney general or an appropriate prosecuting attorney may sue to collect a civil penalty under this section.
(d) A civil penalty collected under this section shall be deposited in the state treasury to the credit of the general
revenue fund.
SECTION 6.
(a) This Act takes effect September 1, 2003
(b) The changes in law made by this Act to Chapter 55, Code of Criminal Procedure, apply to a person seeking expunction
of records and files relating to an arrest regardless of whether the arrest occurred before, on, or after the effective
date of this Act.
(c) The changes in law made by this Act to Section 411.081, Government Code, as amended by this Act, and Sections
552.142 and 552.1425, Government Code, as added by this Act, apply to information related to a deferred adjudication or
similar procedure described by Subsection (f), Section 411.081, Government Code, as added by this Act, regardless of
whether the deferred adjudication or procedure is entered before, on, or after the effective date of this Act.
(d) The Department of Public Safety of the State of Texas shall submit its first report to the legislature as required
by Subsection
(h), Section 411.081, as added by this Act, not later than December 1, 2004
INFORMATION TO CHILD ON DISCHARGE
Sec. 58.208. INFORMATION TO CHILD ON DISCHARGE. On the final discharge of a
child from the juvenile system or on the last official action in the case,
if there is no adjudication, the appropriate juvenile justice official shall
provide to the child:
(1) a written explanation of how automatic restricted access under this
subchapter works;
(2) a copy of this subchapter; and
(3) a statement that if the child wishes to receive notification of an
action restricting access to the child's records under
Section 58.207(a), the child must before the child's 21st birthday provide
the juvenile probation department with a current address where the child can
receive notification.
JUVENILE COURT ORDERS ON CERTIFICATION
Sec. 58.207. JUVENILE COURT ORDERS ON CERTIFICATION. (a) On certification of
records in a case under Section 58.203, the juvenile court shall order:
(1) that the following records relating to the case may be accessed only as
provided by Section 58.204(b):
(A) if the respondent was committed to the Texas Youth Commission, records
maintained by the commission;
(B) records maintained by the juvenile probation department;
(C) records maintained by the clerk of the court;
(D) records maintained by the prosecutor's office; and
(E) records maintained by a law enforcement agency; and
(2) the juvenile probation department to make a reasonable effort to notify
the person who is the subject of records for which access has been
restricted of the action restricting access and the legal significance of
the action for the person, but only if the person has requested the
notification in writing and has provided the juvenile probation department
with a current address.
(b) On receipt of an order under Subsection (a)(1), the agency maintaining
the records:
(1) may allow access only as provided by Section 58.204(b); and
(2) shall respond to a request for information about the records by stating
that the records do not exist.
SEALING OF RECORDS
Sec. 58.003. SEALING OF RECORDS. (a) Except as provided by Subsections (b)
and (c), on the application of a person who has been found to have engaged
in delinquent conduct or conduct indicating a need for supervision, or a
person taken into custody to determine whether the person engaged in
delinquent conduct or conduct indicating a need for supervision, on the
juvenile court's own motion the court shall order the sealing of the records
in the case if the court finds that:
(1) two years have elapsed since final discharge of the person or since the
last official action in the person's case if there was no adjudication; and
(2) since the time specified in Subdivision (1), the person has not been
convicted of a felony or a misdemeanor involving moral turpitude or found to
have engaged in delinquent conduct or conduct indicating a need for
supervision and no proceeding is pending seeking conviction or adjudication.
(b) A court may not order the sealing of the records of a person who has
received a determinate sentence for engaging in delinquent conduct that
violated a penal law listed in Section 53.045 or engaging in habitual felony
conduct as described by Section 51.031.
(c) Subject to Subsection (b), a court may order the sealing of records
concerning a person adjudicated as having engaged in delinquent conduct that
violated a penal law of the grade of felony only if:
(1) the person is 21 years of age or older;
(2) the person was not transferred by a juvenile court under Section 54.02
to a criminal court for prosecution;
(3) the records have not been used as evidence in the punishment phase of a
criminal proceeding under Section 3(a), Article 37.07, Code of Criminal
Procedure; and
(4) the person has not been convicted of a penal law of the grade of felony
after becoming age 17.
(c-1) Notwithstanding Subsections (a) and (c) and subject to Subsection (b),
a juvenile court may order the sealing of records concerning a child
adjudicated as having engaged in delinquent conduct or conduct indicating a
need for supervision that violated a penal law of the grade of misdemeanor
or felony if the child successfully completed a drug court program under
Chapter 469, Health and Safety Code. The court may:
(1) order the sealing of the records immediately and without a hearing; or
(2) hold a hearing to determine whether to seal the records.
(c-2) If the court orders the sealing of a child's records under Subsection
(c-1), a prosecuting attorney or juvenile probation department may maintain
until the child's 17th birthday a separate record of the child's name and
date of birth and the date the child successfully completed the drug court
program. The prosecuting attorney or juvenile probation department, as
applicable, shall send the record to the court as soon as practicable after
the child's 17th birthday to be added to the child's other sealed records.
(d) The court may grant the relief authorized in Subsection (a) or (c-1) at
any time after final discharge of the person or after the last official
action in the case if there was no adjudication, subject to Subsection (e).
If the child is referred to the juvenile court for conduct constituting any
offense and at the adjudication hearing the child is found to be not guilty
of each offense alleged, the court shall immediately and without any
additional hearing order the sealing of all files and records relating to
the case.
(e) The court shall hold a hearing before sealing a person's records under
Subsection (a) or (c) unless the applicant waives the right to a hearing in
writing and the court and the prosecuting attorney for the juvenile court
consent. Reasonable notice of the hearing shall be given to:
(1) the person who made the application or who is the subject of the records
named in the motion;
(2) the prosecuting attorney for the juvenile court;
(3) the authority granting the discharge if the final discharge was from an
institution or from parole;
(4) the public or private agency or institution having custody of records
named in the application or motion; and
(5) the law enforcement agency having custody of files or records named in
the application or motion.
(f) A copy of the sealing order shall be sent to each agency or official
named in the order.
(g) On entry of the order:
(1) all law enforcement, prosecuting attorney, clerk of court, and juvenile
court records ordered sealed shall be sent before the 61st day after the
date the order is received to the court issuing the order;
(2) all records of a public or private agency or institution ordered sealed
shall be sent before the 61st day after the date the order is received to
the court issuing the order;
(3) all index references to the records ordered sealed shall be deleted
before the 61st day after the date the order is received, and verification
of the deletion shall be sent before the 61st day after the date of the
deletion to the court issuing the order;
(4) the juvenile court, clerk of court, prosecuting attorney, public or
private agency or institution, and law enforcement officers and agencies
shall properly reply that no record exists with respect to the person on
inquiry in any matter; and
(5) the adjudication shall be vacated and the proceeding dismissed and
treated for all purposes other than a subsequent capital prosecution,
including the purpose of showing a prior finding of delinquent conduct, as
if it had never occurred.
(g-1) Any records collected or maintained by the Texas Juvenile Probation
Commission, including statistical data submitted under Section 141.044,
Human Resources Code, are not subject to a sealing order issued under this
section.
(h) Inspection of the sealed records may be permitted by an order of the
juvenile court on the petition of the person who is the subject of the
records and only by those persons named in the order.
(i) On the final discharge of a child or on the last official action in the
case if there is no adjudication, the child shall be given a written
explanation of the child's rights under this section and a copy of the
provisions of this section.
(j) A person whose records have been sealed under this section is not
required in any proceeding or in any application for employment,
information, or licensing to state that the person has been the subject of a
proceeding under this title and any statement that the person has never been
found to be a delinquent child shall never be held against the person in any
criminal or civil proceeding.
(k) A prosecuting attorney may, on application to the juvenile court, reopen
at any time the files and records of a person adjudicated as having engaged
in delinquent conduct that violated a penal law of the grade of felony
sealed by the court under this section for the purposes of Sections
12.42(a)-(c) and (e), Penal Code.
(l) On the motion of a person in whose name records are kept or on the
court's own motion, the court may order the destruction of records that have
been sealed under this section if:
(1) the records relate to conduct that did not violate a penal law of the
grade of felony or a misdemeanor punishable by confinement in jail;
(2) five years have elapsed since the person's 16th birthday; and
(3) the person has not been convicted of a felony.
(m) On request of the Department of Public Safety, a juvenile court shall
reopen and allow the department to inspect the files and records of the
juvenile court relating to an applicant for a license to carry a concealed
handgun under Subchapter H, Chapter 411, Government Code.
(n) A record created or maintained under Chapter 62, Code of Criminal
Procedure, may not be sealed under this section if the person who is the
subject of the record has a continuing obligation to register under that
chapter.
(o) An agency or official named in the order that cannot seal the records
because the information required in the order under Subsection (p) is
incorrect or insufficient shall notify the court issuing the order before
the 61st day after the date the agency or official receives the order. The
court shall notify the person who made the application or who is the subject
of the records named in the motion, or the attorney for that person, before
the 61st day after the date the court receives the notice that the agency or
official cannot seal the records because there is incorrect or insufficient
information in the order.
(p) A person who is eligible to seal records may file an application for the
sealing of records in a juvenile court of the county in which the
proceedings occurred. The application and sealing order entered on the
application must include the following information or an explanation for why
one or more of the following is not included:
(1) the applicant's:
(A) full name;
(B) sex;
(C) race or ethnicity;
(D) date of birth;
(E) driver's license or identification card number; and
(F) social security number;
(2) the offense charged against the applicant or for which the applicant was
referred to the juvenile justice system;
(3) the date on which and the county where the offense was alleged to have
been committed; and
(4) if a petition was filed in the juvenile court, the cause number assigned
to the petition and the court and county in which the petition was filed.
CONFIDENTIALITY OF INFORMATION
Sec. 58.307. CONFIDENTIALITY OF INFORMATION. (a) Information that is part of
a local juvenile justice information system is not public information and
may not be released to the public, except as authorized by law.
(b) Information that is part of a local juvenile justice information system
is for the professional use of the partner agencies that are members of the
system and may be used only by authorized employees of those agencies to
discharge duties of those agencies.
(c) Information from a local juvenile justice information system may not be
disclosed to persons, agencies, or organizations that are not members of the
system except to the extent disclosure is authorized or mandated by this
title.
(d) Information in a local juvenile justice information system is subject to
destruction, sealing, or restricted access as provided by this title.
(e) Information in a local juvenile justice information system, including
electronic signature systems, shall be protected from unauthorized access by
a system of access security and any access to information in a local
juvenile information system performed by browser software shall be at the
level of at least 128-bit encryption. A juvenile board or a regional
juvenile board committee shall require all partner agencies to maintain
security and restrict access in accordance with the requirements of this
title.
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