HB 1344 Status


83R5514 AJZ-D

By: Canales H.B. No. 1344



A BILL TO BE ENTITLED

AN ACT
relating to the expunction of arrest records and files relating to
certain nonviolent offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 55, Code of Criminal Procedure, is
amended by adding Article 55.012 to read as follows:
Art. 55.012. EXPUNCTION OF CERTAIN NONVIOLENT OFFENSES.
(a) A person who has been placed under a custodial or noncustodial
arrest for an offense other than an offense under Title 5, Penal
Code, is entitled to have all records and files related to the
arrest expunged if:
(1) the person was placed on deferred adjudication
community supervision under Section 5, Article 42.12, for the
offense and subsequently received a discharge and dismissal in the
case under Section 5(c), Article 42.12;
(2) the person has not been arrested for the
commission of any Class B misdemeanor, Class A misdemeanor, or
felony committed after the date of the offense for which the person
was placed on deferred adjudication community supervision; and
(3) a period of not less than five years has passed
since the date on which the person received a discharge and
dismissal under Subdivision (1).
(b) The person must submit an ex parte petition for
expunction to the court that granted the deferred adjudication
community supervision. The petition must be verified and must
contain:
(1) the information described by Section 2(b), Article
55.02; and
(2) a statement that the person has not been arrested
for the commission of any Class B misdemeanor, Class A misdemeanor,
or felony committed after the date of the offense for which the
person was placed on deferred adjudication community supervision.
(c) If the court finds that the petitioner is entitled to
expunction of any arrest records and files that are the subject of
the petition, the court shall enter an order directing expunction
in a manner consistent with the procedures described by Section 1a,
Article 55.02.
SECTION 2. Section 411.0851(a), Government Code, is amended
to read as follows:
(a) A private entity that compiles and disseminates for
compensation criminal history record information shall destroy and
may not disseminate any information in the possession of the entity
with respect to which the entity has received notice that:
(1) an order of expunction has been issued under
Chapter 55 [Article 55.02], Code of Criminal Procedure; or
(2) an order of nondisclosure has been issued under
Section 411.081(d).
SECTION 3. Section 552.1425(a), Government Code, is amended
to read as follows:
(a) A private entity that compiles and disseminates for
compensation criminal history record information may not compile or
disseminate information with respect to which the entity has
received notice that:
(1) an order of expunction has been issued under
Chapter 55 [Article 55.02], Code of Criminal Procedure; or
(2) an order of nondisclosure has been issued under
Section 411.081(d).
SECTION 4. This Act takes effect September 1, 2013.

Will the amendment to this article be retroactive? Thanks!

Yes.

According to this bill, these offenses that are currently ineligible for non disclosure would be eligible now for expunction:

Possession or promotion of child pornography
Continuous family violence
Incest
Violation of protective order
Stalking
Burglary with intent to commit kidnapping or sexual assault
Compelling prostitution
Sexual performance by a child

Defendant's will still have to meet the 5 year waiting period after completion of probation and charges being dismissed, correct?

I think we should oppose any changes to expunctions other than transforming the whole process into non-disclosures. It is way too easy to end up destroying important information or material. And should we take those risks with those types of offenses? Seriously?

This is a horrible bill. We need to know what these people have done in the past to know how to handle them if they come into the system in the future. I know if it passes our office will adjust our plea offer policy to drastically reduce offers of deferred and we will build into the plea offer a provision that the defendant waives any right to expunction if the offer is for deferred adjudication.

I think that after making such big changes to Chapter 55 in the last legislative session, they need to leave it alone this year and see how all of the changes shake out fully before tinkering with it some more.

On this bill in particular, I think it's a terrible idea. Expunctions are an extreme remedy -- the records are completely gone, with no way to recover them or even keep a record of who has been granted an expunction -- and they were initially only justified by being for people who were wrongly arrested. I think it's bad enough that Class C deferreds are allowed to be expunged now, but do we really want to expand that to more serious cases? All I see coming out of this is that prosecutors will be much less likely to ever consider deferred as a plea bargain because the State loses all benefit from it if we can't even tell in the future who had cases like this.

This bill doesn't even have the protections that nondisclosures currently have. Look at the list of offenses BullQ posted. Do we really think someone committing crimes like continuous family violence or compelling prostitution needs to have that wiped completely clean? Those are serious enough offenses that the Legislature had previously decided they shouldn't even be sealed, and now they'll be completely destroyed? Nondisclosures currently also have to show that they're in the interest of justice, to serve as a check, whereas expunctions have to be granted as long as you can check off the boxes.

Finally, just on a practical note, this will be a huge burden on state agencies. The number of expunctions has already been rising. Now even more offenses will be eligible for expunction, and expunctions take much more time to comply with than a nondisclosure. For a nondisclosure, you restrict the access to your computer file and put a note on the physical file and that's it. Expunction requires much more work in terms of gathering all the records and permanently destroying them. And we'll have an influx of everyone who's ever received a nondisclosure in the past or had a deferred that wasn't eligible for nondisclosure who will be able to get an expunction now.

We already have a remedy for helping people with deferred clear their record. It's called nondisclosure. We need to keep it separate from expunction, which is an extreme remedy that should be reserved only for the people wrongly arrested.

One additional little irony

For the last few sessions, there has been some considerable effort poured into trying to restore the availability of deferred in DWI cases. If this bill passes, how many prosecutors (who, presumably, would like to keep tabs on when DWI offenders re-offend) are going to be truly willing to offer deferred in a DWI?

Don't forget that we will also loose enhancements like a deferred for Assault Family violence with an affirmative finding of family violence

Andrea,

When is the next updated book on Expunctions and Non-Disclosures coming out?

quote:

Originally posted by JK McCown:
Andrea,

When is the next updated book on Expunctions and Non-Disclosures coming out?

I believe it's slated for next fall.