HBA-KMH S.B. 840 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 840 By: West Criminal Jurisprudence 5/6/1999 Engrossed BACKGROUND AND PURPOSE Currently, a person who has been arrested for the commission of a felony or misdemeanor is entitled to have all records expunged provided certain conditions and procedures are fulfilled. S.B. 840 establishes the automatic expunction of certain arrest records under specified conditions and provides procedures for the expunction. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 55.01, Code of Criminal Procedure, to provide that the provision entitling a person to expunction of criminal records only applies if, among other conditions, there was no court ordered supervision, rather than probation. Prohibits the court from ordering, under this section, the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, if the offense for which the person was acquitted arose out of a criminal episode and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode. Makes conforming and nonsubstantive changes. SECTION 2. Amends Article 55.02, Code of Criminal Procedure, as follows: Art. 55.02. PROCEDURE FOR EXPUNCTION. Sec. 1. Requires the trial court presiding over a case in which the defendant was acquitted, at the request of the defendant and after notice to the state and a hearing, to enter an order of expunction for a person entitled to expunction under Article 55.01 (Right to Expunction) not later than the 30th day after the date of the acquittal. Requires the court, upon acquittal, to advise the defendant of the right to expunction. Requires the defendant to provide to the court all of the information required in a petition for expunction. Sec. 2. Authorizes a person who is entitled to expunction of records and files under certain provisions of Article 55.01 to file a petition for expunction in a district court for the county in which the person was arrested or in the county where the offense was alleged to have occurred. Makes conforming changes. Sec. 3. Requires the trial court to require, rather than direct, any state agency that sent information concerning the arrest to a central federal depository to request such depository to return all records and files subject to the order of expunction, in an order of expunction issued under this article. Authorizes the person who is the subject of the expunction order, as well as an agency protesting the expunction, to appeal the court's decision in the same manner as civil cases. Requires the order of expunction entered by the trial court to have attached and incorporated by reference a copy of the judgement of acquittal and to include certain prescribed information. Requires the clerk of the court to send a copy, in the manner prescribed, to the Crime Records Service of the Department of Public Safety (DPS), as well as to each official or agency or other entity of this state or of any political subdivision of this state designated by the person who is the subject of the order, rather than an official or agency named in the order that there is reason to believe has any records of files that are subject to the order. Requires DPS to notify, rather than send a copy, any central federal depository of criminal records by any means, including electronic transmission, of the order. Deletes language providing that there must be reason to believe the federal depository has records in order to be required to notify the depository. Assigns subsection designations to this section and makes conforming and nonsubstantive changes. Sec. 4. Authorizes the court, in the case of a person who is the subject of an expunction order on the basis of an acquittal, to provide in the order that a law enforcement agency and the prosecuting attorney retain records and files necessary to conduct a subsequent investigation and prosecution of a person other than the person who is the subject of the expunction order. Exempts the records retained under this section from the provisions of Articles 55.03 (Effect of Expunction) and 55.04 (Violation of Expunction Order) if there is a subsequent investigation and prosecution of a person other than the person who is the subject of the expunction order. Makes conforming and nonsubstantive changes. Sec. 5. Makes conforming and nonsubstantive changes. SECTION 3. Amends Article 55.03, Code of Criminal Procedure, to make conforming changes. SECTION 4. Amends Article 55.06, Code of Criminal Procedure, to prohibit records relating to the suspension or revocation of a driver's license, permit, or privilege to operate a motor vehicle from being expunged under this chapter, except as provided in Sections 524.015 (Effect of Disposition of Criminal Charge on Driver's License Suspension) and 724.048 (Relationship of Administrative Proceeding to Criminal Proceeding), Transportation Code. Deletes text regarding the prohibition to expunge certain records. Makes standard recodification changes. SECTION 5. Makes application of this Act prospective. SECTION 6. Provides that this Act takes effect only if a specific appropriation for the implementation of this Act is provided in H.B. 1 (General Appropriations Act), Acts of the 76th Legislature, Regular Session, 1999. Provides that if no specific appropriation is provided in H.B. 1, the General Appropriations Act, this Act has no effect. SECTION 7. Emergency clause. Effective date: upon passage.