Texas Fresh Start

Senate Bill 1477

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);
(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