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Code of Criminal Procedure - CHAPTER 55

CHAPTER FIFTY–FIVE. EXPUNCTION OF CRIMINAL RECORDS

Art. 55.01. Right to Expunction

     (a) A person who has been arrested 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) of this section; or

     (B) convicted and subsequently pardoned; or

     (2) each of the following conditions exist:

     (A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, it has been dismissed and the court finds that it was dismissed because 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 because it was void;

     (B) 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 Article 42.12 of this code; and

     (C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

     (b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:

     (1) tried for the offense for which the person was arrested;

     (2) convicted of the offense; and

     (3) acquitted by the court of criminal appeals.

     (c) 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 or the court of criminal appeals, if the offense for which the person was 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.

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, § 1, eff. Aug. 29, 1977.

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, § 1, eff. Aug. 27, 1979; Acts 1989, 71st Leg., ch. 803, § 1, eff. Sept. 1, 1989; Subsec. (2) amended by Acts 1991, 72nd Leg., ch. 14, § 284(53), eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 900, § 7.02(a), eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1236, § 1, eff. Aug. 30, 1999.

Art. 55.02. Procedure for Expunction

     Sec. 1. At the request of the defendant and after notice to the state and a hearing, the trial court presiding over the case in which the defendant was acquitted shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(A) not later than the 30th day after the date of the acquittal. Upon acquittal, the court shall advise the defendant of the right to expunction. The defendant shall provide to the court all of the information required in a petition for expunction under Section 2(b).

     Sec. 2. (a) A person who is entitled to expunction of records and files under Article 55.01(a)(1)(B) 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 the person was arrested or in the county where the offense was alleged to have occurred.

     (b) The petition must be verified and shall include the following or an explanation for why one or more of the following is not included:

     (1) the petitioner's:

     (A) full name;

     (B) sex;

     (C) race;

     (D) date of birth;

     (E) driver's license number;

     (F) social security number; and

     (G) address at the time of the arrest;

     (2) the offense charged against the petitioner;

     (3) the date the offense charged against the petitioner was alleged to have been committed;

     (4) the date the petitioner was arrested;

     (5) the name of the county where the petitioner was arrested and if the arrest occurred in a municipality, the name of the municipality;

     (6) the name of the agency that arrested the petitioner;

     (7) the case number and court of offense; and

     (8) a list of 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 of all central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction.

     (c) The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give reasonable notice of the hearing to each official or agency or other entity named in the petition by certified mail, return receipt requested, and such entity may be represented by the attorney responsible for providing such agency with legal representation in other matters.

     (d) If the court finds that the petitioner is entitled to expunction of any records and files that are the subject of the petition, it shall enter an order directing expunction.

     Sec. 3. (a) In an order of expunction issued under this article, the trial court shall require 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. The person who is the subject of the expunction order or an agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases.

     (b) The order of expunction entered by the trial court shall have attached and incorporate by reference a copy of the judgment of acquittal and shall include:

     (1) the following information on the person who is the subject of the expunction order:

     (A) full name;

     (B) sex;

     (C) race;

     (D) date of birth;

     (E) driver's license number; and

     (F) social security number;

     (2) the offense charged against the person who is the subject of the expunction order;

     (3) the date the person who is the subject of the expunction order was arrested;

     (4) the case number and court of offense; and

     (5) the tracking incident number (TRN) assigned to the individual incident of arrest under Article 60.07(b)(1) by the Department of Public Safety.

     (c) When the order of expunction is final, the clerk of the court shall send a certified copy of the order by certified mail, return receipt requested, to the Crime Records Service of the Department of Public Safety and 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. The Department of Public Safety shall notify any central federal depository of criminal records by any means, including electronic transmission, of the order with an explanation of the effect of the order and a request that the records in possession of the depository, including any information with respect to the order, be destroyed or returned to the court.

     (d) All returned receipts received by the clerk from notices of the hearing and copies of the order shall be maintained in the file on the proceedings under this chapter.

     Sec. 4. (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 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 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. 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.

     (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 transaction for which the person was arrested or unless the court provides for the retention of records and files under Subsection (a) of this section, the provisions of Articles 55.03 and 55.04 of this code apply to files and records retained under this section.

     Sec. 5. (a) On receipt of the order, each official or agency or other entity named in the order shall:

     (1) return all records and files that are subject to the expunction order to the court or, 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.

     (b) Except in the case of a person who is the subject of an expunction order on the basis of an acquittal, the court may give the person who is the subject of the order all records and files returned to it pursuant to its order.

     (c) 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 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, the clerk of the court shall destroy all the files or other records maintained under Subsection (c) of this section on the first anniversary of the date the order of expunction is issued unless the records or files were released under Subsection (b) of this section.

     (e) The clerk shall certify to the court the destruction of files or other records under Subsection (d) of this section.

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, § 1, eff. Aug. 29, 1977.

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, § 1, eff. Aug. 27, 1979; Sec. 1(b) amended by Acts 1989, 71st Leg., ch. 803, § 2, eff. Sept. 1, 1989; Sec. 3(a) amended by Acts 1989, 71st Leg., ch. 803, § 3, eff. Sept. 1, 1989; Sec. 5(d), (e) added by Acts 1989, 71st Leg., ch. 803, § 4, eff. Sept. 1, 1989; Sec. 3(a) amended by Acts 1991, 72nd Leg., ch. 380, § 1, eff. Aug. 26, 1991; Acts 1999, 76th Leg., ch. 1236, § 2, eff. Aug. 30, 1999.

Art. 55.03. Effect of Expunction

     After entry of an expunction order:

     (1) the release, dissemination, or use of the expunged records and files for any purpose is prohibited;

     (2) except as provided in Subdivision 3 of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and

     (3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, § 1, eff. Aug. 29, 1977.

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, § 1, eff. Aug. 27, 1979; Acts 1999, 76th Leg., ch. 1236, § 3, eff. Aug. 30, 1999.

Art. 55.04. Violation of Expunction Order

     Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.

     Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.

     Sec. 3. An offense under this article is a Class B misdemeanor.

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, § 1, eff. Aug. 29, 1977.

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, § 1, eff. Aug. 27, 1979.

Art. 55.05. Notice of Right to Expunction

     On release or discharge of an arrested person, the person responsible for the release or discharge shall give him a written explanation of his rights under this chapter and a copy of the provisions of this chapter.

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, § 1, eff. Aug. 29, 1977.

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, § 1, eff. Aug. 27, 1979.

Art. 55.06. License Suspensions and Revocations

     Records relating to the suspension or revocation of a driver's license, permit, or privilege to operate a motor vehicle may not be expunged under this chapter except as provided in Section 524.015, Transportation Code, or Section 724.048 of that code.

Added by Acts 1993, 73rd Leg., ch. 886, § 16, eff. Jan. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 62, § 3.08, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1236, § 4, eff. Aug. 30, 1999.

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