Art. 55.02. Procedure for Expunction | Statutes | Westlaw

Art. 55.02. Procedure for Expunction | Statutes | Westlaw

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Art. 55.02. Procedure for Expunction

TX CRIM PRO Art. 55.02Vernon's Texas Statutes and Codes AnnotatedCode of Criminal ProcedureEffective: September 1, 2023 (Approx. 8 pages)

Art. 55.02. Procedure for Expunction

TX CRIM PRO Art. 55.02Vernon's Texas Statutes and Codes AnnotatedCode of Criminal ProcedureEffective: September 1, 2023 (Approx. 8 pages)

Vernon's Texas Statutes and Codes Annotated
Code of Criminal Procedure (Refs & Annos)
Title 1. Code of Criminal Procedure
Miscellaneous Proceedings
Chapter 55. Expunction of Criminal Records (Refs & Annos)
Effective: September 1, 2023
Vernon's Ann.Texas C.C.P. Art. 55.02
Art. 55.02. Procedure for Expunction
Sec. 1. At the request of the acquitted person and after notice to the state, or at the request of the attorney for the state with the consent of the acquitted person, the trial court presiding over the case in which the person was acquitted, if the trial court is a district court, a justice court, or a municipal court of record, or a district court in the county in which the trial court is located 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. On acquittal, the trial court shall advise the acquitted person of the right to expunction. The party requesting the order of expunction shall provide to the court all of the information required in a petition for expunction under Section 2(b). The attorney for the acquitted person in the case in which the person was acquitted, if the person was represented by counsel, or the attorney for the state, if the person was not represented by counsel or if the attorney for the state requested the order of expunction, shall prepare the order for the court's signature.
Sec. 1a. (a) The trial court presiding over a case in which a person is convicted and subsequently granted relief or pardoned on the basis of actual innocence of the offense of which the person was convicted, if the trial court is a district court, a justice court, or a municipal court of record, or a district court in the county in which the trial court is located shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(B)(ii) not later than the 30th day after the date the court receives notice of the pardon or other grant of relief. The person shall provide to the court all of the information required in a petition for expunction under Section 2(b).
(a-1) A trial court dismissing a case following a person's successful completion of a veterans treatment court program created under Chapter 124, Government Code, or former law, if the trial court is a district court, or a district court in the county in which the trial court is located may, with the consent of the attorney representing the state, enter an order of expunction for a person entitled to expunction under Article 55.01(a)(2)(A)(ii)(a) not later than the 30th day after the date the court dismisses the case or receives the information regarding that dismissal, as applicable. Notwithstanding any other law, a court that enters an order for expunction under this subsection may not charge any fee or assess any cost for the expunction.
(a-2) A trial court dismissing a case following a person's successful completion of a mental health court program created under Chapter 125, Government Code, or former law, if the trial court is a district court, or a district court in the county in which the trial court is located may, with the consent of the attorney representing the state, enter an order of expunction for a person entitled to expunction under Article 55.01(a)(2)(A)(ii)(b) not later than the 30th day after the date the court dismisses the case or receives the information regarding that dismissal, as applicable. Notwithstanding any other law, a court that enters an order for expunction under this subsection may not charge any fee or assess any cost for the expunction.
(b) The attorney for the state shall:
(1) prepare an expunction order under this section for the court's signature; and
(2) notify the Texas Department of Criminal Justice if the person is in the custody of the department.
(c) The court shall include in an expunction order under this section a listing of each official, agency, or other entity of this state or political subdivision of this state and each private entity that there is reason to believe has any record or file that is subject to the order. The court shall also provide in an expunction order under this section that:
(1) the Texas Department of Criminal Justice shall send to the court the documents delivered to the department under Section 8(a), Article 42.09; and
(2) the Department of Public Safety and the Texas Department of Criminal Justice shall delete or redact, as appropriate, from their public records all index references to the records and files that are subject to the expunction order.
(d) The court shall retain all documents sent to the court under Subsection (c)(1) until the statute of limitations has run for any civil case or proceeding relating to the wrongful imprisonment of the person subject to the expunction order.
Sec. 2. (a) A person who is entitled to expunction of records and files under Article 55.01(a)(1)(A), 55.01(a)(1)(B)(i), 55.01(a)(1)(C), 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:
(1) the petitioner was arrested; or
(2) the offense was alleged to have occurred.
(a-1) If the arrest for which expunction is sought is for an offense punishable by fine only, a person who is entitled to expunction of records and files under Article 55.01(a) 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 justice court or a municipal court of record in the county in which:
(1) the petitioner was arrested; or
(2) the offense was alleged to have occurred.
(b) A petition filed under Subsection (a) or (a-1) must be verified and must 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) together with the applicable physical or e-mail addresses, a list of all:
(A) 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;
(B) central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction; and
(C) private entities that compile and disseminate for compensation criminal history record information that the petitioner has reason to believe have information related to 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 to each official or agency or other governmental entity named in the petition reasonable notice of the hearing by:
(1) certified mail, return receipt requested; or
(2) secure electronic mail, electronic transmission, or facsimile transmission.
(c-1) An entity described by Subsection (c) may be represented by the attorney responsible for providing the entity with legal representation in other matters.
(d) If the court finds that the petitioner, or a person for whom an ex parte petition is filed under Subsection (e), is entitled to expunction of any records and files that are the subject of the petition, it shall enter an order directing expunction.
(e) The director of the Department of Public Safety or the director's authorized representative may file on behalf of a person described by Subsection (a) of this section or by Section 2a an ex parte petition for expunction in a district court for the county in which:
(1) the person was arrested; or
(2) the offense was alleged to have occurred.
(f) An ex parte petition filed under Subsection (e) must be verified and must include the following or an explanation for why one or more of the following is not included:
(1) the person'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 person;
(3) the date the offense charged against the person was alleged to have been committed;
(4) the date the person was arrested;
(5) the name of the county where the person was arrested and if the arrest occurred in a municipality, the name of the municipality;
(6) the name of the agency that arrested the person;
(7) the case number and court of offense; and
(8) together with the applicable physical or e-mail addresses, a list of all:
(A) 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;
(B) central federal depositories of criminal records that the person has reason to believe have records or files that are subject to expunction; and
(C) private entities that compile and disseminate for compensation criminal history record information that the person has reason to believe have information relating to records or files that are subject to expunction.
Sec. 2a. (a) A person who is entitled to expunction of information contained in records and files under Article 55.01(d) may file an application for expunction with the attorney representing the state in the prosecution of felonies in the county in which:
(1) the person resides; or
(2) the offense was alleged to have occurred.
(b) The application must be verified, include authenticated fingerprint records of the applicant, and include the following or an explanation for why one or more of the following is not included:
(1) the applicant's full name, sex, race, date of birth, driver's license number, social security number, and address at the time of the applicable arrest;
(2) the following information regarding the arrest:
(A) the date of arrest;
(B) the offense charged against the person arrested;
(C) the name of the county or municipality in which the arrest occurred; and
(D) the name of the arresting agency; and
(3) a statement, as appropriate, that the applicant:
(A) was arrested solely as a result of identifying information that was inaccurate due to a clerical error; or
(B) is not the person arrested and for whom the arrest records and files were created and did not give the arrested person consent to falsely identify himself or herself as the applicant.
(c) After verifying the allegations in an application received under Subsection (a), the attorney representing the state shall:
(1) include on the application information regarding the arrest that was requested of the applicant but was unknown by the applicant;
(2) forward a copy of the application to the district court for the county;
(3) together with the applicable physical or e-mail addresses, attach to the copy a list of all:
(A) 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;
(B) central federal depositories of criminal records that are reasonably likely to have records or files containing information that is subject to expunction; and
(C) private entities that compile and disseminate for compensation criminal history record information that are reasonably likely to have records or files containing information that is subject to expunction; and
(4) request the court to enter an order directing expunction based on an entitlement to expunction under Article 55.01(d).
(d) On receipt of a request under Subsection (c), the court shall, without holding a hearing on the matter, enter a final order directing expunction.
Sec. 3. (a) In an order of expunction issued under this article, the court shall require any state agency that sent information concerning the arrest to a central federal depository to request the 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 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 66.251(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 to the director of the Department of Public Safety for purposes of Section 411.151, Government Code, to the Crime Records Service of the department, Department of Public Safety and to each official or agency or other governmental entity of this state or of any political subdivision of this state named in the order. The certified copy of the order must be sent by secure electronic mail, electronic transmission, or facsimile transmission or otherwise by certified mail, return receipt requested. In sending the order to a governmental entity named in the order, the clerk may elect to substitute hand delivery for certified mail under this subsection, but the clerk must receive a receipt for that hand-delivered order.
(c-1) The Department of Public Safety shall notify any central federal depository of criminal records by any means, including secure electronic mail, electronic transmission, or facsimile transmission, of the order with an explanation of the effect of the order and a request that the depository, as appropriate, either:
(1) destroy or return to the court the records in possession of the depository that are subject to the order, including any information with respect to the order; or
(2) comply with Section 5(f) pertaining to information contained in records and files of a person entitled to expunction under Article 55.01(d).
(c-2) The Department of Public Safety shall also provide, by secure electronic mail, electronic transmission, or facsimile transmission, notice of the order to any private entity that is named in the order or that purchases criminal history record information from the department. The notice must include an explanation of the effect of the order and a request that the entity destroy any information in the possession of the entity that is subject to the order. The department may charge to a private entity that purchases criminal history record information from the department a fee in an amount sufficient to recover costs incurred by the department in providing notice under this subsection to the entity.
(d) Any 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 expunction 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.
(a-1) The court shall provide in its expunction order that the applicable law enforcement agency and prosecuting attorney may retain the arrest records and files of any person who becomes entitled to an expunction of those records and files based on the expiration of a period described by Article 55.01(a)(2)(A)(i)(a), (b), or (c), but without the certification of the prosecuting attorney as described by Article 55.01(a)(2)(A)(i)(d).
(a-2) 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-1) or (a-2), the provisions of Articles 55.03 and 55.04 apply to files and records retained under this section.
Sec. 5. (a) Except as provided by Subsections (f) and (g), on receipt of the order, each official or agency or other governmental entity named in the order shall:
(1) return all records and files that are subject to the expunction order to the court or in cases other than those described by Section 1a, 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 or an expunction order based on an entitlement under Article 55.01(d), 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) Except in the case of a person who is the subject of an expunction order based on an entitlement under Article 55.01(d) and except as provided by Subsection (g), 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 or an expunction order based on an entitlement under Article 55.01(d) and except as provided by Subsection (g), the clerk of the court shall destroy all the files or other records maintained under Subsection (c) not earlier than the 60th day after the date the order of expunction is issued or later than the first anniversary of that date unless the records or files were released under Subsection (b).
(d-1) Not later than the 30th day before the date on which the clerk destroys files or other records under Subsection (d), the clerk shall provide notice by mail, electronic mail, or facsimile transmission to the attorney representing the state in the expunction proceeding. If the attorney representing the state in the expunction proceeding objects to the destruction not later than the 20th day after receiving notice under this subsection, the clerk may not destroy the files or other records until the first anniversary of the date the order of expunction is issued or the first business day after that date.
(e) The clerk shall certify to the court the destruction of files or other records under Subsection (d) of this section.
(f) On receipt of an order granting expunction to a person entitled to expunction under Article 55.01(d), each official, agency, or other governmental entity named in the order:
(1) shall:
(A) obliterate all portions of the record or file that identify the petitioner; and
(B) substitute for all obliterated portions of the record or file any available information that identifies the person arrested; and
(2) may not return the record or file or delete index references to the record or file.
(g) Notwithstanding any other provision in this section, an official, agency, court, or other entity may retain receipts, invoices, vouchers, or similar records of financial transactions that arose from the expunction proceeding or prosecution of the underlying criminal cause in accordance with internal financial control procedures. An official, agency, court, or other entity that retains records under this subsection shall obliterate all portions of the record or the file that identify the person who is the subject of the expunction order.

Credits

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, § 1, eff. Aug. 27, 1979; Acts 1989, 71st Leg., ch. 803, §§ 2 to 4, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 380, § 1, eff. Aug. 26, 1991; Acts 1999, 76th Leg., ch. 1236, § 2, eff. Aug. 30, 1999; Acts 2001, 77th Leg., ch. 945, § 2, 3, eff. June 14, 2001; Acts 2001, 77th Leg., ch. 1021, § 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 339, §§ 2 to 4, 7 eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 404, §§ 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1126, § 1, eff. June 20, 2003; Acts 2003, 78th Leg., ch. 1236, § 2, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, § 4.006, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 177, §§ 1, 2, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 1309, § 2, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 120, § 1, eff. Sept. 1, 2007; Acts 2007, 80th Leg., ch. 1017, §§ 1 to 4, eff. Sept. 1, 2007; Acts 2011, 82nd Leg., ch. 91 (S.B. 1303), § 6.002, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 278 (H.B. 1573), §§ 3, 4, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 690 (H.B. 351), §§ 2 to 6, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 894 (S.B. 462), § 2, eff. Sept. 1, 2011; Acts 2017, 85th Leg., ch. 693 (H.B. 322), § 2, eff. Sept. 1, 2017; Acts 2017, 85th Leg., ch. 1058 (H.B. 2931), § 4.04, eff. Jan. 1, 2019; Acts 2017, 85th Leg., ch. 1062 (H.B. 3147), § 2, eff. Sept. 1, 2017; Acts 2017, 85th Leg., ch. 1149 (H.B. 557), §§ 2 to 4, eff. Sept. 1, 2017; Acts 2019, 86th Leg., ch. 1212 (S.B. 562), § 20, eff. June 14, 2019; Acts 2021, 87th Leg., ch. 809 (H.B. 1927), § 5, eff. Sept. 1, 2021; Acts 2023, 88th Leg., ch. 543 (H.B. 3956), § 2, eff. Sept. 1, 2023; Acts 2023, 88th Leg., ch. 861 (H.B. 3474), § 12.006(a), eff. Sept. 1, 2023.
Vernon's Ann. Texas C. C. P. Art. 55.02, TX CRIM PRO Art. 55.02
Current through the end of the 2023 Regular, Second, Third and Fourth Called Sessions of the 88th Legislature, and the Nov. 7, 2023 general election.
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