John T. Floyd Law Firm
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CODE OF CRIMINAL PROCEDURE CHAPTER 55.
EXPUNCTION OF CRIMINAL RECORDS
Art. 55.01. Right to Expunction
(a) A person who has been placed under a custodial or noncustodial
arrest 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, the indictment or
information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a
petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was
dismissed or quashed 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 for
any offense other than a Class C misdemeanor; 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.
(d) A person is entitled to have any information that identifies the
person, including the person's name, address, date of birth,
driver's license number, and social security number, contained in
records and files relating to the arrest of another person expunged
if:
(1) the information identifying the person asserting the
entitlement to expunction was falsely given by the person arrested
as the arrested person's identifying information without the
consent of the person asserting the entitlement; and
(2) the only reason for the information identifying the person
asserting the entitlement being contained in the arrest records and
files of the person arrested is that the information was falsely
given by the person arrested as the arrested person's identifying
information.
Added by Acts 1977, 65th Leg., p. 1880, ch. 747, Sec. 1, eff. Aug.
29, 1977.
Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 1, eff. Aug.
27, 1979; Acts 1989, 71st Leg., ch. 803, Sec. 1, eff. Sept. 1, 1989;
Subsec. (2) amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(53),
eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 900, Sec.
7.02(a), eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1236, Sec.
1, eff. Aug. 30, 1999; Subsec. (a) amended by Acts 2001, 77th Leg.,
ch. 1021, Sec. 1, eff. Sept. 1, 2001; Subsec. (d) added by Acts
2001, 77th Leg., ch. 945, Sec. 1, eff. June 14, 2001; Subsec. (a)
amended by Acts 2003, 78th Leg., ch. 1236, Sec. 1, eff. Sept. 1,
2003.
Art. 55.02. Procedure for Expunction
Sec. 1. At the request of the defendant and after notice to the
state, the trial court presiding over the case in which the
defendant was acquitted, if the trial court is a district court, 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. Upon acquittal, the trial court
shall advise the defendant of the right to expunction. The
defendant shall provide to the district court all of the
information required in a petition for expunction under Section
2(b). The attorney for the defendant in the case in which the
defendant was acquitted, if the defendant was represented by
counsel, or the attorney for the state, if the defendant was not
represented by counsel, shall prepare the order for the court's
signature.
Text of sec. 2, subsec. (a) as amended by Acts 2003, 78th Leg., ch. 339, Sec. 2
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:
(1) the petitioner was arrested; or
(2) the offense was alleged to have occurred.
Text of sec. 2, subsec. (a) as amended by Acts 2003, 78th Leg., ch. 1236, Sec. 2
Sec. 2. (a) A person who is entitled to expunction of records and
files under Article 55.01(a) or (d) 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;
(2) the person who falsely identified himself or herself as the
petitioner was arrested, if the petitioner relies on an entitlement
under Article 55.01(d); or
(3) 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.
(e) Repealed by Acts 2003, 78th Leg., ch. 339, Sec. 7.
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 the person
resides.
(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 the
person who falsely identified himself or herself as the applicant
was arrested;
(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 that:
(A) the applicant is not the person arrested and for whom the arrest
records and files were created; and
(B) the applicant did not give the person arrested 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) attach to the copy 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 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 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 by hand delivery or certified mail, return
receipt requested, 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 clerk of the
court must receive a receipt for each order delivered by hand under
this subsection. 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 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) of this article pertaining to
information contained in records and files of a person entitled to
expunction under Article 55.01(d).
(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) Except as provided by Subsection (f), 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 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), 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), 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 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.
Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 1, eff. Aug.
27, 1979; Sec. 1(b) amended by Acts 1989, 71st Leg., ch. 803, Sec.
2, eff. Sept. 1, 1989; Sec. 3(a) amended by Acts 1989, 71st Leg.,
ch. 803, Sec. 3, eff. Sept. 1, 1989; Sec. 5(d), (e) added by Acts
1989, 71st Leg., ch. 803, Sec. 4, eff. Sept. 1, 1989; Sec. 3(a)
amended by Acts 1991, 72nd Leg., ch. 380, Sec. 1, eff. Aug. 26,
1991; Acts 1999, 76th Leg., ch. 1236, Sec. 2, eff. Aug. 30, 1999;
Sec. 2(a), (b) amended by and Sec. 2(e) added by Acts 2001, 77th
Leg., ch. 945, Sec. 2, eff. June 14, 2001; Sec. 3(c) amended by Acts
2001, 77th Leg., ch. 1021, Sec. 2, eff. Sept. 1, 2001; Sec. 5
amended by Acts 2001, 77th Leg., ch. 945, Sec. 3, eff. June 14,
2001; Sec 1 amended by Acts 2003, 78th Leg., ch. 404, Sec. 1, eff.
Sept. 1, 2003; Sec. 2(a) amended by Acts 2003, 78th Leg., ch. 339,
Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1236, Sec. 2,
eff. Sept. 1, 2003; Sec. 2(e) amended by Acts 2003, 78th Leg., ch.
339, Sec. 7, eff. Sept. 1, 2003; Sec. 2(a) added by Acts 2003, 78th
Leg., ch. 339, Sec. 3, eff. Sept. 1, 2003; Sec. 3(a), 3(b) amended
by Acts 2003, 78th Leg., ch. 404, Sec. 2, eff. Sept. 1, 2003; Sec.
3(c) amended by Acts 2003, 78th Leg., ch. 339, Sec. 4, eff. Sept. 1,
2003; Sec. 1 amended by Acts 2003, 78th Leg., ch. 404, Sec. 1, eff.
Sept. 1, 2003; Sec. 3(a), 3(b) amended by Acts 2003, 78th Leg., ch.
404, Sec. 2, eff. Sept. 1, 2003; Sec. 5(d) amended by Acts 2003,
78th Leg., ch. 1126, Sec. 1, eff. June 20, 2003; Sec. 5(d-1) added
by Acts 2003, 78th Leg., ch. 1126, Sec. 1, eff. June 20, 2003.
Art. 55.03. Effect of Expunction
When the order of expunction is final:
(1) the release, dissemination, or use of the expunged records and
files for any purpose other than a purpose described by Section
411.083(a) or (b)(1), (2), or (3), Government Code, 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, Sec. 1, eff. Aug.
29, 1977.
Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 1, eff. Aug.
27, 1979; Acts 1999, 76th Leg., ch. 1236, Sec. 3, eff. Aug. 30,
1999; Acts 2001, 77th Leg., ch. 1021, Sec. 3, eff. Sept. 1, 2001;
Acts 2003, 78th Leg., ch. 1236, Sec. 3, eff. Sept. 1, 2003.
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, Sec. 1, eff. Aug.
29, 1977.
Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 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, Sec. 1, eff. Aug.
29, 1977.
Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 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, Sec. 16, eff. Jan. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 62, Sec. 3.08, eff. Sept. 1,
1999; Acts 1999, 76th Leg., ch. 1236, Sec. 4, eff. Aug. 30, 1999.
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