Tex.
Code of Crim. Proc. Article 55.011
Right of Close Relative to Seek Expunction on Behalf of Deceased Person
(a)
In this article, “close relative of a deceased person” means the grandparent, parent, spouse, or adult brother, sister, or child of a deceased person.(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);(B)
convicted and subsequently:(i)
pardoned for a reason other than that described by Subparagraph (ii); or(ii)
pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or(C)
convicted of an offense committed before September 1, 2021, under Section 46.02 (Unlawful Carrying Weapons)(a), Penal Code, as that section existed before that date; or(2)
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 Chapter 42A (Community Supervision) for the offense, unless the offense is a Class C misdemeanor, provided that:(A)
regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:(i)
has not been presented against the person at any time following the arrest, and:(a)
at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;(b)
at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;(c)
at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or(d)
the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or(ii)
if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because:(a)
the person completed a veterans treatment court program created under Chapter 124 (Veterans Treatment Court Program), Government Code, or former law, subject to Subsection (a-3);(b)
the person completed a mental health court program created under Chapter 125 (Mental Health Court Programs), Government Code, or former law, subject to Subsection (a-4);(c)
the person completed a pretrial intervention program authorized under Section 76.011 (Operation of Certain Services and Programs), Government Code, other than a veterans treatment court program created under Chapter 124 (Veterans Treatment Court Program), Government Code, or former law, or a mental health court program created under Chapter 125 (Mental Health Court Programs), Government Code, or former law;(d)
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(e)
the indictment or information was void; or(B)
prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.(a-1)
Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Article 42A.751 (Violation of Conditions of Community Supervision; Detention and Hearing)(b).(a-2)
Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 (Bail) following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest.(a-3)
A person is eligible under Subsection (a)(2)(A)(ii)(a) for an expunction of arrest records and files only if:(1)
the person has not previously received an expunction of arrest records and files under that sub-subparagraph; and(2)
the person submits to the court an affidavit attesting to that fact.(a-4)
A person is eligible under Subsection (a)(2)(A)(ii)(b) for an expunction of arrest records and files only if:(1)
the person has not previously received an expunction of arrest records and files under that sub-subparagraph; and(2)
the person submits to the court an affidavit attesting to that fact.(b)
Except as provided by Subsection (c) and subject to Subsection (b-1), a district court, a justice court, or a municipal court of record may expunge all records and files relating to the arrest of a person under the procedure established under Article 55.02 if:(1)
the person is:(A)
tried for the offense for which the person was arrested;(B)
convicted of the offense; and(C)
acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or(2)
an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.(b-1)
A justice court or a municipal court of record may only expunge records and files under Subsection (b) that relate to the arrest of a person for an offense punishable by fine only.(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, a court of appeals, 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 (Definition), 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 obtain the expunction of 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 person’s arrest or the arrest of another person if:(1)
the expunction of identifying information is sought with respect to the arrest of the person asserting the entitlement and the person was arrested solely as a result of identifying information that was inaccurate due to a clerical error; or(2)
the expunction of identifying information is sought with respect to the arrest of a person other than the person asserting the entitlement and:(A)
the information identifying the person asserting the entitlement was falsely given by the arrested person as the arrested person’s identifying information without the consent of the person asserting the entitlement; and(B)
the only reason why the identifying information of the person asserting the entitlement is contained in the applicable arrest records and files is because of the deception of the arrested person.(e)
For purposes of this article, records and files relating to an arrest include:(1)
a DNA record created under Subchapter G (Definitions), Chapter 411 (Department of Public Safety of the State of Texas), Government Code;(2)
any record of the collection of the specimen from which the DNA record was created; and(3)
any record of the transfer of the specimen to the Department of Public Safety.(b)
A close relative of a deceased person who, if not deceased, would be entitled to expunction of records and files under Article 55.01 may file on behalf of the deceased person an ex parte petition for expunction under Section 2 or 2a, Article 55.02. If the court finds that the deceased person would be entitled to expunction of any record or file that is the subject of the petition, the court shall enter an order directing expunction.(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 (Veterans Treatment Court Program), 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 (Mental Health Court Programs), 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.(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.(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.(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 (Uniform Incident Fingerprint Card)(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 (Expunction or Removal of Dna Records), Government Code, to the Crime Records Service of the department, 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.(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 (Effect of Expunction) and 55.04 apply to files and records retained under this section.(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.
Source:
Article 55.011 — Right of Close Relative to Seek Expunction on Behalf of Deceased Person, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.55.htm#55.011 (accessed Jun. 5, 2024).
