HB463 - Relating to certain pretrial hearings for defendants charged with certain controlled substance offenses and the expunction of all records and files related to arrests for certain controlled substance offenses.

      By: Jones of Harris, Curry, Little, LaHood, H.B. No. 463       Plesa, et al.     A BILL TO BE ENTITLED   AN ACT   relating to certain pretrial hearings for defendants charged with   certain controlled substance offenses and the expunction of all   records and files related to arrests for certain controlled   substance offenses.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 1, Article 28.01, Code of Criminal   Procedure, is amended to read as follows:          Sec. 1.  The court may set any criminal case for a pre-trial   hearing before it is set for trial upon its merits, and direct the   defendant and the defendant's [ his ] attorney, if any of record, and   the State's attorney, to appear before the court at the time and   place stated in the court's order for a conference and hearing. The   defendant must be present at the arraignment, and the defendant's   [ his ] presence is required during any pre-trial proceeding. The   pre-trial hearing shall be to determine any of the following   matters:                (1)  Arraignment of the defendant, if [ such be ]   necessary; and appointment of counsel to represent the defendant,   if [ such be ] necessary;                (2)  Pleadings of the defendant;                (3)  Special pleas, if any;                (4)  Exceptions to the form or substance of the   indictment or information;                (5)  Motions for continuance either by the State or   defendant; provided that grounds for continuance not existing or   not known at the time may be presented and considered at any time   before the defendant announces ready for trial;                (6)  Motions to suppress evidence , and when [ --When ] a   hearing on the motion to suppress evidence is granted, the court may   determine the merits of the [ said ] motion on the motions   themselves, or upon opposing affidavits, or upon oral testimony,   subject to the discretion of the court;                (7)  Motions for change of venue by the State or the   defendant; provided, however, that a motion [ such motions ] for   change of venue, if overruled at the pre-trial hearing, may be   renewed by the State or the defendant during the voir dire   examination of the jury;                (8)  Discovery;                (9)  Entrapment; [ and ]                (10)  Motion for appointment of interpreter ; and                 (11)     Motion to determine if a suspected controlled   substance contains a controlled substance .          SECTION 2.  Chapter 28, Code of Criminal Procedure, is   amended by adding Article 28.15 to read as follows:           Art.   28.15.     PRETRIAL HEARING ON PRESENCE OF A CONTROLLED   SUBSTANCE. (a) This article applies only to a defendant who is   charged with the commission of an offense under Subchapter D,   Chapter 481, Health and Safety Code, involving the manufacture,   delivery, or possession of a controlled substance.           (b)     On the written motion of a defendant requesting a   determination that a suspected controlled substance contains a   controlled substance, the court, at a pretrial hearing described by   Article 28.01, shall:                 (1)     determine whether the suspected controlled   substance contains a controlled substance; and                 (2)     issue written findings of fact and conclusions of   law supporting the determination.           (c)     At a hearing under this article, the attorney   representing the state has the burden of providing a laboratory   analysis showing that the suspected controlled substance contains a   controlled substance.           (d)     The court shall dismiss the criminal charge with   prejudice if:                 (1)     the laboratory analysis of the suspected   controlled substance finds no presence of a controlled substance;   or                   (2)     the attorney representing the state fails to   provide a laboratory analysis of the suspected controlled   substance.          SECTION 3.  Subchapter A, Chapter 55A, Code of Criminal   Procedure, is amended by adding Article 55A.007 to read as follows:           Art.   55A.007.     CERTAIN CONTROLLED SUBSTANCE OFFENSES. A   person to whom this subchapter applies is entitled to the   expunction of all records and files related to the arrest,   including, as applicable, any records and files related to a   conviction of the offense, if:                 (1)     the person is currently charged with, convicted   of, or placed on deferred adjudication community supervision under   Subchapter C, Chapter 42A, for an offense under Subchapter D,   Chapter 481, Health and Safety Code, involving the manufacture,   delivery, or possession of a controlled substance;                 (2)     a laboratory analysis of the suspected controlled   substance finds no presence of a controlled substance; and                 (3)     for a person who was convicted of or placed on   deferred adjudication community supervision for an offense, as   applicable:                       (A)     the person's sentence, including any term of   confinement or period of community supervision imposed and payment   of all fines and costs imposed, is finally discharged; or                       (B)     the person received a dismissal and discharge   under Article 42A.111 for the offense.          SECTION 4.  Article 55A.053(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  A person to whom this subchapter applies is entitled to   have all records and files relating to the arrest expunged if:                (1)  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, when presented at any time following the arrest, was   dismissed or quashed; and                (2)  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, Government Code, or former   law, subject to Subsection (b);                      (B)  the person completed a mental health court   program created under Chapter 125, Government Code, or former law,   subject to Subsection (c);                      (C)  the person completed a pretrial intervention   program authorized under Section 76.011, Government Code, other   than a program described by Paragraph (A) or (B);                      (D)   the person is charged with an offense under   Subchapter D, Chapter 481, Health and Safety Code, involving the   manufacture, delivery, or possession of a controlled substance and   a laboratory analysis of the suspected controlled substance finds   no presence of a controlled substance;                       (E)   the presentment of the indictment or   information was 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                       (F)  [ (E) ]  the indictment or information was   void.          SECTION 5.  Subchapter E, Chapter 55A, Code of Criminal   Procedure, is amended by adding Article 55A.2035 to read as   follows:           Art.   55A.2035.     NO CONTROLLED SUBSTANCE PRESENT. (a) A   trial court that is a district court or a district court in the   county in which the trial court is located shall enter an expunction   order for a person entitled to expunction under Article   55A.053(a)(2)(D) not later than the 30th day after the date the   court, as applicable:                 (1)     dismisses the case following a laboratory analysis   of a suspected controlled substance that finds no presence of a   controlled substance; or                 (2)  receives the information regarding the dismissal.           (b)     Notwithstanding any other law, a court that enters an   expunction order under this article may not charge any fee or assess   any cost for the expunction.          SECTION 6.  Article 55A.204, Code of Criminal Procedure, is   amended to read as follows:          Art. 55A.204.  DUTIES OF ATTORNEY REPRESENTING STATE   REGARDING EXPUNCTION ORDER.  The attorney representing the state   shall prepare an expunction order under Article 55A.202 , [ or ]   55A.203 , or 55A.2035 for the court's signature and notify the Texas   Department of Criminal Justice if the person who is the subject of   the order is in the custody of the department.          SECTION 7.  Article 55A.205, Code of Criminal Procedure, is   amended to read as follows:          Art. 55A.205.  REQUIRED CONTENT OF EXPUNCTION ORDER.  In an   expunction order entered under Article 55A.202 , [ or ] 55A.203, or   55A.2035, the court shall:                (1)  provide 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; and                (2)  require that:                      (A)  the Texas Department of Criminal Justice send   to the court any documents delivered to the department under   Section 8(a), Article 42.09; and                      (B)  the Department of Public Safety and the Texas   Department of Criminal Justice delete or redact, as appropriate,   from their public records all index references to the records and   files that are subject to the expunction order.          SECTION 8.  Article 55A.251, Code of Criminal Procedure, is   amended to read as follows:          Art. 55A.251.  FILING OF PETITION. (a) A person who is   entitled to expunction of records and files under Article 55A.002,   55A.004, or 55A.005 or Subchapter B, or a person who is eligible for   expunction of records and files under Article 55A.101, may, subject   to Article 55A.252, file an ex parte petition for expunction in a   district court for the county in which:             &#x [Text truncated for display. Full text available on Congress.gov.]