|
INTRODUCED
|
HOUSE COMMITTEE
SUBSTITUTE
|
|
SECTION 1. Chapter 42, Code
of Criminal Procedure, is amended by adding Article 42.13 to read as
follows:
Art. 42.13. SETTING ASIDE
CONVICTION FOR VICTIMS OF TRAFFICKING OF PERSONS. (a) A court in which a
defendant has been convicted of an offense under Section 43.02, Penal Code,
may, if the court retains jurisdiction in the case, hear a petition from
the defendant to set aside the order of conviction. The petition must
allege specific facts that, if proved, would establish that the petitioner
engaged in prostitution solely as a victim of an offense under Section
20A.02(a)(3) or (7), Penal Code. The petitioner may submit with the
petition a document of a federal, state, local, or tribal governmental
agency indicating that the petitioner engaged in prostitution solely as a
victim of trafficking of persons.
(b) On the filing of the
petition under Subsection (a), the clerk of the court shall promptly serve
a copy of the petition and any supporting document on the appropriate
office of the attorney representing the state. Any response to the
petition by the attorney representing the state must be filed not later
than the 15th business day after the date of service under this subsection.
(c) If in considering the
petition, any supporting document, and any response of the attorney
representing the state the court finds that there are reasonable grounds to
believe the facts alleged in the petition or if the petitioner submits a
document of a governmental agency described by Subsection (a), the court
shall order a hearing on the petition. The court shall dismiss the petition
and shall promptly notify the petitioner of the court's decision if the
court finds that there are not any reasonable grounds to believe the
alleged facts exist or if the petitioner has filed a previous petition
under this article based solely on the same evidence. The court may not
dismiss the petition if the petitioner submits a document of a governmental
agency described by Subsection (a).
(d) After the court
orders a hearing under this article, the court, as the court considers
necessary to ensure a fair hearing on the petition, may order any discovery
from the attorney representing the state or from the petitioner. An order
of discovery may include any order for probative evidence relevant to
proving or disproving the petitioner's claim of having engaged in the
conduct for which the person was convicted under Section 43.02, Penal Code,
solely as a victim of an offense under Section 20A.02(a)(3) or (7), Penal
Code. A document of a governmental agency described by Subsection (a)
creates a presumption that the petitioner's claim is true.
(e) If after the court
orders a hearing under this article the court finds that, based on the
sworn statements of the petitioner or based on submitted evidence or
affidavits, the petitioner is not represented by an attorney and is
indigent, the court shall appoint an attorney to represent the petitioner
at the hearing and, if appropriate, before the court of appeals and the
court of criminal appeals.
(f) At the conclusion of
the hearing, the court shall make a finding as to whether the petitioner's
claim of having engaged in prostitution solely as a victim of trafficking
of persons is true.
(g) The court may set
aside the order of conviction for the offense under Section 43.02, Penal
Code, if the court finds that the petitioner engaged in prostitution solely
as a victim of trafficking of persons and that set-aside is in the best
interest of justice.
(h) The court reporter
shall record a hearing under this article. If the court makes a finding
that the petitioner engaged in prostitution solely as a victim of
trafficking of persons, and if the petitioner is indigent, the court
reporter shall transcribe the hearing, including the finding, at the
county's expense. The entire record must be included with an application for
appeal filed as described by this article.
(i) The petitioner and
the attorney representing the state may appeal the findings of the court in
the same manner as an appeal of a conviction in a criminal case.
(j) A petition for a
finding that the petitioner engaged in prostitution solely as a victim of
trafficking of persons filed under this article and a proceeding conducted
under this article do not constitute an application for a writ of habeas
corpus or a proceeding based on an application for a writ of habeas
corpus. A restriction on filing a subsequent application for a writ of
habeas corpus imposed by Article 11.07 does not apply to a petition or
proceeding under this article.
(k) This article is not
intended to preclude a petitioner from receiving a reduction or termination
of community supervision and a set-aside of verdict under Section 20,
Article 42.12, if the petitioner is otherwise qualified to receive a
dismissal under that section.
|
No
equivalent provision. (But see SECTION 2 below.)
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
|
|
SECTION 2. Chapter 48, Code
of Criminal Procedure, is amended by adding Article 48.07 to read as
follows:
Art. 48.07. PETITION FOR
PARDON FOR CERTAIN TRAFFICKING-VICTIM OFFENDERS; JUDICIAL PROCEEDINGS. (a)
In this article, a person is considered to have been convicted in a case
if:
(1) a judgment, a
sentence, or both a judgment and a sentence are imposed on the person;
(2) the person receives
community supervision, deferred adjudication, or deferred disposition; or
(3) the court defers
final disposition of the case or imposition of the judgment and sentence.
(b) This article applies
only to a person described by Subsection (c) who is unable to obtain relief
under Section 20, Article 42.12, or Article 42.13 because the convicting
court no longer retains jurisdiction over the case.
(c) A person convicted of
an offense under Section 43.02, Penal Code, may file in the court of
conviction a petition alleging specific facts that, if proved, would
establish that the petitioner engaged in prostitution solely as a victim of
an offense under Section 20A.02(a)(3) or (7), Penal Code. The petitioner
may submit with the petition a document of a federal, state, local, or
tribal governmental agency indicating that the petitioner engaged in
prostitution solely as a victim of trafficking of persons.
(d) On the filing of the
petition under Subsection (c), the clerk of the court shall promptly serve
a copy of the petition and any supporting document on the appropriate
office of the attorney representing the state. Any response to the
petition by the attorney representing the state must be filed not later
than the 15th business day after the date of service under this subsection.
(e) If in considering the
petition, any supporting document, and any response of the attorney
representing the state the court finds that there are reasonable grounds to
believe the facts alleged in the petition or if the petitioner submits a
document of a governmental agency described by Subsection (a), the court
shall order a hearing on the petition. The court shall dismiss the
petition and shall promptly notify the petitioner of the court's decision
if the court finds that there are not any reasonable grounds to believe the
alleged facts exist or if the petitioner has filed a previous petition
under this article based solely on the same evidence. The court may not
dismiss the petition if the petitioner submits a document of a governmental
agency described by Subsection (a).
(f) After the court
orders a hearing under this article, the court, as the court considers
necessary to ensure a fair hearing on the petition, may order any discovery
from the attorney representing the state or from the petitioner. An order
of discovery may include any order for probative evidence relevant to
proving or disproving the petitioner's claim of having engaged in
prostitution solely as a victim of an offense under Section 20A.02(a)(3) or
(7), Penal Code. A document of a governmental agency described by
Subsection (a) creates a presumption that the petitioner's claim is true.
(g) If after the court
orders a hearing under this article the court finds that, based on the
sworn statements of the petitioner or based on submitted evidence or
affidavits, the petitioner is not represented by an attorney and is
indigent, the court shall appoint an attorney to represent the petitioner
at the hearing and, if appropriate, before the court of appeals and the
court of criminal appeals.
(h) At the conclusion of
the hearing, the court shall make a finding as to whether the petitioner's
claim of having engaged in prostitution solely as a victim of trafficking
of persons is true. A finding that the petitioner did engage in
prostitution solely as a victim of trafficking of persons does not
authorize the court to set aside a conviction of the offense if the court
is not authorized to set aside that sentence under other law.
(i) If the court finds
that the petitioner engaged in prostitution solely as a victim of
trafficking of persons, the petitioner may file an application for a
pardon, but the application may not be filed later than the 90th day after
the date the court makes the finding.
(j) The court reporter
shall record a hearing under this article. If the court makes a finding
that the petitioner engaged in prostitution solely as a victim of
trafficking of persons, and if the petitioner is indigent, the court
reporter shall transcribe the hearing, including the finding, at the county's
expense. The entire record must be included with an application for a
pardon filed as described by this article.
(k) The petitioner and
the attorney representing the state may appeal the findings of the court in
the same manner as an appeal of a conviction in a criminal case.
(l) A petition for a
finding that the petitioner engaged in prostitution solely as a victim of
trafficking of persons filed under this article and a proceeding conducted
under this article do not constitute an application for a writ of habeas
corpus or a proceeding based on an application for a writ of habeas corpus.
A restriction on filing a subsequent application for a writ of habeas
corpus imposed by Article 11.07 does not apply to a petition or proceeding
under this article.
|
No
equivalent provision. (But see SECTION 2 below.)
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
|
|
SECTION 3. Section 5,
Article 42.12, Code of Criminal Procedure, is amended by adding Subsection
(k) to read as follows:
(k) If a judge dismisses
proceedings against a defendant charged with an offense under Section
43.02, Penal Code, and discharges the defendant, the judge may attach to
the papers in the case a statement that the defendant engaged in the
applicable conduct solely as a victim of an offense under Section
20A.02(a)(3) or (7), Penal Code.
|
No
equivalent provision.
|
|
SECTION 4. Article 55.01,
Code of Criminal Procedure, is amended by adding Subsection (a-3) to read
as follows:
(a-3) A person who has
been placed under a custodial or noncustodial arrest for commission of an
offense under Section 43.02, Penal Code, is entitled to have all records
and files relating to the arrest expunged in the same manner provided for a
person described by Subsection (a), if a court determines under Article
42.13(f) or 48.07(h) that the person engaged in prostitution solely as a
victim of trafficking of persons.
|
No
equivalent provision.
|
|
SECTION 5. (a) Articles
42.13 and 48.07, Code of Criminal Procedure, as added by this Act, apply to
a petition to set aside a conviction or for a pardon filed on or after the
effective date of this Act, regardless of whether the offense that is the
subject of the petition occurred before, on, or after the effective date of
this Act.
(b) Section 5(k), Article
42.12, Code of Criminal Procedure, as added by this Act, applies to a
discharge and dismissal that occurs on or after the effective date of this
Act, regardless of whether the offense for which the defendant was placed
on deferred adjudication community supervision occurred before, on, or
after the effective date of this Act.
(c) Article 55.01(a-3), Code
of Criminal Procedure, as added by this Act, applies to a petition for
expunction filed on or after the effective date of this Act, regardless of
whether the offense that is the subject of the petition occurred before,
on, or after the effective date of this Act.
|
No
equivalent provision.
|
|
No
equivalent provision.
|
SECTION 1. Section 109.005(a),
Business & Commerce Code, as added by Chapter 1200 (S.B. No. 1289),
Acts of the 83rd Legislature, Regular Session, 2013, is amended to read as
follows:
(a) A business entity may
not publish any criminal record information in the business entity's
possession with respect to which the business entity has knowledge or has
received notice that:
(1) an order of expunction
has been issued under Article 55.02, Code of Criminal Procedure; or
(2) an order of
nondisclosure has been issued under Section 411.081(d) or (d-1),
Government Code.
|
|
No
equivalent provision.
|
SECTION 2. Section 411.081,
Government Code, is amended by adding Subsection (d-1) and amending
Subsections (e), (f), (f-1), and (h) to read as follows:
(d-1)(1) This subsection
applies only to a person who on conviction for an offense under Section
43.02, Penal Code, is placed on community supervision under Article 42.12,
Code of Criminal Procedure, and with respect to whom the conviction is
subsequently set aside by the court under Section 20(a) of that article.
(2) Notwithstanding any
other provision of this subchapter, if a person to whom this subsection
applies satisfies the requirements of Subsection (e), the person may
petition the court that placed the person on community supervision for an
order of nondisclosure on the grounds that the person committed the offense
solely as a victim of trafficking of persons. After notice to the state,
an opportunity for a hearing, and a determination by the court that the
person committed the offense solely as a victim of trafficking of persons
and that issuance of the order is in the best interest of justice, the
court shall issue an order prohibiting criminal justice agencies from
disclosing to the public criminal history record information related to the
offense under Section 43.02, Penal Code, giving rise to the community
supervision. A criminal justice agency may disclose criminal history
record information that is the subject of the order only to other criminal
justice agencies for criminal justice purposes, an agency or entity listed
in Subsection (i), or the person who is the subject of the order. A person
may petition the court that placed the person on community supervision for
an order of nondisclosure only after the person's conviction under Section
43.02, Penal Code, is set aside.
(e) A person is entitled to
petition the court under Subsection (d) or (d-1) only if during the
period of the community supervision, including deferred adjudication
community supervision, for which the order of nondisclosure is
requested and, for a petition under Subsection (d), only during the
applicable period described by Subdivision (1) [Subsection (d)(1)],
(2), or (3) of that subsection, as appropriate, the person is not
convicted of or placed on deferred adjudication community supervision under
Section 5, Article 42.12, Code of Criminal Procedure, for any offense other
than an offense under the Transportation Code punishable by fine only. A
person is not entitled to petition the court under Subsection (d) or
(d-1) if the person was placed on community supervision, including
[the] deferred adjudication community supervision, for,
or has been previously convicted of or placed on any other deferred
adjudication for:
(1) an offense requiring
registration as a sex offender under Chapter 62, Code of Criminal
Procedure;
(2) an offense under Section
20.04, Penal Code, regardless of whether the offense is a reportable
conviction or adjudication for purposes of Chapter 62, Code of Criminal
Procedure;
(3) an offense under Section
19.02, 19.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal Code; or
(4) any other offense
involving family violence, as defined by Section 71.004, Family Code.
(f) For purposes of Subsections
[Subsection] (d) and (e), a person is considered to have been
placed on deferred adjudication community supervision if, regardless of the
statutory authorization:
(1) the person entered a
plea of guilty or nolo contendere;
(2) the judge deferred
further proceedings without entering an adjudication of guilt and placed
the person under the supervision of the court or an officer under the
supervision of the court; and
(3) at the end of the period
of supervision, the judge dismissed the proceedings and discharged
the person.
(f-1) A person who petitions
the court for an order of nondisclosure under Subsection (d) or (d-1)
may file the petition in person, electronically, or by mail. The petition
must be accompanied by payment of a $28 fee to the clerk of the court in
addition to any other fee that generally applies to the filing of a civil
petition. The Office of Court Administration of the Texas Judicial System
shall prescribe a form for the filing of a petition electronically or by
mail. The form must provide for the petition to be accompanied by the
required fees and any other supporting material determined necessary by the
office of court administration, including evidence that the person is
entitled to file the petition. The office of court administration shall
make available on its Internet website the electronic application and
printable application form. Each county or district clerk's office that
maintains an Internet website shall include on that website a link to the
electronic application and printable application form available on the office
of court administration's Internet website. On receipt of a petition under
this subsection, the court shall provide notice to the state and an
opportunity for a hearing on whether the person is entitled to file the
petition and issuance of the order is in the best interest of justice. The
court shall hold a hearing before determining whether to issue an order of
nondisclosure, except that a hearing is not required if:
(1) the state does not
request a hearing on the issue before the 45th day after the date on which
the state receives notice under this subsection; and
(2) the court determines
that:
(A) the defendant is
entitled to file the petition; and
(B) the order is in the best
interest of justice.
(h) The clerk of a court
that collects a fee paid under Subsection (f-1) [(d)]
shall remit the fee to the comptroller not later than the last day of the
month following the end of the calendar quarter in which the fee is
collected, and the comptroller shall deposit the fee in the general revenue
fund. The Department of Public Safety shall submit a report to the
legislature not later than December 1 of each even-numbered year that
includes information on:
(1) the number of petitions
for nondisclosure and orders of nondisclosure received by the department in
each of the previous two years;
(2) the actions taken by the
department with respect to the petitions and orders received;
(3) the costs incurred by
the department in taking those actions; and
(4) the number of persons
who are the subject of an order of nondisclosure and who became the subject
of criminal charges for an offense committed after the order was issued.
|
|
No
equivalent provision.
|
SECTION 3. Section
411.081(i), Government Code, as amended by Chapters 42 (S.B. 966), 266
(H.B. 729), and 583 (S.B. 869), Acts of the 83rd Legislature, Regular
Session, 2013, is reenacted and amended to read as follows:
(i) A criminal justice
agency may disclose criminal history record information that is the subject
of an order of nondisclosure under Subsection (d) or (d-1) to the
following noncriminal justice agencies or entities only:
(1) the State Board for
Educator Certification;
(2) a school district,
charter school, private school, regional education service center,
commercial transportation company, or education shared service arrangement;
(3) the Texas Medical Board;
(4) the Texas School for the
Blind and Visually Impaired;
(5) the Board of Law
Examiners;
(6) the State Bar of Texas;
(7) a district court
regarding a petition for name change under Subchapter B, Chapter 45, Family
Code;
(8) the Texas School for the
Deaf;
(9) the Department of Family
and Protective Services;
(10) the Texas Juvenile
Justice Department;
(11) the Department of
Assistive and Rehabilitative Services;
(12) the Department of State
Health Services, a local mental health service, a local mental retardation
authority, or a community center providing services to persons with mental
illness or an intellectual disability [retardation];
(13) the Texas Private
Security Board;
(14) a municipal or
volunteer fire department;
(15) the Texas Board of
Nursing;
(16) a safe house providing
shelter to children in harmful situations;
(17) a public or nonprofit
hospital or hospital district, or a facility as defined by Section 250.001,
Health and Safety Code;
(18) the securities
commissioner, the banking commissioner, the savings and mortgage lending
commissioner, the consumer credit commissioner, or the credit union
commissioner;
(19) the Texas State Board
of Public Accountancy;
(20) the Texas Department of
Licensing and Regulation;
(21) the Health and Human
Services Commission;
(22) the Department of Aging
and Disability Services;
(23) the Texas Education
Agency;
(24) the Judicial Branch
Certification Commission;
(25) a county clerk's office
in relation to a proceeding for the appointment of a guardian under Title
3, Estates Code [Chapter XIII, Texas Probate Code];
(26) the Department of
Information Resources but only regarding an employee, applicant for
employment, contractor, subcontractor, intern, or volunteer who provides
network security services under Chapter 2059 to:
(A) the Department of
Information Resources; or
(B) a contractor or
subcontractor of the Department of Information Resources;
(27) the Texas Department of
Insurance;
(28) the Teacher Retirement
System of Texas; and
(29) [(30)]
the Texas State Board of Pharmacy.
|
|
No
equivalent provision.
|
SECTION 4. Section
411.0851(a), Government Code, is amended to read as follows:
(a) A private entity that
compiles and disseminates for compensation criminal history record
information shall destroy and may not disseminate any information in the
possession of the entity with respect to which the entity has received
notice that:
(1) an order of expunction
has been issued under Article 55.02, Code of Criminal Procedure; or
(2) an order of
nondisclosure has been issued under Section 411.081(d) or (d-1).
|
|
No
equivalent provision.
|
SECTION 5. Section 552.142,
Government Code, is amended to read as follows:
Sec. 552.142. EXCEPTION:
CONFIDENTIALITY OF RECORDS OF CERTAIN CRIMINAL HISTORY INFORMATION [DEFERRED
ADJUDICATIONS]. (a) Information is excepted from the requirements of
Section 552.021 if an order of nondisclosure with respect to the
information has been issued under Section 411.081(d) or (d-1).
(b) A person who is the
subject of information that is excepted from the requirements of Section
552.021 under this section may deny the occurrence of the criminal
proceeding [arrest and prosecution] to which the information
relates and the exception of the information under this section, unless the
information is being used against the person in a subsequent criminal
proceeding.
|
|
No
equivalent provision.
|
SECTION 6. Section
552.1425(a), Government Code, is amended to read as follows:
(a) A private entity that
compiles and disseminates for compensation criminal history record
information may not compile or disseminate information with respect to
which the entity has received notice that:
(1) an order of expunction
has been issued under Article 55.02, Code of Criminal Procedure; or
(2) an order of
nondisclosure has been issued under Section 411.081(d) or (d-1).
|
|
No
equivalent provision.
|
SECTION 7. Section
53.021(e), Occupations Code, is amended to read as follows:
(e) Subsection (c) does not
apply if the person is an applicant for or the holder of a license that
authorizes the person to provide:
(1) law enforcement or
public health, education, or safety services; or
(2) financial services in an
industry regulated by a person listed in Section 411.081(i)(18) [411.081(i)(19)],
Government Code.
|
|
No
equivalent provision.
|
SECTION 8. The change in law
made by Section 411.081(d-1), Government Code, as added by this Act,
applies to a person whose conviction for an offense under Section 43.02,
Penal Code, is set aside under Section 20(a), Article 42.12, Code of
Criminal Procedure, on or after the effective date of this Act, regardless
of when the person committed the offense for which the person was
convicted.
|
|
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as provided
by Section 39, Article III, Texas Constitution. If this Act does not
receive the vote necessary for immediate effect, this Act takes
effect September 1, 2015.
|
SECTION 9. This Act takes
effect September 1, 2015.
|
|