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A BILL TO BE ENTITLED
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AN ACT
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relating to judicial proceedings on a petition to set aside a |
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conviction or an order of expunction of criminal history record |
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information for certain victims of trafficking of persons convicted |
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of prostitution. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 42, Code of Criminal Procedure, is |
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amended by adding Article 42.13 to read as follows: |
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Art. 42.13. SETTING ASIDE CONVICTION FOR VICTIMS OF |
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TRAFFICKING OF PERSONS. (a) A court in which a defendant has been |
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convicted of an offense under Section 43.02, Penal Code, may at any |
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time hear a petition from the defendant to set aside the order of |
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conviction. The petition must allege specific facts that, if |
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proved, would establish that the petitioner engaged in prostitution |
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solely as a victim of an offense under Section 20A.02(a)(3) or (7), |
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20A.03 (Sex Trafficking), or Section 43.05, Penal Code. The |
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petitioner may submit with the petition a document of a federal, |
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state, local, or tribal governmental agency indicating that the |
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petitioner engaged in prostitution solely as a victim of |
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trafficking of persons. |
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(b) On the filing of the petition under Subsection (a), the |
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clerk of the court shall promptly serve a copy of the petition and |
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any supporting document on the appropriate office of the attorney |
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representing the state. Any response to the petition by the |
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attorney representing the state must be filed not later than the |
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20th business day after the date of service under this subsection. |
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(c) If in considering the petition, any supporting |
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document, and any response of the attorney representing the state |
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the court finds that there are reasonable grounds to believe the |
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facts alleged in the petition or if the petitioner submits a |
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document of a governmental agency described by Subsection (a), the |
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court shall order a hearing on the petition. The court shall dismiss |
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the petition and shall promptly notify the petitioner of the |
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court's decision if the court finds that there are not any |
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reasonable grounds to believe the alleged facts exist or if the |
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petitioner has filed a previous petition under this article based |
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solely on the same evidence. The court may not dismiss the petition |
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if the petitioner submits a document of a governmental agency |
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described by Subsection (a). |
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(d) After the court orders a hearing under this article, |
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the court, as the court considers necessary to ensure a fair hearing |
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on the petition, may order any discovery from the attorney |
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representing the state or from the petitioner. An order of |
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discovery may include any order for probative evidence relevant to |
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proving or disproving the petitioner's claim of having engaged in |
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the conduct for which the person was convicted under Section 43.02, |
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Penal Code, solely as a victim of an offense under Section |
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20A.02(a)(3) or (7), 20A.03 (Sex Trafficking), or Section 43.05, |
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Penal Code. A document of a governmental agency described by |
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Subsection (a) creates a presumption that the petitioner's claim is |
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true. |
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(e) If after the court orders a hearing under this article |
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the court finds that, based on the sworn statements of the |
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petitioner or based on submitted evidence or affidavits, the |
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petitioner is not represented by an attorney and is indigent, the |
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court shall appoint an attorney to represent the petitioner at the |
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hearing and, if appropriate, before the court of appeals and the |
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court of criminal appeals. |
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(f) At the conclusion of the hearing, the court shall make a |
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finding as to whether the petitioner's claim of having engaged in |
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prostitution solely as a victim of trafficking of persons is true. |
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(g) The court may set aside the order of conviction for the |
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offense under Section 43.02, Penal Code, if the court finds that the |
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petitioner engaged in prostitution solely as a victim of |
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trafficking of persons and that set-aside is in the best interest of |
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justice. |
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(h) The court reporter shall record a hearing under this |
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article. If the court makes a finding that the petitioner engaged in |
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prostitution solely as a victim of trafficking of persons, and if |
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the petitioner is indigent, the court reporter shall transcribe the |
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hearing, including the finding, at the county's expense. The |
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entire record must be included with an application for appeal filed |
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as described by this article. |
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(i) The petitioner and the attorney representing the state |
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may appeal the findings of the court in the same manner as an appeal |
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of a conviction in a criminal case. |
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(j) A petition for a finding that the petitioner engaged in |
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prostitution solely as a victim of trafficking of persons filed |
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under this article and a proceeding conducted under this article do |
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not constitute an application for a writ of habeas corpus or a |
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proceeding based on an application for a writ of habeas corpus. A |
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restriction on filing a subsequent application for a writ of habeas |
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corpus imposed by Article 11.07 does not apply to a petition or |
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proceeding under this article. |
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(k) This article is not intended to preclude a petitioner |
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from receiving a reduction or termination of community supervision |
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and a set-aside of verdict under Section 20, Article 42.12, if the |
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petitioner is otherwise qualified to receive a dismissal under that |
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section. |
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SECTION 2. Section 5, Article 42.12, Code of Criminal |
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Procedure, is amended by adding Subsection (k) to read as follows: |
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(k) If a judge dismisses proceedings against a defendant |
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charged with an offense under Section 43.02, Penal Code, and |
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discharges the defendant, the judge may attach to the papers in the |
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case a statement that the defendant engaged in the applicable |
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conduct solely as a victim of an offense under Section 20A.02(a)(3) |
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or (7), 20A.03 (Sex Trafficking), or Section 43.05, Penal Code. |
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SECTION 3. Article 55.01, Code of Criminal Procedure, is |
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amended by adding Subsection (a-3) to read as follows: |
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(a-3) A person who has been placed under a custodial or |
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noncustodial arrest for commission of an offense under Section |
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43.02, Penal Code, is entitled to have all records and files |
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relating to the arrest expunged in the same manner provided for a |
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person described by Subsection (a), if a court determines under |
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Article 42.13(f) that the person engaged in prostitution solely as |
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a victim of trafficking of persons. Upon a request by the State, the |
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court may grant an exception for law enforcement agencies to |
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maintain some records if the State can establish a need for certain |
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evidence containing information that would aid them in combating |
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human trafficking. If the State establishes such a need, those |
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records may be kept but all references to the applicant must still |
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be removed and this removal must be certified to the court. |
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SECTION 4. (a) |
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Articles 42.13, Code of Criminal Procedure, |
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as added by this Act, apply to a petition to set aside a conviction |
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filed on or after the effective date of this Act, regardless of |
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whether the offense that is the subject of the petition occurred |
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before, on, or after the effective date of this Act. |
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(b) Section 5(k), Article 42.12, Code of Criminal |
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Procedure, as added by this Act, applies to a discharge and |
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dismissal that occurs on or after the effective date of this Act, |
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regardless of whether the offense for which the defendant was |
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placed on deferred adjudication community supervision occurred |
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before, on, or after the effective date of this Act. |
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(c) Article 55.01(a-3), Code of Criminal Procedure, as |
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added by this Act, applies to a petition for expunction filed on or |
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after the effective date of this Act, regardless of whether the |
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offense that is the subject of the petition occurred before, on, or |
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after the effective date of this Act. |
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SECTION 5. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2015. |