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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 for a pardon or an |
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order of expunction of criminal history record information for |
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certain victims of trafficking of persons convicted of |
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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, if the |
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court retains jurisdiction in the case, hear a petition from the |
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defendant to set aside the order of conviction. The petition must |
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allege specific facts that, if proved, would establish that the |
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petitioner engaged in prostitution solely as a victim of an offense |
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under Section 20A.02(a)(3) or (7), Penal Code. The petitioner may |
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submit with the petition a document of a federal, state, local, or |
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tribal governmental agency indicating that the petitioner engaged |
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in prostitution solely as a victim of 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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15th 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, the |
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court, as the court considers necessary to ensure a fair hearing on |
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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), Penal Code. A document of a governmental |
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agency described by Subsection (a) creates a presumption that the |
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petitioner's claim is 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 entire |
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record must be included with an application for appeal filed as |
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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. Chapter 48, Code of Criminal Procedure, is |
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amended by adding Article 48.07 to read as follows: |
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Art. 48.07. PETITION FOR PARDON FOR CERTAIN |
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TRAFFICKING-VICTIM OFFENDERS; JUDICIAL PROCEEDINGS. (a) In this |
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article, a person is considered to have been convicted in a case if: |
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(1) a judgment, a sentence, or both a judgment and a |
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sentence are imposed on the person; |
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(2) the person receives community supervision, |
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deferred adjudication, or deferred disposition; or |
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(3) the court defers final disposition of the case or |
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imposition of the judgment and sentence. |
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(b) This article applies only to a person described by |
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Subsection (c) who is unable to obtain relief under Section 20, |
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Article 42.12, or Article 42.13 because the convicting court no |
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longer retains jurisdiction over the case. |
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(c) A person convicted of an offense under Section 43.02, |
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Penal Code, may file in the court of conviction a petition alleging |
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specific facts that, if proved, would establish that the petitioner |
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engaged in prostitution solely as a victim of an offense under |
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Section 20A.02(a)(3) or (7), Penal Code. The petitioner may submit |
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with the petition a document of a federal, state, local, or tribal |
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governmental agency indicating that the petitioner engaged in |
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prostitution solely as a victim of trafficking of persons. |
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(d) On the filing of the petition under Subsection (c), 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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15th business day after the date of service under this subsection. |
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(e) 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 |
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dismiss the petition and shall promptly notify the petitioner of |
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the 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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(f) After the court orders a hearing under this article, the |
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court, as the court considers necessary to ensure a fair hearing on |
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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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prostitution solely as a victim of an offense under Section |
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20A.02(a)(3) or (7), Penal Code. A document of a governmental |
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agency described by Subsection (a) creates a presumption that the |
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petitioner's claim is true. |
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(g) 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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(h) 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. A |
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finding that the petitioner did engage in prostitution solely as a |
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victim of trafficking of persons does not authorize the court to set |
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aside a conviction of the offense if the court is not authorized to |
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set aside that sentence under other law. |
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(i) If the court finds that the petitioner engaged in |
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prostitution solely as a victim of trafficking of persons, the |
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petitioner may file an application for a pardon, but the |
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application may not be filed later than the 90th day after the date |
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the court makes the finding. |
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(j) 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 a pardon |
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filed as described by this article. |
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(k) 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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(l) 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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SECTION 3. 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), Penal Code. |
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SECTION 4. 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) or 48.07(h) that the person engaged in |
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prostitution solely as a victim of trafficking of persons. |
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SECTION 5. (a) Articles 42.13 and 48.07, Code of Criminal |
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Procedure, as added by this Act, apply to a petition to set aside a |
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conviction or for a pardon filed on or after the effective date of |
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this Act, regardless of whether the offense that is the subject of |
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the petition occurred before, on, or after the effective date of |
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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 6. 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. |