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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 or |
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compelling prostitution who are convicted 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 OR COMPELLING PROSTITUTION. (a) A court in |
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which a defendant has been convicted of an offense under Section |
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43.02, Penal Code, may, if the court retains jurisdiction in the |
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case, 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, 20A.03, or |
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43.05, Penal Code. The petitioner may submit with the petition a |
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document of a federal, state, local, or tribal governmental agency |
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indicating that the petitioner engaged in prostitution solely as a |
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victim of trafficking of persons or compelling prostitution, as |
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applicable. |
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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, 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 20A.02, |
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20A.03, or 43.05, Penal Code. A document of a governmental agency |
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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 or |
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compelling prostitution 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 or compelling prostitution and that |
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set-aside is in the best interest of 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 or |
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compelling prostitution, and if the petitioner is indigent, the |
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court reporter shall transcribe the hearing, including the finding, |
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at the county's expense. The entire record must be included with an |
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application for appeal filed 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 or |
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compelling prostitution filed under this article and a proceeding |
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conducted under this article do not constitute an application for a |
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writ of habeas corpus or a proceeding based on an application for a |
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writ of habeas corpus. A restriction on filing a subsequent |
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application for a writ of habeas corpus imposed by Article 11.07 |
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does not apply to a petition or 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 Article 42A.701 if the petitioner |
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is otherwise qualified to receive a dismissal under that article. |
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(l) For purposes of this article, the jurisdiction of a |
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court in which a defendant has been convicted of an offense under |
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Section 43.02, Penal Code, continues for a period of five years |
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beginning on the date the conviction is entered. |
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SECTION 2. Article 42A.105, Code of Criminal Procedure, is |
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amended by adding Subsection (g) to read as follows: |
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(g) 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 make an affirmative finding |
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of fact and file a statement of that affirmative finding with the |
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papers in the case if the judge determines that the defendant |
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engaged in the applicable conduct solely as a victim of an offense |
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under Section 20A.02, 20A.03, or 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-4) to read as follows: |
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(a-4) 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 or compelling prostitution. If |
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the attorney representing the state establishes a need for law |
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enforcement agencies, for the purpose of investigating trafficking |
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of persons or compelling prostitution offenses, to have access to |
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evidence contained in the arrest records or files of a person |
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entitled to an expunction under this subsection, at the request of |
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the attorney representing the state, the court may provide in its |
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expunction order that a law enforcement agency may retain those |
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records and files, provided that the person's personal information |
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has been redacted from those records and files. |
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SECTION 4. (a) Article 42.13, Code of Criminal Procedure, |
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as added by this Act, applies to a petition to set aside a |
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conviction that is filed on or after the effective date of this Act, |
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regardless of whether the offense that is the subject of the |
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petition occurred before, on, or after the effective date of this |
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Act. |
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(b) Article 42A.105(g), Code of Criminal Procedure, as |
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added by this Act, applies to a discharge and dismissal that occurs |
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on or after the effective date of this Act, regardless of whether |
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the offense for which the defendant was placed on deferred |
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adjudication community supervision occurred before, on, or after |
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the effective date of this Act. |
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(c) Article 55.01(a-4), 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 December 1, 2017. |