By: Thompson of Harris, et al. H.B. No. 8
(Senate Sponsor - Van de Putte)
(In the Senate - Received from the House April 18, 2013;
April 24, 2013, read first time and referred to Committee on
Criminal Justice; May 17, 2013, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 7, Nays 0;
May 17, 2013, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 8 By: Schwertner
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution and punishment of offenses related to
trafficking of persons and to certain protections for victims of
trafficking of persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 7A, Code of Criminal
Procedure, is amended to read as follows:
CHAPTER 7A. PROTECTIVE ORDER FOR [CERTAIN] VICTIMS OF [TRAFFICKING
OR] SEXUAL ASSAULT OR ABUSE, STALKING, OR TRAFFICKING
SECTION 2. Article 7A.01(a), Code of Criminal Procedure, as
amended by Chapters 1 (S.B. 24) and 135 (S.B. 250), Acts of the 82nd
Legislature, Regular Session, 2011, is reenacted and amended to
read as follows:
(a) The following persons may file an application for a
protective order under this chapter without regard to the
relationship between the applicant and the alleged offender:
(1) a person who is the victim of an offense under
Section 21.02, 21.11, 22.011, 22.021, or 42.072, Penal Code;
(2) a person who is the victim of an offense under
Section 20A.02 [20A.02(a)(3), (4), (7), or (8)] or [Section] 43.05,
Penal Code;
(3) a parent or guardian acting on behalf of a person
younger than 17 [18] years of age who is the victim of an offense
listed in Subdivision (1);
(4) a parent or guardian acting on behalf of a person
younger than 18 years of age who is the victim of an offense listed
in Subdivision [or] (2); or
(5) [(4)] a prosecuting attorney acting on behalf of a
person described by Subdivision (1) or (2).
SECTION 3. Article 7A.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 7A.02. TEMPORARY EX PARTE ORDER. If the court finds
from the information contained in an application for a protective
order that there is a clear and present danger of sexual assault or
abuse, stalking, trafficking, or other harm to the applicant, the
court, without further notice to the alleged offender and without a
hearing, may enter a temporary ex parte order for the protection of
the applicant or any other member of the applicant's family or
household.
SECTION 4. Article 7A.03, Code of Criminal Procedure, as
amended by Chapters 135 (S.B. 250) and 238 (H.B. 649), Acts of the
82nd Legislature, Regular Session, 2011, is reenacted and amended
to read as follows:
Art. 7A.03. REQUIRED FINDINGS; ISSUANCE OF PROTECTIVE
ORDER. (a) At the close of a hearing on an application for a
protective order under this chapter, the court shall find whether
there are reasonable grounds to believe that the applicant is the
victim of sexual assault or abuse,[; or] stalking, or trafficking.
(b) If the court makes a finding described by Subsection (a)
[(a)(1) or (2)], the court shall issue a protective order that
includes a statement of the required findings.
SECTION 5. Article 7A.07(b), Code of Criminal Procedure, is
amended to read as follows:
(b) The following persons may file at any time an
application with the court to rescind the protective order:
(1) a victim of an offense listed in Article
7A.01(a)(1) [A victim] who is 17 years of age or older or a parent or
guardian acting on behalf of a victim who is younger than 17 years
of age; or
(2) a victim of an offense listed in Article
7A.01(a)(2) or a parent or guardian acting on behalf of a victim who
is younger than 18 years of age [may file at any time an application
with the court to rescind the protective order].
SECTION 6. Section 4(d), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(d) A defendant is not eligible for community supervision
under this section if the defendant:
(1) is sentenced to a term of imprisonment that
exceeds 10 years;
(2) is convicted of a state jail felony for which
suspension of the imposition of the sentence occurs automatically
under Section 15(a);
(3) does not file a sworn motion under Subsection (e)
of this section or for whom the jury does not enter in the verdict a
finding that the information contained in the motion is true;
(4) is convicted of an offense for which punishment is
increased under Section 481.134(c), (d), (e), or (f), Health and
Safety Code, if it is shown that the defendant has been previously
convicted of an offense for which punishment was increased under
any one of those subsections;
(5) is convicted of an offense listed in Section
3g(a)(1)(C), (E), or (H), if the victim of the offense was younger
than 14 years of age at the time the offense was committed;
(6) is convicted of an offense listed in Section
3g(a)(1)(D), if the victim of the offense was younger than 14 years
of age at the time the offense was committed and the actor committed
the offense with the intent to violate or abuse the victim sexually;
(7) is convicted of an offense listed in Section
3g(a)(1)(J), (L), or (M); or
(8) is adjudged guilty of an offense under Section
19.02, Penal Code.
SECTION 7. Chapter 48, Code of Criminal Procedure, is
amended by adding Article 48.06 to read as follows:
Art. 48.06. EDUCATIONAL MATERIALS CONCERNING PARDONS FOR
CERTAIN VICTIMS OF TRAFFICKING OF PERSONS. (a) The Board of
Pardons and Paroles shall develop educational materials
specifically for persons convicted of or placed on deferred
adjudication community supervision for an offense the person
committed solely as a victim of trafficking of persons under
Section 20A.02, Penal Code. The board shall include in the
educational materials a detailed description of the process by
which the person may submit a request to the board for a written
signed recommendation advising the governor to grant the person a
pardon.
(b) The Board of Pardons and Paroles shall post educational
materials described by Subsection (a) on the board's Internet
website.
SECTION 8. Article 56.32(a), Code of Criminal Procedure, is
amended by adding Subdivision (14) to read as follows:
(14) "Trafficking of persons" means any offense that
results in a person engaging in forced labor or services and that
may be prosecuted under Section 20A.02, 20A.03, 43.03, 43.04,
43.05, 43.25, 43.251, or 43.26, Penal Code.
SECTION 9. Article 56.42(d), Code of Criminal Procedure, is
amended to read as follows:
(d) A victim who is a victim of family violence, a victim of
trafficking of persons, or a victim of sexual assault who is
assaulted in the victim's place of residence may receive a
onetime-only assistance payment in an amount not to exceed:
(1) $2,000 to be used for relocation expenses,
including expenses for rental deposit, utility connections,
expenses relating to the moving of belongings, motor vehicle
mileage expenses, and for out-of-state moves, transportation,
lodging, and meals; and
(2) $1,800 to be used for housing rental expenses.
SECTION 10. Article 56.81, Code of Criminal Procedure, is
amended by adding Subdivision (7) to read as follows:
(7) "Trafficking of persons" means any offense that
may be prosecuted under Section 20A.02, 20A.03, 43.03, 43.04,
43.05, 43.25, 43.251, or 43.26, Penal Code, and that results in a
person:
(A) engaging in forced labor or services; or
(B) otherwise becoming a victim of the offense.
SECTION 11. Article 56.82(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The attorney general shall establish an address
confidentiality program, as provided by this subchapter, to assist
a victim of family violence, trafficking of persons, or an offense
under Section 22.011, 22.021, 25.02, or 42.072, Penal Code, in
maintaining a confidential address.
SECTION 12. Articles 56.83(a), (b), and (e), Code of
Criminal Procedure, are amended to read as follows:
(a) To be eligible to participate in the program, an
applicant must:
(1) meet with a victim's assistance counselor from a
state or local agency or other entity, whether for-profit or
nonprofit that is identified by the attorney general as an entity
that provides counseling and shelter services to victims of family
violence, trafficking of persons, or an offense under Section
22.011, 22.021, 25.02, or 42.072, Penal Code;
(2) file an application for participation with the
attorney general or a state or local agency or other entity
identified by the attorney general under Subdivision (1);
(3) designate the attorney general as agent to receive
service of process and mail on behalf of the applicant; and
(4) live at a residential address, or relocate to a
residential address, that is unknown to the person who committed or
is alleged to have committed the family violence, trafficking of
persons, or an offense under Section 22.011, 22.021, 25.02, or
42.072, Penal Code.
(b) An application under Subsection (a)(2) must contain:
(1) a signed, sworn statement by the applicant stating
that the applicant fears for the safety of the applicant, the
applicant's child, or another person in the applicant's household
because of a threat of immediate or future harm caused by the person
who committed or is alleged to have committed the family violence,
the trafficking of persons, or an offense under Section 22.011,
22.021, 25.02, or 42.072, Penal Code;
(2) the applicant's true residential address and, if
applicable, the applicant's business and school addresses; and
(3) a statement by the applicant of whether there is an
existing court order or a pending court case for child support or
child custody or visitation that involves the applicant and, if so,
the name and address of:
(A) the legal counsel of record; and
(B) each parent involved in the court order or
pending case.
(e) The attorney general by rule may establish additional
eligibility requirements for participation in the program that are
consistent with the purpose of the program as stated in Article
56.82(a). The attorney general may establish procedures for
requiring an applicant, in appropriate circumstances, to submit
with the application under Subsection (a)(2) independent
documentary evidence of family violence, trafficking of persons, or
an offense under Section 22.011, 22.021, 25.02, or 42.072, Penal
Code, in the form of:
(1) an active or recently issued protective order;
(2) an incident report or other record maintained by a
law enforcement agency or official;
(3) a statement of a physician or other health care
provider regarding the applicant's medical condition as a result of
the family violence, trafficking of persons, or offense; or
(4) a statement of a mental health professional, a
member of the clergy, an attorney or other legal advocate, a trained
staff member of a family violence center, or another professional
who has assisted the applicant in addressing the effects of the
family violence, trafficking of persons, or offense.
SECTION 13. Section 508.145(d)(1), Government Code, is
amended to read as follows:
(1) An inmate serving a sentence for an offense
described by Section 3g(a)(1)(A), (C), (D), (E), (F), (G), (H),
(I), (J), [or] (K), (L), or (M), Article 42.12, Code of Criminal
Procedure, [or for] an offense for which the judgment contains an
affirmative finding under Section 3g(a)(2) of that article, or
[for] an offense under Section 20A.03, Penal Code, is not eligible
for release on parole until the inmate's actual calendar time
served, without consideration of good conduct time, equals one-half
of the sentence or 30 calendar years, whichever is less, but in no
event is the inmate eligible for release on parole in less than two
calendar years.
SECTION 14. The heading to Section 38.112, Penal Code, is
amended to read as follows:
Sec. 38.112. VIOLATION OF PROTECTIVE ORDER ISSUED ON BASIS
OF SEXUAL ASSAULT OR ABUSE, STALKING, OR TRAFFICKING.
SECTION 15. Section 43.02, Penal Code, is amended by
amending Subsections (a), (b), and (c) and adding Subsection (e) to
read as follows:
(a) A person commits an offense if the person [he]
knowingly:
(1) offers to engage, agrees to engage, or engages in
sexual conduct for a fee; or
(2) solicits another in a public place to engage with
the person [him] in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1)
whether the actor is to receive or pay a fee. An offense is
established under Subsection (a)(2) whether the actor solicits a
person to hire the actor [him] or offers to hire the person
solicited.
(c) An offense under this section is a Class B misdemeanor,
except that the offense is:
(1) a Class A misdemeanor if the actor has previously
been convicted one or two times of an offense under this section;
(2) a state jail felony if the actor has previously
been convicted three or more times of an offense under this section;
or
(3) [a felony of the third degree if the person
solicited is 14 years of age or older and younger than 18 years of
age; or
[(4)] a felony of the second degree if the person
solicited is younger than 18 [14] years of age, regardless of
whether the actor knows the age of the person solicited at the time
the actor commits the offense.
(e) A conviction may be used for purposes of enhancement
under this section or enhancement under Subchapter D, Chapter 12,
but not under both this section and Subchapter D, Chapter 12. For
purposes of enhancement of penalties under this section or
Subchapter D, Chapter 12, a defendant is previously convicted of an
offense under this section if the defendant was adjudged guilty of
the offense or entered a plea of guilty or nolo contendere in return
for a grant of deferred adjudication, regardless of whether the
sentence for the offense was ever imposed or whether the sentence
was probated and the defendant was subsequently discharged from
community supervision.
SECTION 16. Section 43.03(b), Penal Code, is amended to
read as follows:
(b) An offense under this section is a Class A misdemeanor,
except that the offense is:
(1) a state jail felony if the actor has been
previously convicted of an offense under this section; or
(2) a felony of the second degree if the actor engages
in conduct described by Subsection (a)(1) or (2) involving a person
younger than 18 years of age engaging in prostitution, regardless
of whether the actor knows the age of the person at the time the
actor commits the offense.
SECTION 17. Section 43.04(b), Penal Code, is amended to
read as follows:
(b) An offense under this section is a felony of the third
degree, except that the offense is a felony of the first degree if
the prostitution enterprise uses as a prostitute one or more
persons younger than 18 years of age, regardless of whether the
actor knows the age of the person at the time the actor commits the
offense.
SECTION 18. Section 43.251(c), Penal Code, as amended by
Chapters 515 (H.B. 2014) and 938 (H.B. 290), Acts of the 82nd
Legislature, Regular Session, 2011, is reenacted and amended to
read as follows:
(c) An offense under this section is a felony of the second
degree, except that the offense is a felony of the first degree if
the child is younger than 14 years of age at the time the offense is
committed.
[(1) a state jail felony if it is shown on the trial of
the offense that the defendant has been previously convicted one
time of an offense under this section; and
[(2) a felony of the third degree if it is shown on the
trial of the offense that the defendant has been previously
convicted two or more times of an offense under this section.]
SECTION 19. Section 43.23(h), Penal Code, is amended to
read as follows:
(h) The punishment for an offense under Subsection (a) or
[is increased to the punishment for a felony of the third degree and
the punishment for an offense under Subsection] (c) is increased to
the punishment for a [state jail] felony of the second degree if it
is shown on the trial of the offense that obscene material that is
the subject of the offense visually depicts activities described by
Section 43.21(a)(1)(B) engaged in by:
(1) a child younger than 18 years of age at the time
the image of the child was made;
(2) an image that to a reasonable person would be
virtually indistinguishable from the image of a child younger than
18 years of age; or
(3) an image created, adapted, or modified to be the
image of an identifiable child.
SECTION 20. Section 71.02(a), Penal Code, as amended by
Chapters 68 (S.B. 934) and 223 (H.B. 260), Acts of the 82nd
Legislature, Regular Session, 2011, is reenacted and amended to
read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, continuous sexual abuse of young child or children,
solicitation of a minor, forgery, deadly conduct, assault
punishable as a Class A misdemeanor, burglary of a motor vehicle, or
unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or
distribution of a controlled substance or dangerous drug in
violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) any offense under Section 42.10;
(16) any offense under Section 46.06(a)(1) or 46.14;
[or]
(17) any offense under Section 20.05; or
(18) [(17)] any offense classified as a felony under
the Tax Code.
SECTION 21. Chapter 7B, Code of Criminal Procedure, is
repealed.
SECTION 22. (a) The changes in law made by this Act in
amending Chapter 7A, Code of Criminal Procedure, and repealing
Chapter 7B, Code of Criminal Procedure, apply only to a protective
order issued on or after the effective date of this Act. A
protective order issued before the effective date of this Act is
governed by the law in effect on the date the order is issued, and
the former law is continued in effect for that purpose.
(b) The changes in law made by this Act apply only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is governed
by the law in effect on the date the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this subsection, an offense was committed before the effective date
of this Act if any element of the offense occurred before that date.
SECTION 23. The Board of Pardons and Paroles not later than
October 1, 2013, shall post on its Internet website the educational
materials described by Article 48.06(a), Code of Criminal
Procedure, as added by this Act.
SECTION 24. This Act takes effect September 1, 2013.
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