By: Thompson of Harris H.B. No. 3500
A BILL TO BE ENTITLED
AN ACT
relating to judicial proceedings on a petition to set aside a
conviction or an order of expunction of criminal history record
information for certain victims of trafficking of persons convicted
of prostitution.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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 at any
time 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),
20A.03 (Sex Trafficking), or Section 43.05, 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
20th 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), 20A.03 (Sex Trafficking), or Section 43.05,
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.
SECTION 2. 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), 20A.03 (Sex Trafficking), or Section 43.05, Penal Code.
SECTION 3. 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) that the person engaged in prostitution solely as
a victim of trafficking of persons. Upon a request by the State, the
court may grant an exception for law enforcement agencies to
maintain some records if the State can establish a need for certain
evidence containing information that would aid them in combating
human trafficking. If the State establishes such a need, those
records may be kept but all references to the applicant must still
be removed and this removal must be certified to the court.
SECTION 4. (a)
Articles 42.13, Code of Criminal Procedure,
as added by this Act, apply to a petition to set aside a conviction
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.
SECTION 5. 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.