Texas 2015 - 84th Regular

Texas House Bill HB3500 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	84R24925 LEH-F
2	2	By: Thompson of Harris H.B. No. 3500
3	3	Substitute the following for H.B. No. 3500:
4	4	By: Herrero C.S.H.B. No. 3500
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to judicial proceedings on a petition to set aside a
10	10	conviction or an order of expunction of criminal history record
11	11	information for certain victims of trafficking of persons or
12	12	compelling prostitution who are convicted of prostitution.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Chapter 42, Code of Criminal Procedure, is
15	15	amended by adding Article 42.13 to read as follows:
16	16	Art. 42.13. SETTING ASIDE CONVICTION FOR VICTIMS OF
17	17	TRAFFICKING OF PERSONS OR COMPELLING PROSTITUTION. (a) A court in
18	18	which a defendant has been convicted of an offense under Section
19	19	43.02, Penal Code, may, if the court retains jurisdiction in the
20	20	case, hear a petition from the defendant to set aside the order of
21	21	conviction. The petition must allege specific facts that, if
22	22	proved, would establish that the petitioner engaged in prostitution
23	23	solely as a victim of an offense under Section 20A.02, 20A.03, or
24	24	43.05, Penal Code. The petitioner may submit with the petition a
25	25	document of a federal, state, local, or tribal governmental agency
26	26	indicating that the petitioner engaged in prostitution solely as a
27	27	victim of trafficking of persons or compelling prostitution, as
28	28	applicable.
29	29	(b) On the filing of the petition under Subsection (a), the
30	30	clerk of the court shall promptly serve a copy of the petition and
31	31	any supporting document on the appropriate office of the attorney
32	32	representing the state. Any response to the petition by the
33	33	attorney representing the state must be filed not later than the
34	34	20th business day after the date of service under this subsection.
35	35	(c) If in considering the petition, any supporting
36	36	document, and any response of the attorney representing the state
37	37	the court finds that there are reasonable grounds to believe the
38	38	facts alleged in the petition or if the petitioner submits a
39	39	document of a governmental agency described by Subsection (a), the
40	40	court shall order a hearing on the petition. The court shall dismiss
41	41	the petition and shall promptly notify the petitioner of the
42	42	court's decision if the court finds that there are not any
43	43	reasonable grounds to believe the alleged facts exist or if the
44	44	petitioner has filed a previous petition under this article based
45	45	solely on the same evidence. The court may not dismiss the petition
46	46	if the petitioner submits a document of a governmental agency
47	47	described by Subsection (a).
48	48	(d) After the court orders a hearing under this article, the
49	49	court, as the court considers necessary to ensure a fair hearing on
50	50	the petition, may order any discovery from the attorney
51	51	representing the state or from the petitioner. An order of
52	52	discovery may include any order for probative evidence relevant to
53	53	proving or disproving the petitioner's claim of having engaged in
54	54	the conduct for which the person was convicted under Section 43.02,
55	55	Penal Code, solely as a victim of an offense under Section 20A.02,
56	56	20A.03, or 43.05, Penal Code. A document of a governmental agency
57	57	described by Subsection (a) creates a presumption that the
58	58	petitioner's claim is true.
59	59	(e) If after the court orders a hearing under this article
60	60	the court finds that, based on the sworn statements of the
61	61	petitioner or based on submitted evidence or affidavits, the
62	62	petitioner is not represented by an attorney and is indigent, the
63	63	court shall appoint an attorney to represent the petitioner at the
64	64	hearing and, if appropriate, before the court of appeals and the
65	65	court of criminal appeals.
66	66	(f) At the conclusion of the hearing, the court shall make a
67	67	finding as to whether the petitioner's claim of having engaged in
68	68	prostitution solely as a victim of trafficking of persons or
69	69	compelling prostitution is true.
70	70	(g) The court may set aside the order of conviction for the
71	71	offense under Section 43.02, Penal Code, if the court finds that the
72	72	petitioner engaged in prostitution solely as a victim of
73	73	trafficking of persons or compelling prostitution and that
74	74	set-aside is in the best interest of justice.
75	75	(h) The court reporter shall record a hearing under this
76	76	article. If the court makes a finding that the petitioner engaged in
77	77	prostitution solely as a victim of trafficking of persons or
78	78	compelling prostitution, and if the petitioner is indigent, the
79	79	court reporter shall transcribe the hearing, including the finding,
80	80	at the county's expense. The entire record must be included with an
81	81	application for appeal filed as described by this article.
82	82	(i) The petitioner and the attorney representing the state
83	83	may appeal the findings of the court in the same manner as an appeal
84	84	of a conviction in a criminal case.
85	85	(j) A petition for a finding that the petitioner engaged in
86	86	prostitution solely as a victim of trafficking of persons or
87	87	compelling prostitution filed under this article and a proceeding
88	88	conducted under this article do not constitute an application for a
89	89	writ of habeas corpus or a proceeding based on an application for a
90	90	writ of habeas corpus. A restriction on filing a subsequent
91	91	application for a writ of habeas corpus imposed by Article 11.07
92	92	does not apply to a petition or proceeding under this article.
93	93	(k) This article is not intended to preclude a petitioner
94	94	from receiving a reduction or termination of community supervision
95	95	and a set-aside of verdict under Section 20, Article 42.12, if the
96	96	petitioner is otherwise qualified to receive a dismissal under that
97	97	section.
98	98	(l) For purposes of this article, the jurisdiction of a
99	99	court in which a defendant has been convicted of an offense under
100	100	Section 43.02, Penal Code, continues for a period of five years
101	101	beginning on the date the conviction is entered.
102	102	SECTION 2. Section 5, Article 42.12, Code of Criminal
103	103	Procedure, is amended by adding Subsection (k) to read as follows:
104	104	(k) If a judge dismisses proceedings against a defendant
105	105	charged with an offense under Section 43.02, Penal Code, and
106	106	discharges the defendant, the judge may attach to the papers in the
107	107	case a statement that the defendant engaged in the applicable
108	108	conduct solely as a victim of an offense under Section 20A.02,
109	109	20A.03, or 43.05, Penal Code.
110	110	SECTION 3. Article 55.01, Code of Criminal Procedure, is
111	111	amended by adding Subsection (a-3) to read as follows:
112	112	(a-3) A person who has been placed under a custodial or
113	113	noncustodial arrest for commission of an offense under Section
114	114	43.02, Penal Code, is entitled to have all records and files
115	115	relating to the arrest expunged in the same manner provided for a
116	116	person described by Subsection (a), if a court determines under
117	117	Article 42.13(f) that the person engaged in prostitution solely as
118	118	a victim of trafficking of persons or compelling prostitution. If
119	119	the attorney representing the state establishes a need for law
120	120	enforcement agencies, for the purpose of investigating trafficking
121	121	of persons or compelling prostitution offenses, to have access to
122	122	evidence contained in the arrest records or files of a person
123	123	entitled to an expunction under this subsection, at the request of
124	124	the attorney representing the state, the court may provide in its
125	125	expunction order that a law enforcement agency may retain those
126	126	records and files, provided that the person's personal information
127	127	has been redacted from those records and files.
128	128	SECTION 4. (a) Article 42.13, Code of Criminal Procedure,
129	129	as added by this Act, applies to a petition to set aside a
130	130	conviction that is filed on or after the effective date of this Act,
131	131	regardless of whether the offense that is the subject of the
132	132	petition occurred before, on, or after the effective date of this
133	133	Act.
134	134	(b) Section 5(k), Article 42.12, Code of Criminal
135	135	Procedure, as added by this Act, applies to a discharge and
136	136	dismissal that occurs on or after the effective date of this Act,
137	137	regardless of whether the offense for which the defendant was
138	138	placed on deferred adjudication community supervision occurred
139	139	before, on, or after the effective date of this Act.
140	140	(c) Article 55.01(a-3), Code of Criminal Procedure, as
141	141	added by this Act, applies to a petition for expunction filed on or
142	142	after the effective date of this Act, regardless of whether the
143	143	offense that is the subject of the petition occurred before, on, or
144	144	after the effective date of this Act.
145	145	SECTION 5. This Act takes effect immediately if it receives
146	146	a vote of two-thirds of all the members elected to each house, as
147	147	provided by Section 39, Article III, Texas Constitution. If this
148	148	Act does not receive the vote necessary for immediate effect, this
149	149	Act takes effect September 1, 2015.