Texas 2015 - 84th Regular

Texas Senate Bill SB1088 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R9990 GCB-F
2	2	By: Taylor of Collin S.B. No. 1088
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to judicial proceedings on a petition for a pardon or an
8	8	order of expunction of criminal history record information for
9	9	certain victims of trafficking of persons convicted of
10	10	prostitution.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 42, Code of Criminal Procedure, is
13	13	amended by adding Article 42.13 to read as follows:
14	14	Art. 42.13. SETTING ASIDE CONVICTION FOR VICTIMS OF
15	15	TRAFFICKING OF PERSONS. (a) A court in which a defendant has been
16	16	convicted of an offense under Section 43.02, Penal Code, may, if the
17	17	court retains jurisdiction in the case, hear a petition from the
18	18	defendant to set aside the order of conviction. The petition must
19	19	allege specific facts that, if proved, would establish that the
20	20	petitioner engaged in prostitution solely as a victim of an offense
21	21	under Section 20A.02(a)(3) or (7), Penal Code. The petitioner may
22	22	submit with the petition a document of a federal, state, local, or
23	23	tribal governmental agency indicating that the petitioner engaged
24	24	in prostitution solely as a victim of trafficking of persons.
25	25	(b) On the filing of the petition under Subsection (a), the
26	26	clerk of the court shall promptly serve a copy of the petition and
27	27	any supporting document on the appropriate office of the attorney
28	28	representing the state. Any response to the petition by the
29	29	attorney representing the state must be filed not later than the
30	30	15th business day after the date of service under this subsection.
31	31	(c) If in considering the petition, any supporting
32	32	document, and any response of the attorney representing the state
33	33	the court finds that there are reasonable grounds to believe the
34	34	facts alleged in the petition or if the petitioner submits a
35	35	document of a governmental agency described by Subsection (a), the
36	36	court shall order a hearing on the petition. The court shall dismiss
37	37	the petition and shall promptly notify the petitioner of the
38	38	court's decision if the court finds that there are not any
39	39	reasonable grounds to believe the alleged facts exist or if the
40	40	petitioner has filed a previous petition under this article based
41	41	solely on the same evidence. The court may not dismiss the petition
42	42	if the petitioner submits a document of a governmental agency
43	43	described by Subsection (a).
44	44	(d) After the court orders a hearing under this article, the
45	45	court, as the court considers necessary to ensure a fair hearing on
46	46	the petition, may order any discovery from the attorney
47	47	representing the state or from the petitioner. An order of
48	48	discovery may include any order for probative evidence relevant to
49	49	proving or disproving the petitioner's claim of having engaged in
50	50	the conduct for which the person was convicted under Section 43.02,
51	51	Penal Code, solely as a victim of an offense under Section
52	52	20A.02(a)(3) or (7), Penal Code. A document of a governmental
53	53	agency described by Subsection (a) creates a presumption that the
54	54	petitioner's claim is true.
55	55	(e) If after the court orders a hearing under this article
56	56	the court finds that, based on the sworn statements of the
57	57	petitioner or based on submitted evidence or affidavits, the
58	58	petitioner is not represented by an attorney and is indigent, the
59	59	court shall appoint an attorney to represent the petitioner at the
60	60	hearing and, if appropriate, before the court of appeals and the
61	61	court of criminal appeals.
62	62	(f) At the conclusion of the hearing, the court shall make a
63	63	finding as to whether the petitioner's claim of having engaged in
64	64	prostitution solely as a victim of trafficking of persons is true.
65	65	(g) The court may set aside the order of conviction for the
66	66	offense under Section 43.02, Penal Code, if the court finds that the
67	67	petitioner engaged in prostitution solely as a victim of
68	68	trafficking of persons and that set-aside is in the best interest of
69	69	justice.
70	70	(h) The court reporter shall record a hearing under this
71	71	article. If the court makes a finding that the petitioner engaged in
72	72	prostitution solely as a victim of trafficking of persons, and if
73	73	the petitioner is indigent, the court reporter shall transcribe the
74	74	hearing, including the finding, at the county's expense. The entire
75	75	record must be included with an application for appeal filed as
76	76	described by this article.
77	77	(i) The petitioner and the attorney representing the state
78	78	may appeal the findings of the court in the same manner as an appeal
79	79	of a conviction in a criminal case.
80	80	(j) A petition for a finding that the petitioner engaged in
81	81	prostitution solely as a victim of trafficking of persons filed
82	82	under this article and a proceeding conducted under this article do
83	83	not constitute an application for a writ of habeas corpus or a
84	84	proceeding based on an application for a writ of habeas corpus. A
85	85	restriction on filing a subsequent application for a writ of habeas
86	86	corpus imposed by Article 11.07 does not apply to a petition or
87	87	proceeding under this article.
88	88	(k) This article is not intended to preclude a petitioner
89	89	from receiving a reduction or termination of community supervision
90	90	and a set-aside of verdict under Section 20, Article 42.12, if the
91	91	petitioner is otherwise qualified to receive a dismissal under that
92	92	section.
93	93	SECTION 2. Chapter 48, Code of Criminal Procedure, is
94	94	amended by adding Article 48.07 to read as follows:
95	95	Art. 48.07. PETITION FOR PARDON FOR CERTAIN
96	96	TRAFFICKING-VICTIM OFFENDERS; JUDICIAL PROCEEDINGS. (a) In this
97	97	article, a person is considered to have been convicted in a case if:
98	98	(1) a judgment, a sentence, or both a judgment and a
99	99	sentence are imposed on the person;
100	100	(2) the person receives community supervision,
101	101	deferred adjudication, or deferred disposition; or
102	102	(3) the court defers final disposition of the case or
103	103	imposition of the judgment and sentence.
104	104	(b) This article applies only to a person described by
105	105	Subsection (c) who is unable to obtain relief under Section 20,
106	106	Article 42.12, or Article 42.13 because the convicting court no
107	107	longer retains jurisdiction over the case.
108	108	(c) A person convicted of an offense under Section 43.02,
109	109	Penal Code, may file in the court of conviction a petition alleging
110	110	specific facts that, if proved, would establish that the petitioner
111	111	engaged in prostitution solely as a victim of an offense under
112	112	Section 20A.02(a)(3) or (7), Penal Code. The petitioner may submit
113	113	with the petition a document of a federal, state, local, or tribal
114	114	governmental agency indicating that the petitioner engaged in
115	115	prostitution solely as a victim of trafficking of persons.
116	116	(d) On the filing of the petition under Subsection (c), the
117	117	clerk of the court shall promptly serve a copy of the petition and
118	118	any supporting document on the appropriate office of the attorney
119	119	representing the state. Any response to the petition by the
120	120	attorney representing the state must be filed not later than the
121	121	15th business day after the date of service under this subsection.
122	122	(e) If in considering the petition, any supporting
123	123	document, and any response of the attorney representing the state
124	124	the court finds that there are reasonable grounds to believe the
125	125	facts alleged in the petition or if the petitioner submits a
126	126	document of a governmental agency described by Subsection (a), the
127	127	court shall order a hearing on the petition. The court shall
128	128	dismiss the petition and shall promptly notify the petitioner of
129	129	the court's decision if the court finds that there are not any
130	130	reasonable grounds to believe the alleged facts exist or if the
131	131	petitioner has filed a previous petition under this article based
132	132	solely on the same evidence. The court may not dismiss the petition
133	133	if the petitioner submits a document of a governmental agency
134	134	described by Subsection (a).
135	135	(f) After the court orders a hearing under this article, the
136	136	court, as the court considers necessary to ensure a fair hearing on
137	137	the petition, may order any discovery from the attorney
138	138	representing the state or from the petitioner. An order of
139	139	discovery may include any order for probative evidence relevant to
140	140	proving or disproving the petitioner's claim of having engaged in
141	141	prostitution solely as a victim of an offense under Section
142	142	20A.02(a)(3) or (7), Penal Code. A document of a governmental
143	143	agency described by Subsection (a) creates a presumption that the
144	144	petitioner's claim is true.
145	145	(g) If after the court orders a hearing under this article
146	146	the court finds that, based on the sworn statements of the
147	147	petitioner or based on submitted evidence or affidavits, the
148	148	petitioner is not represented by an attorney and is indigent, the
149	149	court shall appoint an attorney to represent the petitioner at the
150	150	hearing and, if appropriate, before the court of appeals and the
151	151	court of criminal appeals.
152	152	(h) At the conclusion of the hearing, the court shall make a
153	153	finding as to whether the petitioner's claim of having engaged in
154	154	prostitution solely as a victim of trafficking of persons is true. A
155	155	finding that the petitioner did engage in prostitution solely as a
156	156	victim of trafficking of persons does not authorize the court to set
157	157	aside a conviction of the offense if the court is not authorized to
158	158	set aside that sentence under other law.
159	159	(i) If the court finds that the petitioner engaged in
160	160	prostitution solely as a victim of trafficking of persons, the
161	161	petitioner may file an application for a pardon, but the
162	162	application may not be filed later than the 90th day after the date
163	163	the court makes the finding.
164	164	(j) The court reporter shall record a hearing under this
165	165	article. If the court makes a finding that the petitioner engaged in
166	166	prostitution solely as a victim of trafficking of persons, and if
167	167	the petitioner is indigent, the court reporter shall transcribe the
168	168	hearing, including the finding, at the county's expense. The
169	169	entire record must be included with an application for a pardon
170	170	filed as described by this article.
171	171	(k) The petitioner and the attorney representing the state
172	172	may appeal the findings of the court in the same manner as an appeal
173	173	of a conviction in a criminal case.
174	174	(l) A petition for a finding that the petitioner engaged in
175	175	prostitution solely as a victim of trafficking of persons filed
176	176	under this article and a proceeding conducted under this article do
177	177	not constitute an application for a writ of habeas corpus or a
178	178	proceeding based on an application for a writ of habeas corpus. A
179	179	restriction on filing a subsequent application for a writ of habeas
180	180	corpus imposed by Article 11.07 does not apply to a petition or
181	181	proceeding under this article.
182	182	SECTION 3. Section 5, Article 42.12, Code of Criminal
183	183	Procedure, is amended by adding Subsection (k) to read as follows:
184	184	(k) If a judge dismisses proceedings against a defendant
185	185	charged with an offense under Section 43.02, Penal Code, and
186	186	discharges the defendant, the judge may attach to the papers in the
187	187	case a statement that the defendant engaged in the applicable
188	188	conduct solely as a victim of an offense under Section 20A.02(a)(3)
189	189	or (7), Penal Code.
190	190	SECTION 4. Article 55.01, Code of Criminal Procedure, is
191	191	amended by adding Subsection (a-3) to read as follows:
192	192	(a-3) A person who has been placed under a custodial or
193	193	noncustodial arrest for commission of an offense under Section
194	194	43.02, Penal Code, is entitled to have all records and files
195	195	relating to the arrest expunged in the same manner provided for a
196	196	person described by Subsection (a), if a court determines under
197	197	Article 42.13(f) or 48.07(h) that the person engaged in
198	198	prostitution solely as a victim of trafficking of persons.
199	199	SECTION 5. (a) Articles 42.13 and 48.07, Code of Criminal
200	200	Procedure, as added by this Act, apply to a petition to set aside a
201	201	conviction or for a pardon filed on or after the effective date of
202	202	this Act, regardless of whether the offense that is the subject of
203	203	the petition occurred before, on, or after the effective date of
204	204	this Act.
205	205	(b) Section 5(k), Article 42.12, Code of Criminal
206	206	Procedure, as added by this Act, applies to a discharge and
207	207	dismissal that occurs on or after the effective date of this Act,
208	208	regardless of whether the offense for which the defendant was
209	209	placed on deferred adjudication community supervision occurred
210	210	before, on, or after the effective date of this Act.
211	211	(c) Article 55.01(a-3), Code of Criminal Procedure, as
212	212	added by this Act, applies to a petition for expunction filed on or
213	213	after the effective date of this Act, regardless of whether the
214	214	offense that is the subject of the petition occurred before, on, or
215	215	after the effective date of this Act.
216	216	SECTION 6. This Act takes effect immediately if it receives
217	217	a vote of two-thirds of all the members elected to each house, as
218	218	provided by Section 39, Article III, Texas Constitution. If this
219	219	Act does not receive the vote necessary for immediate effect, this
220	220	Act takes effect September 1, 2015.