Texas 2017 - 85th Regular

Texas Senate Bill SB1165 Compare Versions

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

Old	New	Differences
1	1	85R5910 LHC-D
2	2	By: Garcia S.B. No. 1165
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to judicial proceedings on a petition to set aside a
8	8	conviction or an order of expunction of arrest records and files for
9	9	certain victims of trafficking of persons or compelling
10	10	prostitution who are convicted of certain offenses.
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 OR COMPELLING PROSTITUTION. (a) A court in
16	16	which a defendant has been convicted of an offense that is not a
17	17	crime of violence, as defined by Article 59.01, may, if the court
18	18	retains jurisdiction in the case, hear a petition from the
19	19	defendant to set aside the order of conviction. The petition must
20	20	allege specific facts that, if proved, would establish that the
21	21	petitioner committed the offense solely as a victim of an offense
22	22	under Section 20A.02, 20A.03, or 43.05, Penal Code. The petitioner
23	23	may submit with the petition a document of a federal, state, local,
24	24	or tribal governmental agency indicating that the petitioner
25	25	committed the offense solely as a victim of trafficking of persons
26	26	or compelling prostitution, as applicable.
27	27	(b) On the filing of the petition under Subsection (a), the
28	28	clerk of the court shall promptly serve a copy of the petition and
29	29	any supporting document on the appropriate office of the attorney
30	30	representing the state. Any response to the petition by the
31	31	attorney representing the state must be filed not later than the
32	32	20th business day after the date of service under this subsection.
33	33	(c) If in considering the petition, any supporting
34	34	document, and any response of the attorney representing the state
35	35	the court finds that there are reasonable grounds to believe the
36	36	facts alleged in the petition or if the petitioner submits a
37	37	document of a governmental agency described by Subsection (a), the
38	38	court shall order a hearing on the petition. The court shall dismiss
39	39	the petition and shall promptly notify the petitioner of the
40	40	court's decision if the court finds that there are not any
41	41	reasonable grounds to believe the alleged facts exist or if the
42	42	petitioner has filed a previous petition under this article based
43	43	solely on the same evidence. The court may not dismiss the petition
44	44	if the petitioner submits a document of a governmental agency
45	45	described by Subsection (a).
46	46	(d) After the court orders a hearing under this article, the
47	47	court, as the court considers necessary to ensure a fair hearing on
48	48	the petition, may order any discovery from the attorney
49	49	representing the state or from the petitioner. An order of
50	50	discovery may include any order for probative evidence relevant to
51	51	proving or disproving the petitioner's claim of having committed
52	52	the offense solely as a victim of an offense under Section 20A.02,
53	53	20A.03, or 43.05, Penal Code. A document of a governmental agency
54	54	described by Subsection (a) creates a presumption that the
55	55	petitioner's claim is true.
56	56	(e) If after the court orders a hearing under this article
57	57	the court finds that, based on the sworn statements of the
58	58	petitioner or based on submitted evidence or affidavits, the
59	59	petitioner is not represented by an attorney and is indigent, the
60	60	court shall appoint an attorney to represent the petitioner at the
61	61	hearing and, if appropriate, before the court of appeals and the
62	62	court of criminal appeals.
63	63	(f) At the conclusion of the hearing, the court shall make a
64	64	finding as to whether the petitioner's claim of having committed
65	65	the offense solely as a victim of trafficking of persons or
66	66	compelling prostitution is true.
67	67	(g) The court may set aside the order of conviction for the
68	68	offense if the court finds that the petitioner committed the
69	69	offense solely as a victim of trafficking of persons or compelling
70	70	prostitution and that set-aside is in the best interest of justice.
71	71	(h) The court reporter shall record a hearing under this
72	72	article. If the court makes a finding that the petitioner committed
73	73	the offense solely as a victim of trafficking of persons or
74	74	compelling prostitution, and if the petitioner is indigent, the
75	75	court reporter shall transcribe the hearing, including the finding,
76	76	at the county's expense. The entire record must be included with an
77	77	application for appeal filed as described by this article.
78	78	(i) The petitioner and the attorney representing the state
79	79	may appeal the findings of the court in the same manner as an appeal
80	80	of a conviction in a criminal case.
81	81	(j) A petition filed under this article and a proceeding
82	82	conducted under this article do not constitute an application for a
83	83	writ of habeas corpus or a proceeding based on an application for a
84	84	writ of habeas corpus. A restriction on filing a subsequent
85	85	application for a writ of habeas corpus imposed by Article 11.07
86	86	does not apply to a petition or proceeding under this article.
87	87	(k) This article is not intended to preclude a petitioner
88	88	from receiving a reduction or termination of community supervision
89	89	and a set-aside of verdict under Article 42A.701 if the petitioner
90	90	is otherwise qualified to receive a dismissal under that article.
91	91	(l) For purposes of this article, the jurisdiction of a
92	92	court in which a defendant has been convicted of an offense that is
93	93	not a crime of violence, as defined by Article 59.01, continues for
94	94	a period of five years beginning on the date the conviction is
95	95	entered.
96	96	SECTION 2. Article 42A.105, Code of Criminal Procedure, is
97	97	amended by adding Subsection (g) to read as follows:
98	98	(g) If a judge dismisses proceedings against a defendant
99	99	charged with an offense that is not a crime of violence, as defined
100	100	by Article 59.01, and discharges the defendant, the judge may make
101	101	an affirmative finding of fact and file a statement of that
102	102	affirmative finding with the papers in the case if the judge
103	103	determines that the defendant engaged in the applicable conduct
104	104	solely as a victim of an offense under Section 20A.02, 20A.03, or
105	105	43.05, Penal Code.
106	106	SECTION 3. Article 55.01, Code of Criminal Procedure, is
107	107	amended by adding Subsection (a-3) to read as follows:
108	108	(a-3) A person who has been placed under a custodial or
109	109	noncustodial arrest for commission of an offense that is not a crime
110	110	of violence, as defined by Article 59.01, is entitled to have all
111	111	records and files relating to the arrest expunged in the same manner
112	112	provided for a person described by Subsection (a), if a court
113	113	determines under Article 42.13(f) that the person committed the
114	114	offense solely as a victim of trafficking of persons or compelling
115	115	prostitution. If the attorney representing the state establishes a
116	116	need for law enforcement agencies, for the purpose of investigating
117	117	trafficking of persons or compelling prostitution offenses, to have
118	118	access to evidence contained in the arrest records or files of a
119	119	person entitled to an expunction under this subsection, at the
120	120	request of the attorney representing the state, the court may
121	121	provide in its expunction order that a law enforcement agency may
122	122	retain those records and files, provided that the person's personal
123	123	information has been redacted from those records and files.
124	124	SECTION 4. (a) Article 42.13, Code of Criminal Procedure,
125	125	as added by this Act, applies to a petition to set aside a
126	126	conviction that is filed on or after the effective date of this Act,
127	127	regardless of whether the offense that is the subject of the
128	128	petition occurred before, on, or after the effective date of this
129	129	Act.
130	130	(b) Article 42A.105(g), Code of Criminal Procedure, as
131	131	added by this Act, applies to a discharge and dismissal that occurs
132	132	on or after the effective date of this Act, regardless of whether
133	133	the offense for which the defendant was placed on deferred
134	134	adjudication community supervision occurred before, on, or after
135	135	the effective date of this Act.
136	136	(c) Article 55.01(a-3), Code of Criminal Procedure, as
137	137	added by this Act, applies to a petition for expunction filed on or
138	138	after the effective date of this Act, regardless of whether the
139	139	offense that is the subject of the petition occurred before, on, or
140	140	after the effective date of this Act.
141	141	SECTION 5. This Act takes effect September 1, 2017.