85R5910 LHC-D
By: Garcia S.B. No. 1165
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 arrest records and files for
certain victims of trafficking of persons or compelling
prostitution who are convicted of certain offenses.
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 OR COMPELLING PROSTITUTION. (a) A court in
which a defendant has been convicted of an offense that is not a
crime of violence, as defined by Article 59.01, may, if the court
retains jurisdiction in the case, 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 committed the offense solely as a victim of an offense
under Section 20A.02, 20A.03, or 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
committed the offense solely as a victim of trafficking of persons
or compelling prostitution, as applicable.
(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 committed
the offense solely as a victim of an offense under Section 20A.02,
20A.03, or 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 committed
the offense solely as a victim of trafficking of persons or
compelling prostitution is true.
(g) The court may set aside the order of conviction for the
offense if the court finds that the petitioner committed the
offense solely as a victim of trafficking of persons or compelling
prostitution 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 committed
the offense solely as a victim of trafficking of persons or
compelling prostitution, 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 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 Article 42A.701 if the petitioner
is otherwise qualified to receive a dismissal under that article.
(l) For purposes of this article, the jurisdiction of a
court in which a defendant has been convicted of an offense that is
not a crime of violence, as defined by Article 59.01, continues for
a period of five years beginning on the date the conviction is
entered.
SECTION 2. Article 42A.105, Code of Criminal Procedure, is
amended by adding Subsection (g) to read as follows:
(g) If a judge dismisses proceedings against a defendant
charged with an offense that is not a crime of violence, as defined
by Article 59.01, and discharges the defendant, the judge may make
an affirmative finding of fact and file a statement of that
affirmative finding with the papers in the case if the judge
determines that the defendant engaged in the applicable conduct
solely as a victim of an offense under Section 20A.02, 20A.03, or
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 that is not a crime
of violence, as defined by Article 59.01, 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 committed the
offense solely as a victim of trafficking of persons or compelling
prostitution. If the attorney representing the state establishes a
need for law enforcement agencies, for the purpose of investigating
trafficking of persons or compelling prostitution offenses, to have
access to evidence contained in the arrest records or files of a
person entitled to an expunction under this subsection, at the
request of the attorney representing the state, the court may
provide in its expunction order that a law enforcement agency may
retain those records and files, provided that the person's personal
information has been redacted from those records and files.
SECTION 4. (a) Article 42.13, Code of Criminal Procedure,
as added by this Act, applies to a petition to set aside a
conviction that is 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) Article 42A.105(g), 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 September 1, 2017.