86R7493 MAW-D
By: White H.B. No. 4104
A BILL TO BE ENTITLED
AN ACT
relating to the sentencing procedures and punishment for the
offense of prostitution and to programs for certain defendants
charged with or 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 42.021 to read as follows:
Art. 42.021. USE OF SCREENING TOOL FOR SENTENCING PURPOSES
IN CERTAIN PROSTITUTION CASES. In a case in which the judge will
assess punishment for a defendant convicted of an offense under
Section 43.02(a), Penal Code, the judge shall use the screening
tool developed under Section 72.033, Government Code, to determine
whether the defendant is a victim of human trafficking and to inform
the judge's sentencing decision.
SECTION 2. Article 42A.551, Code of Criminal Procedure, is
amended by adding Subsection (a-1) and amending Subsection (d) to
read as follows:
(a-1) Notwithstanding Subsection (b), on the defendant's
conviction of a state jail felony under Section 43.02(c)(2), Penal
Code, that is punished under Section 12.35(a), Penal Code, the
judge shall suspend the imposition of the sentence and place the
defendant on community supervision. This subsection does not apply
to a defendant who has previously been convicted of any other state
jail felony under Section 43.02(c)(2), Penal Code, that is punished
under Section 12.35, Penal Code.
(d) On conviction of a state jail felony punished under
Section 12.35(a), Penal Code, other than a state jail felony listed
in Subsection (a) or to which Subsection (a-1) applies, subject to
Subsection (e), the judge may:
(1) suspend the imposition of the sentence and place
the defendant on community supervision; or
(2) order the sentence to be executed:
(A) in whole; or
(B) in part, with a period of community
supervision to begin immediately on release of the defendant from
confinement.
SECTION 3. Article 42A.554, Code of Criminal Procedure, is
amended by adding Subsection (d) to read as follows:
(d) A judge who places a defendant on community supervision
under Article 42A.551(a-1) shall require, as a condition of
community supervision, that the defendant submit to a term of
confinement under Article 42A.555 and, while confined, participate
in a program operated under Section 507.035, Government Code.
SECTION 4. Article 55.01, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (a-4) to
read as follows:
(a) A person who has been placed under a custodial or
noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and files relating to
the arrest expunged if:
(1) the person is tried for the offense for which the
person was arrested and is:
(A) acquitted by the trial court, except as
provided by Subsection (c); or
(B) convicted and subsequently:
(i) pardoned for a reason other than that
described by Subparagraph (ii); or
(ii) pardoned or otherwise granted relief
on the basis of actual innocence with respect to that offense, if
the applicable pardon or court order clearly indicates on its face
that the pardon or order was granted or rendered on the basis of the
person's actual innocence; or
(2) the person has been released and the charge, if
any, has not resulted in a final conviction and is no longer pending
and there was no court-ordered community supervision under Chapter
42A for the offense, unless the offense is a Class C misdemeanor,
provided that:
(A) regardless of whether any statute of
limitations exists for the offense and whether any limitations
period for the offense has expired, an indictment or information
charging the person with the commission of a misdemeanor offense
based on the person's arrest or charging the person with the
commission of any felony offense arising out of the same
transaction for which the person was arrested:
(i) has not been presented against the
person at any time following the arrest, and:
(a) at least 180 days have elapsed
from the date of arrest if the arrest for which the expunction was
sought was for an offense punishable as a Class C misdemeanor and if
there was no felony charge arising out of the same transaction for
which the person was arrested;
(b) at least one year has elapsed from
the date of arrest if the arrest for which the expunction was sought
was for an offense punishable as a Class B or A misdemeanor and if
there was no felony charge arising out of the same transaction for
which the person was arrested;
(c) at least three years have elapsed
from the date of arrest if the arrest for which the expunction was
sought was for an offense punishable as a felony or if there was a
felony charge arising out of the same transaction for which the
person was arrested; or
(d) the attorney representing the
state certifies that the applicable arrest records and files are
not needed for use in any criminal investigation or prosecution,
including an investigation or prosecution of another person; or
(ii) if presented at any time following the
arrest, was dismissed or quashed, and the court finds that the
indictment or information was dismissed or quashed because:
(a) the person completed a veterans
treatment court program created under Chapter 124, Government Code,
or former law, subject to Subsection (a-3);
(b) the person completed a pretrial
intervention program authorized under Section 76.011, Government
Code, other than specialty [a veterans treatment] court programs
[program] created under Chapter 124 or 126, Government Code, or
former law;
(c) the presentment had been made
because of mistake, false information, or other similar reason
indicating absence of probable cause at the time of the dismissal to
believe the person committed the offense; [or]
(d) the indictment or information was
void; or
(e) the person completed a
commercially sexually exploited persons court program created
under Chapter 126, Government Code, or former law, subject to
Subsection (a-4); or
(B) prosecution of the person for the offense for
which the person was arrested is no longer possible because the
limitations period has expired.
(a-4) A person is entitled under Subsection
(a)(2)(A)(ii)(e) for an expunction of arrest records and files only
if:
(1) the person has not previously received an
expunction of arrest records and files under that sub-subparagraph;
and
(2) the person submits to the court an affidavit
attesting to that fact.
SECTION 5. Section 1a, Article 55.02, Code of Criminal
Procedure, is amended by adding Subsection (a-2) to read as
follows:
(a-2) A trial court dismissing a case following a person's
successful completion of a commercially sexually exploited persons
court program created under Chapter 126, Government Code, or former
law, if the trial court is a district court, or a district court in
the county in which the trial court is located may, with the consent
of the attorney representing the state, enter an order of
expunction for a person entitled to expunction under Article
55.01(a)(2)(A)(ii)(e) not later than the 30th day after the date
the court dismisses the case or receives the information regarding
that dismissal, as applicable. Notwithstanding any other law, a
court that enters an order for expunction under this subsection may
not charge any fee or assess any cost for the expunction.
SECTION 6. Section 126.001, Government Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) If a defendant who was convicted of or placed on
deferred adjudication community supervision for an offense
successfully completes a commercially sexually exploited persons
court program [, regardless of whether the defendant was convicted
of the offense for which the defendant entered the program or
whether the court deferred further proceedings without entering an
adjudication of guilt], after notice to the state and a hearing on
whether the defendant is otherwise entitled to the petition,
including whether the required time has elapsed, and whether
issuance of the order is in the best interest of justice, the court
shall enter an order of nondisclosure of criminal history record
information under Subchapter E-1, Chapter 411, as if the defendant
had received a discharge and dismissal under Article 42A.111, Code
of Criminal Procedure, with respect to all records and files
related to the defendant's arrest for the offense for which the
defendant entered the program.
(c) If a defendant who was arrested for or charged with, but
not convicted of or placed on deferred adjudication community
supervision for, an offense successfully completes a commercially
sexually exploited persons court program, after notice to the
attorney representing the state and a hearing in the commercially
sexually exploited persons court at which that court determines
that a dismissal is in the best interest of justice, the
commercially sexually exploited persons court shall provide to the
court in which the criminal case is pending information about the
dismissal and shall include all of the information required about
the defendant for a petition for expunction under Section 2(b),
Article 55.02, Code of Criminal Procedure. The court in which the
criminal case is pending shall dismiss the case against the
defendant and:
(1) if that trial court is a district court, the court
may, with the consent of the attorney representing the state, enter
an order of expunction on behalf of the defendant under Section
1a(a-2), Article 55.02, Code of Criminal Procedure; or
(2) if that trial court is not a district court, the
court may, with the consent of the attorney representing the state,
forward the appropriate dismissal and expunction information to
enable a district court with jurisdiction to enter an order of
expunction on behalf of the defendant under Section 1a(a-2),
Article 55.02, Code of Criminal Procedure.
SECTION 7. Subchapter C, Chapter 72, Government Code, is
amended by adding Section 72.033 to read as follows:
Sec. 72.033. HUMAN TRAFFICKING SCREENING TOOL. (a) The
office, in consultation with the office of the governor, the office
of the attorney general, the Department of Public Safety, the
Health and Human Services Commission, the Department of Family and
Protective Services, the Texas Juvenile Justice Department, the
Texas Department of Criminal Justice, nonprofit or community
organizations involved in criminal justice issues, and other
interested parties, shall develop a screening tool to be used to
determine if a defendant convicted of an offense under Section
43.02(a), Penal Code, is a victim of human trafficking. The tool
must be evidence-based and be designed to inform a judge's
sentencing decision regarding a defendant determined to be a victim
of human trafficking.
(b) The office shall make the tool available to judges on
the office's Internet website.
SECTION 8. Subchapter B, Chapter 507, Government Code, is
amended by adding Section 507.035 to read as follows:
Sec. 507.035. REHABILITATION PROGRAM FOR CERTAIN
PROSTITUTION OFFENDERS. (a) The department, in consultation with
the Health and Human Services Commission, shall establish and
administer a rehabilitation program for defendants placed on
community supervision and required to participate in the program
under Article 42A.554(d), Code of Criminal Procedure.
(b) The program must:
(1) be evidence-based and designed to efficiently
rehabilitate defendants;
(2) provide defendants with access to:
(A) life skills, job, and vocational training
programs;
(B) drug and alcohol rehabilitation programs;
(C) support group programs;
(D) counseling services; and
(E) other programs designed to facilitate the
transition of defendants into society and to reduce incidents of
recidivism; and
(3) house defendants participating in the program in a
compassionate, safe, and secure environment that lacks the typical
characteristics of a prison facility.
SECTION 9. (a) Not later than December 1, 2019, the Office
of Court Administration of the Texas Judicial System shall develop
and make available the screening tool as required by Section
72.033, Government Code, as added by this Act.
(b) Article 42.021, Code of Criminal Procedure, as added by
this Act, applies only to a defendant who is sentenced for an
offense on or after December 1, 2019, regardless of whether the
offense is committed before, on, or after that date.
SECTION 10. Not later than September 1, 2020, the Texas
Department of Criminal Justice shall establish the rehabilitation
program required by Section 507.035, Government Code, as added by
this Act.
SECTION 11. Articles 42A.551(a-1) and 42A.554(d), Code of
Criminal Procedure, as added by this Act, apply only to an offense
committed on or after September 1, 2020. An offense committed
before September 1, 2020, is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before September 1, 2020, if any
element of the offense occurred before that date.
SECTION 12. (a) Articles 55.01 and 55.02, Code of Criminal
Procedure, as amended by this Act, apply to the expunction of arrest
records and files for a person who successfully completes a
commercially sexually exploited persons court program under
Chapter 126, Government Code, or former law before, on, or after the
effective date of this Act, regardless of when the underlying
arrest occurred.
(b) For a person who is entitled to expunction under Article
55.01(a)(2)(A)(ii)(e), Code of Criminal Procedure, as added by this
Act, based on a successful completion of a commercially sexually
exploited persons court program under Chapter 126, Government Code,
or former law before the effective date of this Act,
notwithstanding the 30-day time limit provided for the court to
enter an automatic order of expunction under Section 1a(a-2),
Article 55.02, Code of Criminal Procedure, as added by this Act, the
court may, with the consent of the attorney representing the state,
enter an order of expunction for the person as soon as practicable
after the court receives written notice from any party to the case
about the person's entitlement to the expunction.
SECTION 13. This Act takes effect September 1, 2019.