Bill Text: TX SB1165 | 2017-2018 | 85th Legislature | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-03-09 - Referred to Criminal Justice [SB1165 Detail]
Download: Texas-2017-SB1165-Introduced.html
85R5910 LHC-D | ||
By: Garcia | S.B. No. 1165 |
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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. |