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.