H.B. No. 839
AN ACT
relating to the disposition of certain obscene material and child
pornography.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (a), (b), (e), (f), and (g), Article
18.18, Code of Criminal Procedure, are amended to read as follows:
(a) Following the final conviction of a person for
possession of a gambling device or equipment, altered gambling
equipment, or gambling paraphernalia, for an offense involving a
criminal instrument, for an offense involving an obscene device or
material, for an offense involving child pornography, or for an
offense involving a scanning device or re-encoder, the court
entering the judgment of conviction shall order that the machine,
device, gambling equipment or gambling paraphernalia, instrument,
obscene device or material, child pornography, or scanning device
or re-encoder be destroyed or forfeited to the state. Not later
than the 30th day after the final conviction of a person for an
offense involving a prohibited weapon, the court entering the
judgment of conviction on its own motion, on the motion of the
prosecuting attorney in the case, or on the motion of the law
enforcement agency initiating the complaint on notice to the
prosecuting attorney in the case if the prosecutor fails to move for
the order shall order that the prohibited weapon be destroyed or
forfeited to the law enforcement agency that initiated the
complaint. If the court fails to enter the order within the time
required by this subsection, any magistrate in the county in which
the offense occurred may enter the order. Following the final
conviction of a person for an offense involving dog fighting, the
court entering the judgment of conviction shall order that any
dog-fighting equipment be destroyed or forfeited to the state.
Destruction of dogs, if necessary, must be carried out by a
veterinarian licensed in this state or, if one is not available, by
trained personnel of a humane society or an animal shelter. If
forfeited, the court shall order the contraband delivered to the
state, any political subdivision of the state, or to any state
institution or agency. If gambling proceeds were seized, the court
shall order them forfeited to the state and shall transmit them to
the grand jury of the county in which they were seized for use in
investigating alleged violations of the Penal Code, or to the
state, any political subdivision of the state, or to any state
institution or agency.
(b) If there is no prosecution or conviction following
seizure, the magistrate to whom the return was made shall notify in
writing the person found in possession of the alleged gambling
device or equipment, altered gambling equipment or gambling
paraphernalia, gambling proceeds, prohibited weapon, obscene
device or material, child pornography, scanning device or
re-encoder, criminal instrument, or dog-fighting equipment to show
cause why the property seized should not be destroyed or the
proceeds forfeited. The magistrate, on the motion of the law
enforcement agency seizing a prohibited weapon, shall order the
weapon destroyed or forfeited to the law enforcement agency seizing
the weapon, unless a person shows cause as to why the prohibited
weapon should not be destroyed or forfeited. A law enforcement
agency shall make a motion under this section in a timely manner
after the time at which the agency is informed in writing by the
attorney representing the state that no prosecution will arise from
the seizure.
(e) Any person interested in the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
child pornography, scanning device or re-encoder, criminal
instrument, or dog-fighting equipment seized must appear before the
magistrate on the 20th day following the date the notice was mailed
or posted. Failure to timely appear forfeits any interest the
person may have in the property or proceeds seized, and no person
after failing to timely appear may contest destruction or
forfeiture.
(f) If a person timely appears to show cause why the
property or proceeds should not be destroyed or forfeited, the
magistrate shall conduct a hearing on the issue and determine the
nature of property or proceeds and the person's interest therein.
Unless the person proves by a preponderance of the evidence that the
property or proceeds is not gambling equipment, altered gambling
equipment, gambling paraphernalia, gambling device, gambling
proceeds, prohibited weapon, obscene device or material, child
pornography, criminal instrument, scanning device or re-encoder,
or dog-fighting equipment and that he is entitled to possession,
the magistrate shall dispose of the property or proceeds in
accordance with Paragraph (a) of this article.
(g) For purposes of this article:
(1) "criminal instrument" has the meaning defined in
the Penal Code;
(2) "gambling device or equipment, altered gambling
equipment or gambling paraphernalia" has the meaning defined in the
Penal Code;
(3) "prohibited weapon" has the meaning defined in the
Penal Code;
(4) "dog-fighting equipment" means:
(A) equipment used for training or handling a
fighting dog, including a harness, treadmill, cage, decoy, pen,
house for keeping a fighting dog, feeding apparatus, or training
pen;
(B) equipment used for transporting a fighting
dog, including any automobile, or other vehicle, and its
appurtenances which are intended to be used as a vehicle for
transporting a fighting dog;
(C) equipment used to promote or advertise an
exhibition of dog fighting, including a printing press or similar
equipment, paper, ink, or photography equipment; or
(D) a dog trained, being trained, or intended to
be used to fight with another dog;
(5) "obscene device" and "obscene" have the meanings
assigned by Section 43.21, Penal Code;[.]
(6) "re-encoder" has the meaning assigned by Section
35.58, Business & Commerce Code; [and]
(7) "scanning device" has the meaning assigned by
Section 35.58, Business & Commerce Code; and
(8) "obscene material" and "child pornography"
include digital images and the media and equipment on which those
images are stored.
SECTION 2. Article 18.18, Code of Criminal Procedure, is
amended by adding Subsection (h) to read as follows:
(h) No provider of an electronic communication service or of
a remote computing service to the public shall be held liable for an
offense involving obscene material or child pornography under this
section on account of any action taken in good faith in providing
that service.
SECTION 3. The change in law made by this Act applies only
to the disposition of obscene material or child pornography seized
on or after September 1, 2005. The disposition of obscene material
or child pornography seized before September 1, 2005, is covered by
the law in effect when the material or pornography was seized, and
the former law is preserved for that purpose.
SECTION 4. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 839 was passed by the House on March
21, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 839 was passed by the Senate on May
23, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor