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A BILL TO BE ENTITLED
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AN ACT
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relating to criminal asset forfeiture, the disposition of proceeds |
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and property from criminal asset forfeiture, and accountability for |
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that disposition; providing civil penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 59.03(d), Code of Criminal Procedure, is |
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amended to read as follows: |
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(d) A person in the possession of property at the time a |
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peace officer seizes the property under this chapter may at the time |
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of seizure assert the person's interest in or right to the property. |
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A peace officer [who seizes property under this chapter] may not [at
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the time of seizure] request, require, or in any manner induce any |
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person, including a person who asserts an interest in or right to |
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the property seized, to execute a document purporting to waive the |
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person's interest in or rights to [the] property seized under this |
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chapter. |
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SECTION 2. Article 59.03, Code of Criminal Procedure, is |
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amended to add subsection (e) to read as follows: |
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(e) An attorney representing the state may not request, |
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require, or in any manner induce any person, including a person who |
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asserts an interest in or right to the property seized, to execute a |
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document purporting to waive the person's interest in or rights to |
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property seized under this chapter prior to notice being filed in |
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accordance with Article 59.04, Code of Criminal Procedure. |
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SECTION 3. Article 59.06, Code of Criminal Procedure, is |
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amended by amending Subsections (d) and (g) and adding Subsections |
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(c-1) and (d-1) to read as follows: |
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(c-1) Any post-judgment interest from money, proceeds, or |
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other things of value that are deposited in an interest-bearing |
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bank account under Subsection (c) shall be used for the same purpose |
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as the principal. |
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(d) Proceeds awarded under this chapter to a law enforcement |
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agency or to the attorney representing the state may be spent by the |
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agency or the attorney after a budget for the expenditure of the |
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proceeds has been submitted to the commissioners court or governing |
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body of the municipality. The budget must be detailed and clearly |
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list and define the categories of expenditures, but may not list |
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details that would endanger the security of an investigation or |
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prosecution. Expenditures are subject to the audit and enforcement |
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provisions established under this chapter [article]. A |
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commissioners court or governing body of a municipality may not use |
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the existence of an award to offset or decrease total salaries, |
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expenses, and allowances that the agency or the attorney receives |
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from the commissioners court or governing body at or after the time |
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the proceeds are awarded. |
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(d-1) The head of a law enforcement [the] agency or an |
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attorney representing the state may not use proceeds or property |
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under this chapter for: [the existence of an award to increase a
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salary, expense, or allowance for an employee of the attorney or
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agency who is budgeted by the commissioners court or governing body
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unless the commissioners court or governing body first approves the
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expenditure]. |
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(1) political campaigns; |
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(2) donations to entities that do not assist in: |
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(A) the detection, investigation, or prosecution |
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of criminal offenses or abuse, as that term is defined by Section |
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261.001, Family Code; |
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(B) the provision of services to victims or |
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witnesses of criminal offenses or abuse, as that term is defined by |
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Section 261.001, Family Code; |
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(C) the provision of mental health, drug, or |
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alcohol rehabilitation services; or |
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(D) training or education related to the |
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functions described by Subdivisions (A)-(C), subject to travel |
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regulations established by the commissioners court or governing |
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body of the municipality; |
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(3) training or education of members of the judiciary; |
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(4) the purchase of alcoholic beverages; |
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(5) by an official upon retirement from or loss of an |
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election for that office, any expense not previously approved by |
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the commissioners court or governing body in a budget submitted for |
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the applicable cycle; or |
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(6) the existence of an award to increase a salary, |
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expense, or allowance for an employee of the attorney or agency who |
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is budgeted by the commissioners court or governing body unless the |
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commissioners court or governing body first approves the |
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expenditure. Awards are not to be used to supplant local funds |
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appropriated for these purposes. |
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(g)(1) All law enforcement agencies and attorneys |
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representing the state who receive proceeds or property under this |
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chapter shall account for the seizure, forfeiture, receipt, and |
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specific expenditure of all the [such] proceeds and property in an |
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audit, which is to be performed annually by the auditing entity of |
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the commissioners court or governing body of a municipality, as |
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appropriate. The annual period of the audit for a law enforcement |
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agency is the fiscal year of the appropriate county or municipality |
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and the annual period for an attorney representing the state is the |
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state fiscal year. The audit must [shall] be completed on a form |
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provided by the attorney general and must include a detailed report |
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and explanation of all expenditures, including salaries and |
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overtime pay, training, equipment and supplies, and other items. |
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Certified copies of the audit shall be delivered by the law |
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enforcement agency or attorney representing the state to [the
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comptroller's office and] the attorney general not later than the |
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60th day after the date on which the annual period that is the |
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subject of the audit ends. |
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(2) If a copy of the audit is not delivered to the |
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attorney general within the period required by Subdivision (1), |
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within five days after the end of the period the attorney general |
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shall notify the law enforcement agency or the attorney |
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representing the state of that fact. On a showing of good cause, |
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the attorney general may grant an extension permitting the agency |
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or attorney to deliver a copy of the audit after the period required |
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by Subdivision (1) and before the 76th day after the date on which |
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the annual period that is the subject of the audit ends. If the law |
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enforcement agency or the attorney representing the state fails to |
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establish good cause for not delivering the copy of the audit within |
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the period required by Subdivision (1) or fails to deliver a copy of |
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an audit within the extension period, the attorney general shall |
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notify the comptroller of that fact. |
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(3) On notice under Subdivision (2) [this
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subdivision], the comptroller shall perform the audit otherwise |
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required by Subdivision (1). At the conclusion of the audit, the |
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comptroller shall forward a copy of the audit to the attorney |
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general. The law enforcement agency or attorney representing the |
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state is liable to the comptroller for the costs of the comptroller |
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in performing the audit. |
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SECTION 4. Chapter 59, Code of Criminal Procedure, is |
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amended by adding Articles 59.061 and 59.062 to read as follows: |
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Art. 59.061. AUDITS AND INVESTIGATIONS. (a) The state |
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auditor may at any time perform an audit or conduct an |
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investigation, in accordance with this article and Chapter 321, |
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Government Code, related to the seizure, forfeiture, receipt, and |
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specific expenditure of proceeds and property received under this |
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chapter. The state auditor is not required to perform an audit |
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under this subsection if the comptroller performs the audit under |
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Article 59.06(g)(3). |
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(b) The state auditor is entitled at any time to access any |
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book, account, voucher, confidential or nonconfidential report, or |
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other record of information, including electronic data, maintained |
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under Article 59.06, except that if the release of the applicable |
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information is restricted under state or federal law, the state |
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auditor may access the information only with the approval of a court |
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or federal administrative agency, as appropriate. |
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(c) If the results of an audit or investigation under this |
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article indicate that a law enforcement agency or attorney |
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representing the state violated a provision of this chapter |
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relating to the disposition of proceeds or property received under |
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this chapter, the state auditor shall promptly notify the attorney |
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general for the purpose of initiating appropriate enforcement |
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proceedings under Article 59.062. |
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Art. 59.062. ENFORCEMENT. (a) The attorney general may |
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institute a suit in the name of the state in a district court in a |
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county in which the law enforcement agency or attorney representing |
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the state is located or in a Travis County district court for |
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injunctive relief, to recover a civil penalty, or for both |
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injunctive relief and a civil penalty, if the results of an audit or |
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investigation under this chapter indicate that a law enforcement |
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agency or attorney representing the state violated a provision of |
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this chapter relating to the disposition of proceeds or property |
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received under this chapter. |
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(b) On application for injunctive relief and after a finding |
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that a law enforcement agency or attorney representing the state |
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violated a provision of this chapter relating to the disposition of |
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proceeds or property received under this chapter, the district |
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court shall grant the injunctive relief the facts may warrant, |
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without requirement for bond. |
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(c) A law enforcement agency or attorney representing the |
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state who commits a violation described by Subsection (a) is liable |
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to the state for a civil penalty in an amount not to exceed $100,000 |
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as determined by the district court to be appropriate for the nature |
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and seriousness of the violation. In determining an appropriate |
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penalty for the violation, the court shall consider: |
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(1) any previous violations committed by the law |
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enforcement agency or attorney representing the state; |
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(2) the seriousness of the violation, including the |
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nature, circumstances, extent, and gravity of the violation; |
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(3) the demonstrated good faith of the law enforcement |
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agency or attorney representing the state; and |
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(4) the amount necessary to deter future violations. |
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(d) If the attorney general brings a suit under this article |
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and an injunction is granted or a civil penalty is imposed, the |
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attorney general may recover reasonable expenses, court costs, |
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investigative costs, and attorney's fees. |
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(e) Any penalty, cost, fee, or other expense awarded under |
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this article is payable solely from the special fund created under |
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Article 59.06(c) by the law enforcement agency or attorney |
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representing the state for the administration of forfeiture funds. |
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(f) A civil penalty collected under this article shall be |
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deposited to the credit of the drug court account in the general |
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revenue fund to help fund drug court programs established under |
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Chapter 469, Health and Safety Code. |
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SECTION 5. The changes in law made by this Act to Article |
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59.03, Code of Criminal Procedure, apply only to property seized on |
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or after the effective date of this Act. Property seized before the |
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effective date of this Act is covered by the law in effect when the |
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property was seized, and the former law is continued in effect for |
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that purpose. For purposes of this section, property was seized |
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before the effective date of this Act if any portion of the property |
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was seized before that date. |
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SECTION 6. The changes in law made by this Act to Articles |
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59.06, 59.061, and 59.062, Code of Criminal Procedure, apply to the |
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disposition or use on or after the effective date of this Act of |
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proceeds or property received by a law enforcement agency or |
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attorney representing the state under Chapter 59, Code of Criminal |
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Procedure, regardless of whether the seizure of the proceeds or |
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property occurred before, on, or after the effective date of this |
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Act. |
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SECTION 7. This Act takes effect September 1, 2009. |