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A BILL TO BE ENTITLED
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AN ACT
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relating to repealing civil asset forfeiture provisions and |
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establishing criminal asset forfeiture in this state. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 1, Code of Criminal Procedure, is amended |
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by adding Chapter 59A to read as follows: |
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CHAPTER 59A. CRIMINAL ASSET FORFEITURE |
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Art. 59A.001. DEFINITIONS. In this chapter: |
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(1) "Abandoned property" means personal property left |
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by an owner who has intentionally relinquished all rights to its |
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control. |
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(2) "Actual knowledge" means direct and clear |
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awareness of information, facts, or conditions. |
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(3) "Constructive knowledge" means knowledge that is |
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imputed to family or household members of the defendant if the |
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defendant admitted guilt or was adjudicated guilty three or more |
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times for the same or a similar offense in the 10 years preceding an |
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alleged offense. |
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(4) "Contraband" means tangible or intangible goods, |
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including scheduled drugs without a valid prescription, the |
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importation, exportation, or possession of which is illegal. |
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(5) "Conveyance" means a device used for |
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transportation. The term includes a motor vehicle, trailer, |
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snowmobile, airplane, or vessel, and any attached equipment. The |
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term does not include stolen property. |
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(6) "Department" means the Department of Public |
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Safety. |
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(7) "Instrumentality" means property that is |
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otherwise lawful to possess and that is used in the furtherance or |
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commission of an offense of a law subject to forfeiture. The term |
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includes land, buildings, containers, conveyances, equipment, |
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materials, products, computer hardware or software, |
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telecommunications devices, firearms, ammunition, tools, and |
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money, securities, negotiable instruments, or other means of |
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exchange. |
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(8) "Law enforcement agency" means a law enforcement |
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agency of this state or a political subdivision of this state that |
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has authority under state law to engage in seizure and forfeiture. |
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(9) "Law subject to forfeiture" means a felony offense |
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under state law, the punishment for which explicitly authorizes |
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forfeiture. |
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Art. 59A.002. PURPOSE. The purpose of this chapter is to: |
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(1) deter criminal activity by reducing its economic |
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incentives; |
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(2) increase the pecuniary loss from criminal |
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activity; |
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(3) protect against the wrongful forfeiture of |
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property; and |
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(4) ensure that only criminal forfeiture is allowed in |
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this state. |
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Art. 59A.003. CRIMINAL ASSET FORFEITURE; PROPERTY SUBJECT |
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TO FORFEITURE. The convicting court may order a person convicted of |
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violating a law subject to forfeiture to forfeit: |
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(1) property the person derived from the commission of |
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the offense; |
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(2) property directly traceable to property derived |
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from the commission of the offense; or |
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(3) instrumentalities the person used in the |
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commission of the offense. |
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Art. 59A.004. EXEMPT PROPERTY. Property that is homestead |
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property, a motor vehicle valued at less than $10,000, and United |
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States currency totaling $200 or less are exempt from forfeiture. |
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Art. 59A.005. CONTRABAND. A person may not have a property |
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right in contraband. Contraband is subject to seizure and must be |
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disposed of in accordance with state law. Contraband is not subject |
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to forfeiture under this chapter. |
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Art. 59A.006. CONVICTION REQUIRED; STANDARD OF PROOF. (a) |
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Property may be forfeited under this chapter if: |
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(1) a person is convicted under a state law subject to |
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forfeiture; and |
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(2) the state establishes by clear and convincing |
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evidence that the applicable requirements of Articles |
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59A.003-59A.005 are met. |
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(b) This chapter does not prevent property from being |
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forfeited by plea agreement approved by the convicting court. |
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Art. 59A.007. SUBSTITUTION OF ASSETS. On the state's |
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motion following conviction, the convicting court may order the |
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forfeiture of substitute property owned by the defendant if the |
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state proves by a preponderance of the evidence that the defendant |
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intentionally transferred, sold, or deposited property with a third |
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party to avoid the court's jurisdiction. The value of substitute |
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property forfeited may not exceed the value of the property |
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transferred, sold, or deposited. |
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Art. 59A.008. NO ADDITIONAL REMEDIES. The state may not |
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seek a personal money judgment against the defendant or any other |
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remedy not provided by this chapter. |
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Art. 59A.009. NO JOINT AND SEVERAL LIABILITY. A defendant |
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is not jointly and severally liable for forfeiture awards owed by |
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other defendants. If ownership is unknown, the convicting court |
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may order each defendant to forfeit property on a pro rata basis or |
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by other equitable means. |
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Art. 59A.010. SEIZURE OF PERSONAL PROPERTY WITH PROCESS. |
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At the request of the state made at any time, a court may issue an ex |
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parte preliminary order to seize or secure personal property for |
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which forfeiture is sought and to provide for its custody. The |
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application for and the issuance, execution, and return of the |
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order are governed by state law. |
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Art. 59A.011. SEIZURE OF PERSONAL PROPERTY WITHOUT PROCESS. |
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Personal property subject to forfeiture may be seized at any time |
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without a court order if: |
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(1) the seizure is incident to a lawful arrest or |
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search; |
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(2) the personal property has been the subject of a |
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previous judgment in favor of the state; or |
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(3) the law enforcement agency seizing the property |
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has probable cause to believe that the seizure is immediately |
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necessary to prevent the removal or destruction of the personal |
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property and that the personal property is forfeitable under this |
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chapter. |
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Art. 59A.012. SEIZURE OF REAL PROPERTY WITH PROCESS. (a) |
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Real property may be seized only under a court order. A court may |
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issue an order to seize or secure real property for which forfeiture |
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is sought only after the property owners are provided notice and an |
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opportunity for a contested hearing to determine the sufficiency of |
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probable cause for the seizure. |
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(b) This section does not prohibit the attorney |
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representing the state from seeking a lis pendens or restraining |
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order to prohibit the sale or destruction of the real property. |
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(c) The application for and the issuance, execution, and |
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return of any order are governed by state law. |
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Art. 59A.013. RECEIPT. A law enforcement officer who |
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seizes property shall give an itemized receipt to the person |
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possessing the property, or in the absence of any person, leave a |
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receipt in the place where the property was found, if reasonably |
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possible. |
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Art. 59A.014. TITLE TO PROPERTY. (a) At the time of a |
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seizure or the issuance of a restraining order, the state acquires |
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provisional title to the seized property and is authorized to hold |
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and protect the property. |
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(b) Title to the property vests with the state when the |
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trier of fact renders a final forfeiture verdict and the vesting |
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relates back to the time when the state acquired provisional title. |
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Title acquired under this subsection is subject to claims by third |
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parties adjudicated as provided by this chapter. |
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Art. 59A.015. PRETRIAL HEARING REGARDING REPLEVIN. (a) In |
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this article, "claimant" means a defendant or a third party |
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claiming an ownership interest in property that has been seized. |
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(b) Following a seizure of property, a claimant has the |
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right to a pretrial hearing to determine the validity of the |
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seizure. |
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(c) The claimant may claim, at any time on or before the 60th |
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day before the scheduled start of the trial of the related criminal |
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offense, the right to possession of property by motion to the court |
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to issue a writ of replevin. |
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(d) The claimant must file a motion establishing the |
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validity of the alleged interest in the property. |
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(e) The court shall hear the motion not later than the 30th |
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day after the date the motion is filed. |
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(f) The state must file an answer showing probable cause for |
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the seizure or a cross motion not later than the 10th day before the |
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hearing on the claimant's motion. |
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(g) The court shall grant the claimant's motion if the court |
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finds that: |
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(1) the final judgment is likely to require the state |
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to return the property to the claimant; |
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(2) the property is not reasonably required to be held |
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for investigatory reasons; or |
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(3) the property is the only reasonable means for a |
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defendant to pay for legal representation in the forfeiture |
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proceeding or in the prosecution of the related criminal offense. |
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(h) At the court's discretion under Subsection (g)(3), the |
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court may order the return of funds or property sufficient to obtain |
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legal counsel but less than the total amount seized, and may require |
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an accounting for the use of the returned funds or property. |
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(i) Instead of ordering the issuance of the writ of |
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replevin, the court may order the state to give security or written |
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assurance for satisfaction of any judgment, including damages, that |
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may be rendered in the action, or order other appropriate relief. |
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Art. 59A.016. FORFEITURE PROCEEDING. A proceeding for the |
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forfeiture of property must be held following the trial of the |
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related alleged offense. If the value of the property is less than |
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$10,000, the proceeding must be held before the judge only. |
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Art. 59A.017. PROPORTIONALITY HEARING. (a) At any time |
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following determination of forfeiture by the trier of fact, the |
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defendant may petition the court to determine whether the |
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forfeiture is unconstitutionally excessive under the United States |
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Constitution or the Texas Constitution. |
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(b) The defendant has the burden of establishing by a |
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preponderance of the evidence that the forfeiture is grossly |
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disproportional to the seriousness of the offense at a hearing |
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conducted by the court without a jury. |
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(c) In determining whether the forfeiture of an |
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instrumentality is unconstitutionally excessive, the court may |
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consider all relevant factors, including: |
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(1) the seriousness of the offense and its impact on |
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the community, including the duration of the activity and the harm |
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caused by the defendant; |
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(2) the extent to which the defendant participated in |
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the offense; |
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(3) the extent to which the property was used in |
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committing the offense; |
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(4) the sentence imposed for the offense; and |
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(5) whether the offense was completed or attempted. |
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(d) In determining the value of the instrumentality subject |
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to forfeiture, the court may consider all relevant factors, |
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including: |
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(1) the fair market value of the property; |
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(2) the value of the property to the defendant, |
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including hardship to the defendant if the property is ordered |
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forfeited; and |
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(3) the hardship from the loss of a primary residence, |
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motor vehicle, or other property to the defendant's family members |
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or others if the property is ordered forfeited. |
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(e) The court may not consider the value of the |
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instrumentality to the state in determining whether the forfeiture |
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of an instrumentality is unconstitutionally excessive. |
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Art. 59A.018. SECURITY INTEREST. A bona fide security |
|
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interest is not subject to forfeiture unless the person claiming |
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the security interest had actual knowledge that the property was |
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subject to forfeiture at the time the property was seized or |
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restrained under this chapter. A person claiming a security |
|
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interest must establish the validity of the interest by a |
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preponderance of the evidence. |
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Art. 59A.019. INNOCENT OWNER. (a) The property of an |
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innocent owner may not be forfeited. |
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(b) A person who has an ownership interest in property |
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subject to forfeiture existing at the time of the conduct giving |
|
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rise to forfeiture and who claims to be an innocent owner must show |
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that the person has a legal right, title, or interest in the |
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property seized under this chapter. If the person shows legal |
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right, title, or interest in the property, the state must prove by a |
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preponderance of the evidence that the person had actual or |
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constructive knowledge of the underlying offense giving rise to the |
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forfeiture. |
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(c) A person who acquired an ownership interest in property |
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subject to forfeiture after the commission of an offense giving |
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rise to the forfeiture and who claims to be an innocent owner must |
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show that the person has legal right, title, or interest in the |
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property seized under this chapter. If the person shows legal |
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right, title, or interest in the property, the state must prove by a |
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preponderance of the evidence that at the time the person acquired |
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the property, the person: |
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(1) had actual or constructive knowledge that the |
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property was subject to forfeiture; or |
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(2) did not purchase the property for valuable |
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consideration without notice of any defect in title. |
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(d) If the state fails to meet its burden in Subsection (b) |
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or (c), the court shall find that the person is an innocent owner |
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and shall order the state to relinquish all claims of title to the |
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property. |
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Art. 59A.020. APPEAL. A party to forfeiture litigation may |
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appeal the court's decision regarding the seizure, forfeiture, and |
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distribution of property under this chapter. |
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Art. 59A.021. DISPOSITION OF PROPERTY AND PROCEEDS. (a) If |
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abandoned property or contraband held for evidentiary purposes is |
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no longer needed for that purpose, the court may order that it be: |
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(1) delivered not later than the 30th day after the |
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|
date of the order to the comptroller of public accounts; or |
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(2) if the property is contraband, destroyed not later |
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than the 30th day after the date of the order. |
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(b) If property is forfeited under this chapter, the court |
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may order that the property be delivered not later than the 30th day |
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after the date of the order to the comptroller. |
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(c) On the court's own motion or the motion of any party, the |
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court may order that a portion of the currency seized or of the |
|
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proceeds from the public auction of property be used to pay |
|
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reasonable expenses for the seizure, storage, and maintenance or |
|
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custody of any forfeited items, other than expenses for personnel. |
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(d) All abandoned property must be delivered to the |
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comptroller. |
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(e) The comptroller shall dispose of all forfeited and |
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abandoned property, other than currency, at public auction. The |
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auction proceeds and forfeited currency shall first be used to pay |
|
|
all outstanding recorded liens on the forfeited property, and then |
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to comply with any court order regarding the payment of expenses. |
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The comptroller shall deposit all remaining money in the general |
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revenue fund. |
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Art. 59A.022. PROHIBITION ON RETAINING PROPERTY; SALE |
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RESTRICTIONS. A law enforcement agency may not: |
|
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(1) retain forfeited or abandoned property for the |
|
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agency's use; or |
|
|
(2) sell forfeited or abandoned property directly or |
|
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indirectly to: |
|
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(A) an employee of the agency; |
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(B) a person related to an employee by |
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consanguinity or affinity; or |
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(C) another law enforcement agency. |
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Art. 59A.023. REPORTING. (a) Not later than February 1 of |
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each year, each law enforcement agency shall report to the |
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department the following information regarding forfeitures |
|
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completed by the agency under state or federal forfeiture law |
|
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during the previous calendar year: |
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(1) the total number of forfeitures of currency; |
|
|
(2) the total number of forfeitures and the number of |
|
|
items of property forfeited according to categories specified by |
|
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the department; |
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|
(3) the total market value of each category of |
|
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property forfeited; |
|
|
(4) the total number of occurrences of each type of |
|
|
offense underlying the forfeitures, including offenses involving |
|
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controlled substances, driving while intoxicated, and other |
|
|
offenses; and |
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(5) any other information required by the department. |
|
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(b) The department shall prescribe a standardized form and |
|
|
provide for electronic submission of a report required under |
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Subsection (a). |
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(c) Each law enforcement agency shall file with the |
|
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department the report required under Subsection (a) for the law |
|
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enforcement agency and the corresponding attorney representing the |
|
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state. A law enforcement agency shall file separate reports for |
|
|
forfeitures completed under state and federal forfeiture law. If a |
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law enforcement agency did not engage in forfeitures during the |
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reporting period, the agency must file a report indicating that |
|
|
fact. |
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(d) Not later than April 1 of each year, the department |
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shall issue an aggregate report of all forfeitures in the state and |
|
|
make available on its website the reports submitted by law |
|
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enforcement agencies and the department's aggregate report. |
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Art. 59A.024. RETURN OF PROPERTY; DAMAGES; COSTS. (a) A |
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law enforcement agency that holds property under this chapter shall |
|
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return the property to the owner not later than the fifth day after |
|
|
the date: |
|
|
(1) the court finds that the owner had a bona fide |
|
|
security interest; |
|
|
(2) the court finds that the owner was an innocent |
|
|
owner; |
|
|
(3) the acquittal of the owner of the criminal charge |
|
|
against the owner that is the basis of the forfeiture proceeding; or |
|
|
(4) the dismissal of the criminal charge against the |
|
|
owner that is the basis of the forfeiture proceeding. |
|
|
(b) The law enforcement agency that holds the property is |
|
|
responsible for any damages, storage fees, and related costs |
|
|
applicable to property returned under Subsection (a). |
|
|
Art. 59A.025. TRANSFER OF FORFEITABLE PROPERTY TO FEDERAL |
|
|
GOVERNMENT. A law enforcement agency or attorney representing the |
|
|
state may not directly or indirectly transfer seized property to |
|
|
any federal law enforcement authority or other federal agency |
|
|
unless: |
|
|
(1) the value of the seized property exceeds $50,000, |
|
|
excluding the potential value of the sale of any contraband; and |
|
|
(2) the attorney representing the state determines |
|
|
that: |
|
|
(A) the activity giving rise to the investigation |
|
|
or seizure is interstate in nature and sufficiently complex to |
|
|
justify the transfer; or |
|
|
(B) the seized property may only be forfeited |
|
|
under federal law. |
|
|
SECTION 2. Section 72.051(a), Business & Commerce Code, is |
|
|
amended to read as follows: |
|
|
(a) In this section, "law enforcement agency" means an |
|
|
agency of the state or an agency of a political subdivision of the |
|
|
state authorized by law to employ peace officers [has the meaning
|
|
|
assigned by Article 59.01, Code of Criminal Procedure]. |
|
|
SECTION 3. Section 140.013, Civil Practice and Remedies |
|
|
Code, is amended to read as follows: |
|
|
Sec. 140.013. PREVIOUSLY SEIZED ASSETS. Notwithstanding |
|
|
another provision of this chapter, no remedies provided by this |
|
|
chapter may be assessed against proceeds, contraband, or other |
|
|
property over which a law enforcement agency has previously |
|
|
asserted jurisdiction under Chapter 59A [59], Code of Criminal |
|
|
Procedure, at the time a suit under this chapter was filed. |
|
|
SECTION 4. Article 18.01(g), Code of Criminal Procedure, is |
|
|
amended to read as follows: |
|
|
(g) A search warrant may not be issued under [Subdivision
|
|
|
(12),] Article 18.02(a)(12) [18.02, of this code] unless the sworn |
|
|
affidavit required by Subsection (b) of this article sets forth |
|
|
sufficient facts to establish probable cause that a specific felony |
|
|
offense has been committed and that the specifically described |
|
|
property or items that are to be searched for or seized constitute |
|
|
contraband as defined in Article 59A.001 [59.01 of this code] and |
|
|
are located at or on the particular person, place, or thing to be |
|
|
searched. |
|
|
SECTION 5. Article 18.02(a), Code of Criminal Procedure, is |
|
|
amended to read as follows: |
|
|
(a) A search warrant may be issued to search for and seize: |
|
|
(1) property acquired by theft or in any other manner |
|
|
which makes its acquisition a penal offense; |
|
|
(2) property specially designed, made, or adapted for |
|
|
or commonly used in the commission of an offense; |
|
|
(3) arms and munitions kept or prepared for the |
|
|
purposes of insurrection or riot; |
|
|
(4) weapons prohibited by the Penal Code; |
|
|
(5) gambling devices or equipment, altered gambling |
|
|
equipment, or gambling paraphernalia; |
|
|
(6) obscene materials kept or prepared for commercial |
|
|
distribution or exhibition, subject to the additional rules set |
|
|
forth by law; |
|
|
(7) a drug, controlled substance, immediate |
|
|
precursor, chemical precursor, or other controlled substance |
|
|
property, including an apparatus or paraphernalia kept, prepared, |
|
|
or manufactured in violation of the laws of this state; |
|
|
(8) any property the possession of which is prohibited |
|
|
by law; |
|
|
(9) implements or instruments used in the commission |
|
|
of a crime; |
|
|
(10) property or items, except the personal writings |
|
|
by the accused, constituting evidence of an offense or constituting |
|
|
evidence tending to show that a particular person committed an |
|
|
offense; |
|
|
(11) persons; |
|
|
(12) contraband subject to forfeiture under Chapter |
|
|
59A [59 of this code]; or |
|
|
(13) electronic customer data held in electronic |
|
|
storage, including the contents of and records and other |
|
|
information related to a wire communication or electronic |
|
|
communication held in electronic storage. |
|
|
SECTION 6. Articles 18.19(c), (d-1), and (e), Code of |
|
|
Criminal Procedure, are amended to read as follows: |
|
|
(c) If there is no prosecution or conviction for an offense |
|
|
involving the weapon seized, the magistrate to whom the seizure was |
|
|
reported shall, before the 61st day after the date the magistrate |
|
|
determines that there will be no prosecution or conviction, notify |
|
|
in writing the person found in possession of the weapon that the |
|
|
person is entitled to the weapon upon written request to the |
|
|
magistrate. The magistrate shall order the weapon returned to the |
|
|
person found in possession before the 61st day after the date the |
|
|
magistrate receives a request from the person. If the weapon is not |
|
|
requested before the 61st day after the date of notification, the |
|
|
magistrate shall, before the 121st day after the date of |
|
|
notification, order the weapon destroyed, sold at public sale by |
|
|
the law enforcement agency holding the weapon or by an auctioneer |
|
|
licensed under Chapter 1802, Occupations Code, or forfeited to the |
|
|
state for use by the law enforcement agency holding the weapon or by |
|
|
a county forensic laboratory designated by the magistrate. If the |
|
|
magistrate does not order the return, destruction, sale, or |
|
|
forfeiture of the weapon within the applicable period prescribed by |
|
|
this subsection, the law enforcement agency holding the weapon may |
|
|
request an order of destruction, sale, or forfeiture of the weapon |
|
|
from the magistrate. Only a firearms dealer licensed under 18 |
|
|
U.S.C. Section 923 may purchase a weapon at public sale under this |
|
|
subsection. Proceeds from the sale of a seized weapon under this |
|
|
subsection shall be transferred, after the deduction of court costs |
|
|
and [to which a district court clerk is entitled under Article
|
|
|
59.05(f), followed by the deduction of] auction costs, to the law |
|
|
enforcement agency holding the weapon. |
|
|
(d-1) Only a firearms dealer licensed under 18 U.S.C. |
|
|
Section 923 may purchase a weapon at public sale under Subsection |
|
|
(d). Proceeds from the sale of a seized weapon under Subsection (d) |
|
|
shall be transferred, after the deduction of court costs and [to
|
|
|
which a district court clerk is entitled under Article 59.05(f),
|
|
|
followed by the deduction of] auction costs, to the law enforcement |
|
|
agency holding the weapon. |
|
|
(e) If the person found in possession of a weapon is |
|
|
convicted of an offense involving the use of the weapon, before the |
|
|
61st day after the date of conviction the court entering judgment of |
|
|
conviction shall order destruction of the weapon, sale at public |
|
|
sale by the law enforcement agency holding the weapon or by an |
|
|
auctioneer licensed under Chapter 1802, Occupations Code, or |
|
|
forfeiture to the state for use by the law enforcement agency |
|
|
holding the weapon or by a county forensic laboratory designated by |
|
|
the court. If the court entering judgment of conviction does not |
|
|
order the destruction, sale, or forfeiture of the weapon within the |
|
|
period prescribed by this subsection, the law enforcement agency |
|
|
holding the weapon may request an order of destruction, sale, or |
|
|
forfeiture of the weapon from a magistrate. Only a firearms dealer |
|
|
licensed under 18 U.S.C. Section 923 may purchase a weapon at public |
|
|
sale under this subsection. Proceeds from the sale of a seized |
|
|
weapon under this subsection shall be transferred, after the |
|
|
deduction of court costs and [to which a district court clerk is
|
|
|
entitled under Article 59.05(f), followed by the deduction of] |
|
|
auction costs, to the law enforcement agency holding the weapon. |
|
|
SECTION 7. Section 157.317(a), Family Code, is amended to |
|
|
read as follows: |
|
|
(a) A child support lien attaches to all real and personal |
|
|
property not exempt under the Texas Constitution or other law, |
|
|
including: |
|
|
(1) an account in a financial institution; |
|
|
(2) a retirement plan, including an individual |
|
|
retirement account; |
|
|
(3) the proceeds of an insurance policy, including the |
|
|
proceeds from a life insurance policy or annuity contract and the |
|
|
proceeds from the sale or assignment of life insurance or annuity |
|
|
benefits, a claim for compensation, or a settlement or award for the |
|
|
claim for compensation, due to or owned by the obligor; and |
|
|
(4) property seized and subject to forfeiture under |
|
|
Chapter 59A [59], Code of Criminal Procedure. |
|
|
SECTION 8. Section 392.303, Finance Code, is amended by |
|
|
amending Subsection (a) and adding Subsection (d) to read as |
|
|
follows: |
|
|
(a) In debt collection, a debt collector may not use unfair |
|
|
or unconscionable means that employ the following practices: |
|
|
(1) seeking or obtaining a written statement or |
|
|
acknowledgment in any form that specifies that a consumer's |
|
|
obligation is one incurred for necessaries of life if the |
|
|
obligation was not incurred for those necessaries; |
|
|
(2) collecting or attempting to collect interest or a |
|
|
charge, fee, or expense incidental to the obligation unless the |
|
|
interest or incidental charge, fee, or expense is expressly |
|
|
authorized by the agreement creating the obligation or legally |
|
|
chargeable to the consumer; or |
|
|
(3) collecting or attempting to collect an obligation |
|
|
under a check, draft, debit payment, or credit card payment, if: |
|
|
(A) the check or draft was dishonored or the |
|
|
debit payment or credit card payment was refused because the check |
|
|
or draft was not drawn or the payment was not made by a person |
|
|
authorized to use the applicable account; |
|
|
(B) the debt collector has received written |
|
|
notice from a person authorized to use the account that the check, |
|
|
draft, or payment was unauthorized; and |
|
|
(C) the person authorized to use the account has |
|
|
filed a report concerning the unauthorized check, draft, or payment |
|
|
with a law enforcement agency [, as defined by Article 59.01, Code
|
|
|
of Criminal Procedure,] and has provided the debt collector with a |
|
|
copy of the report. |
|
|
(d) In this section, "law enforcement agency" means an |
|
|
agency of the state or an agency of a political subdivision of the |
|
|
state authorized by law to employ peace officers. |
|
|
SECTION 9. Section 45.193(d), Government Code, is amended |
|
|
to read as follows: |
|
|
(d) The county attorney has no power, duty, or privilege in |
|
|
Grimes County relating to criminal matters, including asset |
|
|
forfeitures under Chapter 59A [59], Code of Criminal Procedure, |
|
|
appearance bond forfeitures under Chapter 17, Code of Criminal |
|
|
Procedure, and habeas corpus related to criminal matters. |
|
|
SECTION 10. Section 54.656(a), Government Code, is amended |
|
|
to read as follows: |
|
|
(a) A judge may refer to a magistrate any criminal case for |
|
|
proceedings involving: |
|
|
(1) a negotiated plea of guilty before the court; |
|
|
(2) a bond forfeiture; |
|
|
(3) a pretrial motion; |
|
|
(4) a postconviction writ of habeas corpus; |
|
|
(5) an examining trial; |
|
|
(6) an occupational driver's license; |
|
|
(7) an agreed order of expunction under Chapter 55, |
|
|
Code of Criminal Procedure; |
|
|
(8) a [an asset] forfeiture hearing as provided by |
|
|
Chapter 59A [59], Code of Criminal Procedure; |
|
|
(9) an agreed order of nondisclosure provided by |
|
|
Section 411.081; |
|
|
(10) a hearing on a motion to revoke probation; and |
|
|
(11) any other matter the judge considers necessary |
|
|
and proper. |
|
|
SECTION 11. Section 2007.003(b), Government Code, is |
|
|
amended to read as follows: |
|
|
(b) This chapter does not apply to the following |
|
|
governmental actions: |
|
|
(1) an action by a municipality except as provided by |
|
|
Subsection (a)(3); |
|
|
(2) a lawful forfeiture or seizure of contraband as |
|
|
defined by Article 59A.001 [59.01], Code of Criminal Procedure; |
|
|
(3) a lawful seizure of property as evidence of a crime |
|
|
or violation of law; |
|
|
(4) an action, including an action of a political |
|
|
subdivision, that is reasonably taken to fulfill an obligation |
|
|
mandated by federal law or an action of a political subdivision that |
|
|
is reasonably taken to fulfill an obligation mandated by state law; |
|
|
(5) the discontinuance or modification of a program or |
|
|
regulation that provides a unilateral expectation that does not |
|
|
rise to the level of a recognized interest in private real property; |
|
|
(6) an action taken to prohibit or restrict a |
|
|
condition or use of private real property if the governmental |
|
|
entity proves that the condition or use constitutes a public or |
|
|
private nuisance as defined by background principles of nuisance |
|
|
and property law of this state; |
|
|
(7) an action taken out of a reasonable good faith |
|
|
belief that the action is necessary to prevent a grave and immediate |
|
|
threat to life or property; |
|
|
(8) a formal exercise of the power of eminent domain; |
|
|
(9) an action taken under a state mandate to prevent |
|
|
waste of oil and gas, protect correlative rights of owners of |
|
|
interests in oil or gas, or prevent pollution related to oil and gas |
|
|
activities; |
|
|
(10) a rule or proclamation adopted for the purpose of |
|
|
regulating water safety, hunting, fishing, or control of |
|
|
nonindigenous or exotic aquatic resources; |
|
|
(11) an action taken by a political subdivision: |
|
|
(A) to regulate construction in an area |
|
|
designated under law as a floodplain; |
|
|
(B) to regulate on-site sewage facilities; |
|
|
(C) under the political subdivision's |
|
|
[subdivisions's] statutory authority to prevent waste or protect |
|
|
rights of owners of interest in groundwater; or |
|
|
(D) to prevent subsidence; |
|
|
(12) the appraisal of property for purposes of ad |
|
|
valorem taxation; |
|
|
(13) an action that: |
|
|
(A) is taken in response to a real and |
|
|
substantial threat to public health and safety; |
|
|
(B) is designed to significantly advance the |
|
|
health and safety purpose; and |
|
|
(C) does not impose a greater burden than is |
|
|
necessary to achieve the health and safety purpose; or |
|
|
(14) an action or rulemaking undertaken by the Public |
|
|
Utility Commission of Texas to order or require the location or |
|
|
placement of telecommunications equipment owned by another party on |
|
|
the premises of a certificated local exchange company. |
|
|
SECTION 12. Section 481.159(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) If a district court orders the forfeiture of a |
|
|
controlled substance property or plant under Chapter 59A [59], Code |
|
|
of Criminal Procedure, or under this code, the court shall also |
|
|
order a law enforcement agency to: |
|
|
(1) retain the property or plant for its official |
|
|
purposes, including use in the investigation of offenses under this |
|
|
code; |
|
|
(2) deliver the property or plant to a government |
|
|
agency for official purposes; |
|
|
(3) deliver the property or plant to a person |
|
|
authorized by the court to receive it; |
|
|
(4) deliver the property or plant to a person |
|
|
authorized by the director to receive it for a purpose described by |
|
|
Section 481.065(a); or |
|
|
(5) destroy the property or plant that is not |
|
|
otherwise disposed of in the manner prescribed by this subchapter. |
|
|
SECTION 13. Section 481.160(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) If a controlled substance property or plant is forfeited |
|
|
under this code or under Chapter 59A [59], Code of Criminal |
|
|
Procedure, the law enforcement agency that seized the property or |
|
|
plant or to which the property or plant is forfeited may summarily |
|
|
destroy the property or plant without a court order before the |
|
|
disposition of a case arising out of the forfeiture if the agency |
|
|
ensures that: |
|
|
(1) at least five random and representative samples |
|
|
are taken from the total amount of the property or plant and a |
|
|
sufficient quantity is preserved to provide for discovery by |
|
|
parties entitled to discovery; |
|
|
(2) photographs are taken that reasonably depict the |
|
|
total amount of the property or plant; and |
|
|
(3) the gross weight or liquid measure of the property |
|
|
or plant is determined, either by actually weighing or measuring |
|
|
the property or plant or by estimating its weight or measurement |
|
|
after making dimensional measurements of the total amount seized. |
|
|
SECTION 14. Section 113.008(g), Local Government Code, is |
|
|
amended to read as follows: |
|
|
(g) Subsections (b-1) and (f)(2) do not apply to a special |
|
|
fund administered by an attorney representing the state under |
|
|
Chapter 18 or [,] 47, [or 59,] Code of Criminal Procedure. |
|
|
SECTION 15. Section 1701.253(g), Occupations Code, is |
|
|
amended to read as follows: |
|
|
(g) As part of the minimum curriculum requirements, the |
|
|
commission shall establish a statewide comprehensive education and |
|
|
training program on criminal asset forfeiture under Chapter 59A |
|
|
[59], Code of Criminal Procedure, for officers licensed under this |
|
|
chapter. An officer shall complete a program established under |
|
|
this subsection not later than the second anniversary of the date |
|
|
the officer is licensed under this chapter or the date the officer |
|
|
applies for an intermediate proficiency certificate, whichever |
|
|
date is earlier. |
|
|
SECTION 16. Section 37.08(b), Penal Code, is amended to |
|
|
read as follows: |
|
|
(b) In this section, "law enforcement agency" means an |
|
|
agency of the state or an agency of a political subdivision of the |
|
|
state authorized by law to employ peace officers [has the meaning
|
|
|
assigned by Article 59.01, Code of Criminal Procedure]. |
|
|
SECTION 17. Section 38.152(c)(3), Penal Code, is amended to |
|
|
read as follows: |
|
|
(3) "Law enforcement agency" means an agency of the |
|
|
state or an agency of a political subdivision of the state |
|
|
authorized by law to employ peace officers [has the meaning
|
|
|
assigned by Article 59.01, Code of Criminal Procedure]. |
|
|
SECTION 18. Section 159.205(a), Tax Code, is amended to |
|
|
read as follows: |
|
|
(a) The right of the comptroller to collect the tax imposed |
|
|
by this chapter, including applicable penalty and interest, is |
|
|
subordinate to the right of a federal, state, or local law |
|
|
enforcement authority to seize, forfeit, and retain property under |
|
|
Chapter 481, Health and Safety Code; Chapter 59A [59], Code of |
|
|
Criminal Procedure; or any other criminal forfeiture law of this |
|
|
state or of the United States. A lien filed by the comptroller as a |
|
|
result of the failure of a dealer to pay the tax, penalty, or |
|
|
interest due under this chapter is also subordinate to those |
|
|
rights. |
|
|
SECTION 19. The following provisions are repealed: |
|
|
(1) Section 140.004(h), Civil Practice and Remedies |
|
|
Code, as added by Chapter 1066 (H.B. 3241), Acts of the 83rd |
|
|
Legislature, Regular Session, 2013; |
|
|
(2) Article 18.17, Code of Criminal Procedure; |
|
|
(3) Chapter 59, Code of Criminal Procedure; |
|
|
(4) Sections 24.377(c) and 54.656(b), Government |
|
|
Code; |
|
|
(5) Section 365.012(i), Health and Safety Code; and |
|
|
(6) Sections 12.101(1) and (2) and Section 12.1106, |
|
|
Parks and Wildlife Code. |
|
|
SECTION 20. (a) Except as provided by Subsection (b) of |
|
|
this section, on the effective date of this Act, any property in the |
|
|
possession of a law enforcement agency, game warden, or attorney |
|
|
representing the state, that was seized under Chapter 59, Code of |
|
|
Criminal Procedure, or Section 12.1106, Parks and Wildlife Code, |
|
|
and that has not been ordered forfeited to the state by a court, |
|
|
must be returned to the person from whom the property was seized. |
|
|
(b) Property that is evidence in the investigation or |
|
|
prosecution of a criminal offense is not required to be returned |
|
|
under Subsection (a) of this section until the disposition of all |
|
|
charges relating to the offense. |
|
|
SECTION 21. The repeal by this Act of Article 18.17, Code of |
|
|
Criminal Procedure, does not apply to abandoned or unclaimed |
|
|
property seized before the effective date of this Act, and the |
|
|
former Article 18.17 is continued in effect for the purposes of the |
|
|
disposition of property described by this section. |
|
|
SECTION 22. This Act takes effect immediately if it |
|
|
receives a vote of two-thirds of all the members elected to each |
|
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
|
If this Act does not receive the vote necessary for immediate |
|
|
effect, this Act takes effect September 1, 2015. |