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  By: Whitmire, Hinojosa S.B. No. 316
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to criminal asset forfeiture, the disposition of proceeds
  and property from criminal asset forfeiture, and accountability for
  that disposition; providing civil penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 59.03, Code of Criminal Procedure, is
  amended by amending Subsection (d) and adding Subsection (e) to
  read as follows:
         (d)  A person in the possession of property at the time a
  peace officer seizes the property under this chapter may at the time
  of seizure assert the person's interest in or right to the property.
  A peace officer, including the peace officer who seizes the
  property, [under this chapter] may not [at the time of seizure]
  request, require, or in any manner induce any person, including a
  person who asserts an interest in or right to the property [seized],
  to execute a document purporting to waive the person's interest in
  or rights to [the] property seized under this chapter.
         (e)  At any time before notice is filed under Article
  59.04(b), an attorney representing the state may not request,
  require, or in any manner induce any person, including a person who
  asserts an interest in or right to property seized under this
  chapter, to execute a document purporting to waive the person's
  interest in or rights to the property.
         SECTION 2.  Article 59.06, Code of Criminal Procedure, is
  amended by adding Subsections (c-2), (d-1), and (d-2) and amending
  Subsections (d) and (g) to read as follows:
         (c-2)  Any postjudgment interest from money, securities,
  negotiable instruments, stocks or bonds, or things of value, or
  proceeds from the sale of those items, that are deposited in an
  interest-bearing bank account under Subsection (c) shall be used
  for the same purpose as the principal.
         (d)  Proceeds awarded under this chapter to a law enforcement
  agency or to the attorney representing the state may be spent by the
  agency or the attorney after a budget for the expenditure of the
  proceeds has been submitted to the commissioners court or governing
  body of the municipality. The budget must be detailed and clearly
  list and define the categories of expenditures, but may not list
  details that would endanger the security of an investigation or
  prosecution. Expenditures are subject to the audit and enforcement
  provisions established under this chapter [article]. A
  commissioners court or governing body of a municipality may not use
  the existence of an award to offset or decrease total salaries,
  expenses, and allowances that the agency or the attorney receives
  from the commissioners court or governing body at or after the time
  the proceeds are awarded.
         (d-1)  The head of a law enforcement [the] agency or an 
  attorney representing the state may not use proceeds or property
  received under this chapter to:
               (1)  contribute to a political campaign;
               (2)  make a donation to any entity, except as provided
  by Subsection (d-2);
               (3)  pay expenses related to the training or education
  of any member of the judiciary;
               (4)  pay any travel expenses related to attendance at
  training or education seminars if the expenses violate generally
  applicable restrictions established by the commissioners court or
  governing body of the municipality, as applicable;
               (5)  purchase alcoholic beverages;
               (6)  make any expenditure not approved by the
  commissioners court or governing body of the municipality, as
  applicable, if the head of a law enforcement agency or attorney
  representing the state holds an elective office and:
                     (A)  the deadline for filing an application for a
  place on the ballot as a candidate for reelection to that office in
  the general primary election has passed and the person did not file
  an application for a place on that ballot; or
                     (B)  during the person's current term of office,
  the person was a candidate in a primary, general, or runoff election
  for reelection to that office and was not the prevailing candidate
  in that election; or
               (7)  [the existence of an award to] increase a salary,
  expense, or allowance for an employee of the law enforcement agency
  or attorney representing the state [or agency] who is budgeted by
  the commissioners court or governing body of the municipality
  unless the commissioners court or governing body first approves the
  increase [expenditure].
         (d-2)  The head of a law enforcement agency or an attorney
  representing the state may use as an official purpose of the agency
  or attorney proceeds or property received under this chapter to
  make a donation to an entity that assists in:
               (1)  the detection, investigation, or prosecution of:
                     (A)  criminal offenses; or
                     (B)  instances of abuse, as defined by Section
  261.001, Family Code;
               (2)  the provision of:
                     (A)  mental health, drug, or rehabilitation
  services; or
                     (B)  services for victims or witnesses of criminal
  offenses or instances of abuse described by Subdivision (1); or
               (3)  the provision of training or education related to
  duties or services described by Subdivision (1) or (2).
         (g)(1)  All law enforcement agencies and attorneys
  representing the state who receive proceeds or property under this
  chapter shall account for the seizure, forfeiture, receipt, and
  specific expenditure of all the [such] proceeds and property in an
  audit, which is to be performed annually by the commissioners court
  or governing body of a municipality, as appropriate.  The annual
  period of the audit for a law enforcement agency is the fiscal year
  of the appropriate county or municipality and the annual period for
  an attorney representing the state is the state fiscal year.  The
  audit must [shall] be completed on a form provided by the attorney
  general and must include a detailed report and explanation of all
  expenditures, including salaries and overtime pay, officer
  training, investigative equipment and supplies, and other items.  
  Certified copies of the audit shall be delivered by the law
  enforcement agency or attorney representing the state to [the
  comptroller's office and] the attorney general not later than the
  60th day after the date on which the annual period that is the
  subject of the audit ends.
               (2)  If a copy of the audit is not delivered to the
  attorney general within the period required by Subdivision (1),
  within five days after the end of the period the attorney general
  shall notify the law enforcement agency or the attorney
  representing the state of that fact.  On a showing of good cause,
  the attorney general may grant an extension permitting the agency
  or attorney to deliver a copy of the audit after the period required
  by Subdivision (1) and before the 76th day after the date on which
  the annual period that is the subject of the audit ends.  If the law
  enforcement agency or the attorney representing the state fails to
  establish good cause for not delivering the copy of the audit within
  the period required by Subdivision (1) or fails to deliver a copy of
  an audit within the extension period, the attorney general shall
  notify the comptroller of that fact.
               (3)  On notice under Subdivision (2) [this
  subdivision], the comptroller shall perform the audit otherwise
  required by Subdivision (1).  At the conclusion of the audit, the
  comptroller shall forward a copy of the audit to the attorney
  general.  The law enforcement agency or attorney representing the
  state is liable to the comptroller for the costs of the comptroller
  in performing the audit.
         SECTION 3.  Chapter 59, Code of Criminal Procedure, is
  amended by adding Articles 59.061 and 59.062 to read as follows:
         Art. 59.061.  AUDITS AND INVESTIGATIONS. (a)  The state
  auditor may at any time perform an audit or conduct an
  investigation, in accordance with this article and Chapter 321,
  Government Code, related to the seizure, forfeiture, receipt, and
  specific expenditure of proceeds and property received under this
  chapter.
         (b)  The state auditor is entitled at any time to access any
  book, account, voucher, confidential or nonconfidential report, or
  other record of information, including electronic data, maintained
  under Article 59.06, except that if the release of the applicable
  information is restricted under state or federal law, the state
  auditor may access the information only with the approval of a court
  or federal administrative agency, as appropriate.
         (c)  If the results of an audit or investigation under this
  article indicate that a law enforcement agency or attorney
  representing the state has knowingly violated or is knowingly
  violating a provision of this chapter relating to the disposition
  of proceeds or property received under this chapter, the state
  auditor shall promptly notify the attorney general for the purpose
  of initiating appropriate enforcement proceedings under Article
  59.062.
         Art. 59.062.  ENFORCEMENT. (a)  In the name of the state,
  the attorney general may institute in a district court in Travis
  County or in a county served by the law enforcement agency or
  attorney representing the state, as applicable, a suit for
  injunctive relief, to recover a civil penalty, or for both
  injunctive relief and a civil penalty if the results of an audit or
  investigation under Article 59.061 indicate that the law
  enforcement agency or attorney representing the state has knowingly
  violated or is knowingly violating a provision of this chapter
  relating to the disposition of proceeds or property received under
  this chapter.
         (b)  On application for injunctive relief and a finding that
  the law enforcement agency or attorney representing the state is
  knowingly violating a provision of this chapter relating to the
  disposition of proceeds or property received under this chapter,
  the district court shall grant the injunctive relief the facts may
  warrant, without requirement for bond.
         (c)  A law enforcement agency or attorney representing the
  state who knowingly commits a violation described by Subsection (a)
  is liable to the state for a civil penalty in an amount not to exceed
  $100,000 as determined by the district court to be appropriate for
  the nature and seriousness of the violation. In determining an
  appropriate penalty for the violation, the court shall consider:
               (1)  any previous violations committed by the agency or
  attorney;
               (2)  the seriousness of the violation, including the
  nature, circumstances, extent, and gravity of the violation;
               (3)  the demonstrated good faith of the agency or
  attorney; and
               (4)  the amount necessary to deter future violations.
         (d)  If the attorney general brings a suit under this article
  and an injunction is granted or a civil penalty is imposed, the
  attorney general may recover reasonable expenses, court costs,
  investigative costs, and attorney's fees.
         (e)  Notwithstanding any other provision of this article, a
  law enforcement agency or attorney representing the state ordered
  to pay a civil penalty, expense, cost, or fee under this article
  shall make the payment out of money available in any fund
  established by the agency or attorney, as applicable, for the
  purpose of administering proceeds or property received under this
  chapter. If sufficient money is not available to make payment in
  full at the time the court enters an order requiring payment, the
  agency or attorney shall continue to make payments out of money
  available in any fund described by this subsection until the
  payment is made in full.
         (f)  A civil penalty collected under this article shall be
  deposited to the credit of the drug court account in the general
  revenue fund to help fund drug court programs established under
  Chapter 469, Health and Safety Code.
         (g)  A law enforcement agency or attorney representing the
  state is immune from liability under this article if the agency or
  attorney reasonably relied on:
               (1)  the advice, consent, or approval of an entity that
  conducts an audit of the agency or attorney under this chapter; or
               (2)  a written opinion of the attorney general relating
  to:
                     (A)  the statute or other provision of law the
  agency or attorney is alleged to have knowingly violated; or
                     (B)  a fact situation that is substantially
  similar to the fact situation in which the agency or attorney is
  involved.
         SECTION 4.  The changes in law made by this Act in amending
  Article 59.03, Code of Criminal Procedure, apply only to property
  seized on or after the effective date of this Act. Property seized
  before the effective date of this Act is covered by the law in
  effect when the property was seized, and the former law is continued
  in effect for that purpose. For purposes of this section, property
  was seized before the effective date of this Act if any portion of
  the property was seized before that date.
         SECTION 5.  Except as provided by Section 6 of this Act, the
  changes in law made by this Act in amending Article 59.06, Code of
  Criminal Procedure, apply to the disposition or use, on or after the
  effective date of this Act, of proceeds or property received by a
  law enforcement agency or attorney representing the state under
  Chapter 59, Code of Criminal Procedure, regardless of whether the
  receipt of the proceeds or property occurred before, on, or after
  the effective date of this Act.
         SECTION 6.  The changes in law made by this Act in amending
  Subsection (g), Article 59.06, Code of Criminal Procedure, and
  adding Articles 59.061 and 59.062, Code of Criminal Procedure,
  apply to any audit performed on or after the effective date of this
  Act.
         SECTION 7.  This Act takes effect September 1, 2011.