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SENATE FLOOR VERSION
March 31, 2021
COMMITTEE SUBSTITUTE
FOR ENGROSSED
HOUSE BILL NO. 2225 By: Moore of the House
and
Weaver of the Senate
An Act relating to cities and towns; amending 1 1 O.S.
2011, Section 34-104, as amended by Sect ion 1,
Chapter 166, O.S.L. 2012 (11 O.S. Supp. 20 20, Section
34-104), which relates to disposition of property or
money; modifying process for disposing of certain
property or money; specifying certain notice is
required; determining whether property was s eized in
connection to criminal investigation; specifying
entity that shall file certain application; modifying
required hearing timeline; modifying certain notice
requirements; specifying entity to dispose of
property; clarifying process involving sale or
donation to third parties; authorizing transfer of
certain currency; directing certain processes for
disposition of property under other circumstances;
authorizing certain notice; providing notice not
required for property of certain value; providing
that notice is effective under certain circumstances;
amending 22 O.S. 2011, Section s 1321, 1322 and 1326,
which relate to the return of stolen property or
money taken from defendants; clarifying hearing
procedures for returning property to lawful owners;
providing option of filing affidavits with the court
clerk; requiring notices be sent by first -class mail;
specifying when hearings shall be held; requiring the
filing of proof of service or publication with the
court clerk; extending time by which property sh all
be made available for release; directing prope rty
owners to provide proof of title to property;
requiring claimants to sign indemnification agreement
under certain circumstances; requiring filing of
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affidavits of service or publication with the court
clerk; extending date by which objections must be
filed; authorizing retention of evidence or exhibits
pending the outcome of actions for post conviction
relief; authorizing government entities to seek a
hearing regarding disposition of property;
establishing hearing requirements; providing for the
destruction of property under certain circumstances;
extending time limitation for making property
available to owners; providing gender -neutral
language; clarifying p rocedures for providing
receipts to defendants when money or other property
is seized; and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 11 O.S. 2011, Section 34-104, as
amended by Section 1, Chapter 166, O.S.L. 2012 (11 O.S. Supp. 2020,
Section 34-104), is amended to rea d as follows:
Section 34-104. A. Any chief of police or designee is
authorized to dispose of person al property or money or legal tender
as provided in this section or the charter ordinances of the
municipality, which has come into the possession of the chief of
police in any manner department of the municipality if:
1. The owner of the personal propert y or money or legal tender
is unknown or has not claimed the property after any required
notice;
2. The property or money or legal tender has been in the
custody of the chief of police for at least ninety (90) days; and
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3. The property or money or legal tender or any part thereof is
no longer needed to be held as evidence or for any other p urpose in
connection with any litigation. In the event the propert y, money or
legal tender was seized by the police department in connection with
a criminal investigat ion or arrest, this determination shall b e made
by the court which has jurisdiction over the criminal offense, if an
information or indictment is pending, pursuant to Section 1321 of
Title 22 of the Oklahoma Statutes, or by a prosecuting authority if
charges have been disposed of or have been dec lined.
B. The chief of police shall municipality may file an
application in the district court in which the situs of government
of the municipality is located requesting the authority of the court
to conduct a sale of the personal property which has a fair market
value of more than its face value . The chief of police shall attach
to the application shall contain a list describing the property
including any identifying numbers and marks , the date the property
came into the possession of the chief of police municipality, and
the name of the owner and th e person in last possession, if
different, and the address of the p erson, if known. The court shall
set the application for hearing not less than ten (10) fifteen (15)
days nor more than twenty (20) days after filing of the application.
C. In any instance where the property has an actual or apparent
value of more than T wo Hundred Fifty Dollars ($250.00), at least ten
(10) eleven (11) days prior to the date of the heari ng, written
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notice of the hearing shall b e sent by first-class mail, postage
prepaid, to each owner and person last in possession of the property
at the address as listed in the application. If the owner of any
property with an actual or apparent value ex ceeding Five Hundred
Dollars ($500.00) is unable to be served written notice by first -
class mail, notice shall be provided by one publication at least
three (3) days prior to the hearing in a newspaper of general
circulation in the county where the propert y is in custody. The
notice shall contain a brief description of the property of the
owner and the place and date of the hearing and a description of the
property, or the location of a list available for review during
business hours in which the property is described and any known
owner identified. The notice shall be posted at the assigned place
for the posting of municipal notices, and at two other publi c places
in the municipality.
D. If no owner appears and establishes ownership to the
property at the hearing, the court shall enter an order authorizing
the chief of police municipality to dispose of the property as
follows:
1. Donate the property havin g value of less than Five Hundred
Dollars ($500.00) to a not -for-profit corporation as defined in
Title 18 of the Oklahoma Statutes for use by needy families;
2. Sell the personal property for cash to the highest bidder,
after at least five (5) days ' notice of the sale has been published;
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3. Transfer the property to a third -party agent under contract
with the governing body of the chief of pol ice municipality for sale
by Internet or other electronic means, regardless of whether the
sale structure or distr ibution site is within the State of Oklahoma;
or
4. By any other means as determined appropriate by the court,
including but not limited to, destruction.
Regardless of If the means of disposition involve a sale or
donation to the third party , the chief of police or designee shall
make a return of the donation or sale and the order of the court
confirming the donation or sale shall vest title to the property in
the recipient or purchaser. A fter payment of court costs and other
expenses, the remainder of mo ney received from the sale of the
personal property shall be deposited in the municipal general fund.
E. All money or legal tender which has come into the possession
of the chief of police municipality pursuant to the circumstances
provided for in subsect ion A of this section shall be transferred by
the chief of police or designee to the municipal clerk or municipal
treasurer for deposit in the municipal general fund. Prior to any
transfer, the chief of police municipality shall file an application
in the district court requesting the court to enter an order
authorizing the chief of police or designee to transfer the money
for deposit in the mu nicipal general fund. The application shall
describe the money or legal tender, the date the same came into the
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possession of the chief of police department, and the name of the
owner and the address of the owner, if known. Upon filing the
application which may be joined with an application as descri bed in
subsection B of this section, a hearing shall be set not les s than
ten (10) days nor more than twenty (20) fifteen (15) days from the
filing of the application. Notice of the hearing shall be given as
provided for in subsection C of this section. The notice shall
state that upon failure of anyone to appear to pro ve ownership to
the money or legal tender, the court shall order the same to be
deposited in the muni cipal general fund. The notice may be co mbined
with a notice to sell personal property as provided for in
subsection B of this section. If no one appears to claim and prove
ownership to the money or legal tender at the hearing, the court
shall order the same to be transferred to the municipal g eneral fund
as provided in this subsection.
Notwithstanding any other provision of this section, if
authorized by ordinance, the municipality may transfer any c urrency
received into a deposito ry account for the bene fit of its known or
unknown owners prior to any court order for disposition of the money
or legal tender.
F. The Except as provided in this subsection, th e provisions of
this section shall not apply to any dangerous or deadly weapons,
narcotic or poisonou s drugs, explosives, or any property of a ny kind
or character, which the possession of which is prohibited by law.
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By order of the trial court, any proper ty filed as an exhibit or
held by the municipality as evidence or as contraband shall be
destroyed or sold or disposed of, pursuant to the con ditions
prescribed in the order. To the extent the provisions of this
section do not apply, the court shall follo w the procedures in
Section 1321 of Title 22 of the Oklahoma Statutes. No forfeiture
proceeding shall be necessary to authorize the destructi on of
property that cannot be returned lawfully to its owner.
G. The municipality is hereby authorized to establi sh a
procedure for the registration of "lost and found" property. The
procedure shall give the finde r of any property the option of
relinquishing any future claim to found property at the time its
possession is surrendered to the police or other agent of the
municipality, or of retaining possession of the property after
registering its description and th e finders finder's identity with
the police department or other agent of the municipalit y. Only The
municipality may require that only property in which the finder
relinquishes any future claim to its ownership will be stored in
municipal police property rooms.
H. The municipality may provide b y ordinance that a percentage
of the money or legal tender deposited in the municipal general fund
as provided in subsection D or E of this section may be paid as a
finders finder's fee for services rendered to any person who found
the unclaimed personal p roperty or money or legal tender and
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delivered it to, or registered it with, the chief of police or other
agent of the municipality.
I. The municipality may provide written notice at the time of
arrest or detention that certain property is available for r eturn
within ninety (90) days, if the property was not seized as evidence.
If the property is or appears to be wor th less than Two Hundred
Fifty Dollars ($250.00), no further notice is required prior to
obtaining a court order for disposition of the prope rty in
accordance with this section. A notice left with a detainee's
personal property at the detention facility s hall be presumed to
have been returned to the detainee at the time of his or her release
and shall satisfy the officer's obligation to delive r a receipt to
the detainee in connection with an arrest for a public offense.
SECTION 2. AMENDATORY 22 O.S. 2011, Section 1321, is
amended to read as follows:
Section 1321. A. It is the intent of the Legislature that any
stolen or embezzled money or other property held in custody of a
municipality, county or the state in any criminal investigation,
action or proceeding be returned to the proper person or its lawful
owner without unnecessary delay.
B. If the property coming into the custody of a municipal,
county or state peace officer is not alleged to have been stolen or
embezzled, the peace officer may return the property to the owner
upon satisfactory proof of ownership. The not ice and hearing
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provisions of this section shal l not be required for return of the
property specified in this section if there is no dispute concerning
the ownership of the property. Within fifteen (15) days of the time
the owner of the property is known, the peace officer shall notify
the owner of the property that the property is in the custody of the
peace officer. The property shall be returned to the owner upon
request, unless the owner, by law , is not permitted to possess such
property.
C. Except as otherwise provided for property that is pawne d,
when money or property alleged to have been stolen or embezzled,
comes into the custody of a peace officer, the peace officer shall
hold it subject to the order of the magistrate authorized by Section
1322 of this title to direct the disposal thereof. Within fifteen
(15) days of the time the owner of the property is known, the peace
officer shall notify the owner of the property that the property is
in the custody of the peace officer. The peace officer shall make a
good faith effort to locate and noti fy the owner of the property.
If the peace officer has made a good faith effort to locate and
notify the owner of the property and has been unable to lo cate or
notify the owner, the peace officer shall rel ease the property to
the last person in possession of the property within fifteen (15)
days after the peace officer determines that an owner cannot be
located or notified, provided unless there is evidence that the
person who last had possession of the proper ty shows proof that the
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person is not a lawful possessor of the property. Such officer may
provide a copy of a nonownership affidavit to the defendant to sign
if the defendant is not claiming ownersh ip of the money or property
taken from the defendant and if the defendant has reli nquished the
right to remain silent. The affidavit is not admissibl e in any
proceeding to ascertain the guilt or innocence of the defendant. A
copy of this affidavit shall be provided to the defendant, and a
copy shall may be filed by the peace officer with the court clerk.
Upon request, a copy of this affidavit shall b e provided to any
person claiming ownership of such money or property. The owner of
the property or desig nated representative of the owner may make
application to the magistrate for the retur n of the property. The
application shall be on a form provided by the Administrative
Director of the Courts and made available through the court clerk or
the victim-witness coordinator. The court may charge the applicant
a reasonable fee to defray the co st of filing and docketing the
application. Once an application has been made and notice provided,
the magistrate shall docket the application for a hearing as
provided in this section. Where notice by publication is
appropriate, the publication notice f orm shall be provided free of
charge to the applicant by the Adm inistrative Director of the Courts
through the court clerk or the victim -witness coordinator with
instructions on how to obtain effective publication notice. The
applicant shall notify the la st person in possession of the property
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prior to the property be ing seized by the state of the hearing by
mailing a copy of the notice by certified mail return receipt
requested at the last-known address of the person, unless the person
has signed a nonownership affidavit pursuant to this section
disclaiming any owners hip rights to the property. If the last
person in possession of the property is unable to be served notic e
by certified mail, notice shall be provided by first-class mail and
by one publication in a newspaper of general circulation in the
county where the property is held in custody. The applicant shall
notify the district attorney and the court when notice has been
served to the last person in possession of the property or published
pursuant to this section. The hearing shall be held not less than
ten (10) days or more than twenty (20) fifteen (15) days after the
court has been notified that the notice has been served or
published. Proof of service or publicati on shall be filed with the
court clerk before the hearing. For the sole purpose of conducting
a due process hearing to establish ownership of the property,
"magistrate" as used in this section shall mean a judge of the
district court, associate district j udge, special judge or the judge
of a municipal criminal court of record when established purs uant to
Section 28-101 et seq. of Title 11 of the Oklahoma Sta tutes.
D. If the magistrate determines that the property is needed as
evidence, the magistrate shal l determine ownership or right of
possession and determine the procedure and time frame for fu ture
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release. The magistrate may order the release of property needed as
evidence pursuant to Section 132 7 of this title, provided however,
the order may require the owner to present the property at trial.
The property shall be made available to the owne r within ten (10)
twenty (20) days of the court order for release. The magistrate may
authorize ten (10) days additional time for the return of the
exhibit if the district attorney shows cause that additional time is
needed to photograph or mark the exhib it.
E. If the property is not needed as evidence, it may be
released by the magistrate to the ow ner or designated representative
of the owner upon satisfactory p roof of ownership or to the person
last in possession prior to seizure. The owner of the prop erty or
designated representative of the owner may make application to the
magistrate for the return of th e property. The owner shall provide
satisfactory proof of title to the property or sign an affidavit o f
ownership if documents of title do not exist. If an affidavit of
ownership or affidavit of right of possession is used to establish
ownership or right of possession, the claiman t may also be required
to sign an agreement to indemnify and defend the custodians of the
property in the event of an adver se claim to the property. The
applicant shall notify the last person in possession of the property
prior to such property being seized by the state of the hearing by
mailing a copy of the notice by certified mail return receipt
requested at the last -known address of the person, unless the person
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has signed a nonownership affidavit pursuant to this section
disclaiming any ownership rights to the property. If the la st
person in possession of the property is una ble to be served notice
by certified mail, noti ce shall be provided by one publication in a
newspaper of general circulation in the county where the prope rty is
held in custody. The applicant shall notify the district attorney
and the court when notice ha s been served to the last person in
possession of the property or published pursuant to this section.
The hearing shall be held not less than ten (10) fifteen (15) days
or more than twenty (20) days after the court has been notified that
the notice has been served or published. An affidavit of service or
publication shall be filed with the court prior to the hearing.
F. The notice and hearing provisions of subsections C and E of
this section shall not be requ ired for return of the property
specified in said subsections if:
1. There is no dispute con cerning the ownership of the
property;
2. The property is readily identifiable by the owner; and
3. The defendant has entered a plea of guilty or nolo
contendere to the criminal charge, has executed a nonown ership
affidavit as provided by subsection C of this section or has been
personally notified that the property will be returned to the owner
and has failed to file an objection to such return within ten (10)
eleven (11) days of being notified. The owner s hall provide
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satisfactory proof of title to the property or sign an affidavit of
ownership or right of possession to be provided by the peace
officer. If an affidavit of ownership or affidavit of right of
possession is used to establish ownership or right of possession,
the claimant may also be requir ed to sign an agreement to indemnify
and defend the custodians of the p roperty in the event of an adverse
claim to the property. The affidavit is not admissible i n any
proceeding to ascertain the guilt or inn ocence of the defendant. A
copy of this affidavit shall be filed by the officer with the court
clerk. The property shall then be returned to the owner or person
with right of possession.
G. When property alle ged to have been stolen comes into the
custody of a peace officer and the property is deemed to be
perishable, the peace officer shall take such action as appropriate
to temporarily preserve the prope rty. However, within seventy -two
(72) hours of the time the property was recovered, the receiving
agency shall make application for a disposition h earing before a
magistrate, and the receiving agency shall notify by first-class
mail all persons known to h ave an interest in the property of the
date, time and place of the hearing.
H. In any case, the magi strate may, for good cause shown, order
any evidence or exhibit to be retained pending the outcome of any
appeal or action for post-conviction relief.
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I. Any time property comes into the custody of a municipali ty,
a county, or this state as a result of an y contact with any peace
officer, criminal inve stigation or other situation where the return
of the property is prohibited by any municipal, state or feder al law
or when the property has disputed ownership or mu ltiple claimants,
the municipality, county or state shall advise the claimant to file
an application with the appropriate district court. Upon filing an
application for a hearing, the claimant shall provide notice by
first-class mail to all interested per sons including the government
entity having custody of the property . The government entity having
custody of the property may also seek a hearing regarding the
disposition of the property. The hea ring shall be scheduled not
less than fifteen (15 ) days after the notice is mailed. Unless the
property is being held in connection with a filed crim inal charge,
the proceeding shall be consider ed a civil matter and sh all be filed
in the county where the p roperty is being held. If a criminal
charge has been filed, the matter shall be heard by the judge who
has been assigned to the criminal case . At the hearing the court
shall make a judicial determination as to the proper and lawful
release or other disposition of the property. If the property at
issue is a firearm or other weapon, the court may order th e property
destroyed if the court determine s that the owner of the firearm or
weapon is mentally or emotionally unstable or disturbed or cannot
legally possess the firearm or weapon.
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J. The application, notice and hearing provisions of subsection
I of this section shall include, but are not limited to , all
situations where the peace officer has reason to believe:
1. One of the persons asserting a right to the return of any
firearm or other weapon is or was ment ally or emotionally un stable
or disturbed at the time the weapon was placed in custody or at the
time of the request for the return of the weapon;
2. One of the persons asserting a right to the retur n of a
firearm or other weapon is subject to a victim pr otection order that
would preclude the return of any weapon as a matter of law;
3. One of the persons asserting a right to the return of any
firearm or other weapon is under indictment or has been co nvicted of
a felony;
4. One of the persons asserting a right to the return of any
firearm or other weapon has a misdemeanor conviction for domestic
abuse as defined by law;
5. The ownership of the property is unclear due to multiple
claimants or disputes among heirs or next of kin for the property of
the deceased; or
6. The return of the property could subject the municipality,
the county, or this state to potential liability for its return.
SECTION 3. AMENDATORY 22 O.S. 2011, Section 1322, is
amended to read as follows:
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Section 1322. On satisfactory proof of title to the prop erty,
the magistrate before whom the informatio n is laid, or who examines
the charge against the person accused of stealing or embezzling the
property, may order it to be delivered to the owner on his paying
the reasonable and necessary expenses incurred i n its preservation,
to be certified by the magi strate. The order entitles the owner to
demand and receive the property. Such property shall be mad e
available to the owner within ten (10) twenty (20) days of the
issuance of the order. The court, however, may keep the property as
evidence or on the is suance of an order, require the owner to
present such property at trial.
SECTION 4. AMENDATORY 22 O.S. 2011, Section 1326, is
amended to read as follows:
Section 1326. When money or other property is taken from a
defendant arrested upon a charge of public offense, the officer
taking it must at the time give duplicate receipts therefor,
specifying particularly the am ount of money or the kind of property
taken. One of which receipts he the officer must deliver to the
defendant or to the detention officer holding the detainee 's
personal property, and the other of which he the officer must file
with the clerk of the court to which the depositions and statement
must be sent, as provided in the last section of th e chapter on
preliminary examination, 6641 officer's chief law enforcement
officer or designee.
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SECTION 5. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON GENERAL GOVERNMENT
March 31, 2021 - DO PASS AS AMENDED