Texas 2009 - 81st Regular

Texas House Bill HB1618 Compare Versions

Only one version of the bill is available at this time.

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1	1	2009S0138-2 02/05/09
2	2	By: Pena H.B. No. 1618
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the civil and criminal prosecution of racketeering;
8	8	providing penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Title 6, Civil Practice and Remedies Code, is
11	11	amended by adding Chapter 140 to read as follows:
12	12	CHAPTER 140. CIVIL RACKETEERING
13	13	Sec. 140.001. DEFINITIONS. In this chapter:
14	14	(1) "Acquire" means an act:
15	15	(A) to possess property;
16	16	(B) to prevent another person from using that
17	17	person's property or to dictate the terms of use of the property;
18	18	(C) to bring about or receive the transfer of any
19	19	interest in property, whether to oneself or to another person; or
20	20	(D) to secure performance of a service.
21	21	(2) "Enterprise" means a corporation, partnership,
22	22	association, labor union, or other legal entity, or any group of
23	23	persons associated in fact although not a legal entity.
24	24	(3) "Gain" means a benefit, an interest, or property
25	25	of any kind, without reduction for expenses incurred in acquiring
26	26	or maintaining the benefit, interest, or property or incurred for
27	27	any other reason.
28	28	(4) "Proceeds" means an interest in property of any
29	29	kind acquired or derived from, produced or realized through, or
30	30	caused by, directly or indirectly, an act or omission, and any
31	31	fruits of the interest, in whatever form.
32	32	(5) "Racketeering" or "racketeering offense" means an
33	33	act described by Section 140.002.
34	34	Sec. 140.002. CIVIL RACKETEERING. A person or enterprise
35	35	commits racketeering if, for financial gain, the person or
36	36	enterprise commits an offense described in the following list,
37	37	including any preparatory or completed offense, that is chargeable
38	38	or indictable under the laws of this state or another state, federal
39	39	law, the laws of a foreign country, or the Uniform Code of Military
40	40	Justice and that is punishable by imprisonment for more than one
41	41	year under the jurisdiction in which the violation occurred:
42	42	(1) criminal homicide as described by Chapter 19,
43	43	Penal Code;
44	44	(2) kidnapping or unlawful restraint as described by
45	45	Chapter 20, Penal Code;
46	46	(3) trafficking of persons as described by Chapter
47	47	20A, Penal Code;
48	48	(4) a sexual offense as described by Chapter 21, Penal
49	49	Code;
50	50	(5) an assaultive offense as described by Chapter 22,
51	51	Penal Code;
52	52	(6) arson, criminal mischief, or other property damage
53	53	or destruction as described by Chapter 28, Penal Code;
54	54	(7) robbery as described by Chapter 29, Penal Code;
55	55	(8) theft as described by Chapter 31, Penal Code;
56	56	(9) fraud as described by Chapter 32, Penal Code;
57	57	(10) a computer crime as described by Chapter 33,
58	58	Penal Code;
59	59	(11) money laundering as described by Chapter 34,
60	60	Penal Code;
61	61	(12) bribery and corrupt influence as described by
62	62	Chapter 36, Penal Code;
63	63	(13) prostitution or obscenity as described by Chapter
64	64	43, Penal Code;
65	65	(14) trafficking of explosive weapons, firearms, or
66	66	components of explosives as described by Chapter 46, Penal Code;
67	67	(15) gambling as described by Chapter 47, Penal Code;
68	68	(16) engaging in organized criminal activity as
69	69	described by Section 71.02, Penal Code;
70	70	(17) manufacture or delivery of a controlled substance
71	71	or dangerous drug as described by Chapter 481 or 483, Health and
72	72	Safety Code; and
73	73	(18) intentional or reckless fraud in the purchase or
74	74	sale of securities as described by The Securities Act (Article
75	75	581-1 et seq., Vernon's Texas Civil Statutes).
76	76	Sec. 140.003. SUIT TO ABATE RACKETEERING. (a) The
77	77	attorney general may bring suit in the name of the state against any
78	78	person or enterprise for racketeering under this chapter and may
79	79	seek to recover civil penalties, costs of suit, including
80	80	reasonable attorney's fees, and any appropriate injunctive relief.
81	81	(b) This chapter does not authorize suit by a person or
82	82	enterprise that sustains injury as a result of racketeering.
83	83	(c) A suit under this chapter must be brought in a district
84	84	court in a county in which all or part of the alleged racketeering
85	85	offense giving rise to the suit occurred, or in a district court in
86	86	Travis County.
87	87	Sec. 140.004. ACTION IN REM. (a) In addition to bringing
88	88	suit against a person or enterprise under Section 140.003, the
89	89	attorney general may pursue an in rem action under Chapter 59, Code
90	90	of Criminal Procedure, for forfeiture of:
91	91	(1) any property or interest in property acquired or
92	92	maintained by the person or enterprise in violation of Chapter 34A,
93	93	Penal Code, or Section 71.02(a)(14), Penal Code;
94	94	(2) any interest, security, claim, or any other form
95	95	of property, office, title, license, or contractual right that
96	96	affords a source of influence over any enterprise that conducted or
97	97	participated in conduct in violation of Chapter 34A, Penal Code, or
98	98	Section 71.02(a)(14), Penal Code; and
99	99	(3) all proceeds traceable to a racketeering offense
100	100	and all money, negotiable instruments, securities, and other
101	101	property used or intended to be used in any manner, or in any part,
102	102	to facilitate the commission of the offense.
103	103	(b) An in rem forfeiture action under this chapter must be
104	104	brought in a district court in a county in which all or part of the
105	105	alleged racketeering offense giving rise to the action occurred, or
106	106	in a district court in Travis County. This provision supersedes any
107	107	conflicting venue provision, including venue provisions under
108	108	Chapter 59, Code of Criminal Procedure.
109	109	Sec. 140.005. INJUNCTIVE RELIEF; OTHER REMEDIES. (a) A
110	110	court in which a proceeding is brought under this chapter may
111	111	prevent, restrain, and remedy racketeering by issuing appropriate
112	112	orders. The orders may include, but are not limited to, a temporary
113	113	restraining order, a temporary or permanent injunction, the
114	114	requirement of a satisfactory performance bond, the creation of a
115	115	receivership, and the enforcement of a constructive trust in
116	116	connection with any property or other interest, including property
117	117	or interest subject to seizure and forfeiture under Chapter 59,
118	118	Code of Criminal Procedure, or other remedies or restraints the
119	119	court considers proper.
120	120	(b) Following a final determination of liability under this
121	121	chapter, the court may issue an order that includes, but is not
122	122	limited to:
123	123	(1) requiring any person to divest any interest,
124	124	direct or indirect, in any enterprise;
125	125	(2) imposing reasonable restrictions on the future
126	126	activities or investments of any person that affect the laws of this
127	127	state, including prohibiting any person from engaging in the type
128	128	of endeavor or enterprise that gave rise to the racketeering
129	129	offense, to the extent the constitutions of the United States and
130	130	this state permit;
131	131	(3) requiring the dissolution or reorganization of any
132	132	enterprise involved in the suit;
133	133	(4) ordering the recovery of reasonable fees,
134	134	expenses, and costs incurred in obtaining injunctive relief or
135	135	civil remedies or in conducting investigations under this chapter,
136	136	including court costs, attorney's fees, witness fees, and
137	137	deposition fees;
138	138	(5) ordering payment to the general revenue fund of
139	139	the state treasury of an amount equal to:
140	140	(A) the gain acquired or maintained through
141	141	racketeering; or
142	142	(B) the amount for which any person is liable
143	143	under this chapter;
144	144	(6) ordering payment to the state of a civil penalty by
145	145	a person or enterprise found liable for racketeering, in an amount
146	146	not to exceed $250,000 for each separately alleged and proven
147	147	racketeering act; and
148	148	(7) ordering payment of damages to the state for
149	149	racketeering shown to have materially damaged the state.
150	150	(c) In determining the amount of a civil penalty ordered
151	151	under Subsection (b)(6), the court shall consider:
152	152	(1) the seriousness of the racketeering offense and
153	153	the consequent harm, financial or personal, to the state and to any
154	154	identified victim or victims; and
155	155	(2) the duration of the racketeering activity.
156	156	(d) In determining the amount of damages ordered under
157	157	Subsection (b)(7), the court shall consider:
158	158	(1) loss of tax revenue to the state;
159	159	(2) unpaid state unemployment taxes;
160	160	(3) unpaid state licensing and regulatory fees;
161	161	(4) medical and counseling costs incurred by the state
162	162	on behalf of any victim of the racketeering; and
163	163	(5) any other material damage caused to the state by
164	164	the racketeering.
165	165	(e) Remedies and awards ordered by a court under this
166	166	chapter, including costs and reasonable attorney's fees, may be
167	167	assessed against and paid from money or property awarded under a
168	168	forfeiture action under Chapter 59, Code of Criminal Procedure, or
169	169	against property alleged to have been contraband, as defined by
170	170	Article 59.01, Code of Criminal Procedure, from the underlying
171	171	activity.
172	172	(f) This chapter is not intended to provide the exclusive
173	173	remedy for unlawful activity addressed by this chapter. A
174	174	proceeding under this chapter may be in addition to or in the
175	175	alternative of any other action, civil or criminal, available under
176	176	the laws of this state.
177	177	Sec. 140.006. CONSTRUCTIVE TRUST. (a) A person or
178	178	enterprise that, through racketeering, acquires any property or
179	179	prevents another person from receiving property that by law is
180	180	required to be transferred or paid to that person is an involuntary
181	181	trustee. An involuntary trustee or any other person or enterprise,
182	182	except a bona fide purchaser for value as described under
183	183	Subsection (b), holds the property and its proceeds in constructive
184	184	trust for the benefit of persons entitled to remedies under this
185	185	chapter.
186	186	(b) A bona fide purchaser for value who was reasonably
187	187	without notice of unlawful conduct and who did not knowingly take
188	188	part in an illegal transaction is not an involuntary trustee under
189	189	Subsection (a) and is not subject to a constructive trust imposed
190	190	under this chapter.
191	191	Sec. 140.007. EVIDENCE. (a) In a proceeding under this
192	192	chapter, the state bears the burden of proof by a preponderance of
193	193	the evidence.
194	194	(b) A person convicted in a criminal proceeding is
195	195	precluded, in a proceeding under this chapter, from subsequently
196	196	denying the essential allegations of the criminal offense of which
197	197	the person was convicted. For purposes of this subsection, a
198	198	verdict or a plea, including a no contest plea, is considered a
199	199	conviction.
200	200	(c) An individual may not be held liable in damages or for
201	201	other relief under this chapter based on the conduct of another
202	202	unless the finder of fact, by a preponderance of the evidence, finds
203	203	that the individual authorized, requested, commanded, participated
204	204	in, ratified, or recklessly tolerated the unlawful conduct of the
205	205	other.
206	206	(d) An enterprise may not be held liable in damages or for
207	207	other relief under this chapter based on the conduct of an agent
208	208	unless the finder of fact, by a preponderance of the evidence, finds
209	209	that a director or high managerial agent performed, authorized,
210	210	requested, commanded, participated in, ratified, or recklessly
211	211	tolerated the unlawful conduct of the agent.
212	212	(e) A bank or savings and loan association insured by the
213	213	Federal Deposit Insurance Corporation or a credit union insured by
214	214	the National Credit Union Administration may not be held liable in
215	215	damages or for other relief under this chapter for conduct
216	216	proscribed by Chapter 34, Penal Code, based on acquiring or
217	217	maintaining an interest in or transporting, transacting,
218	218	transferring, or receiving funds belonging to a person other than
219	219	the person presenting the funds, unless the finder of fact, by a
220	220	preponderance of the evidence, finds that the person or agent
221	221	acquiring or maintaining an interest in or transporting,
222	222	transacting, transferring, or receiving the funds on behalf of
223	223	another did so knowing that the funds were the proceeds of an
224	224	offense and that a director or high managerial agent performed,
225	225	authorized, requested, commanded, participated in, ratified, or
226	226	recklessly tolerated the unlawful conduct of the person.
227	227	Sec. 140.008. LIMITATIONS PERIOD. No proceeding may be
228	228	commenced under this chapter unless the proceeding is filed not
229	229	later than seven years after actual discovery of the racketeering
230	230	offense. This provision supersedes any conflicting limitations
231	231	provision creating a shorter period.
232	232	Sec. 140.009. SPECIAL DOCKETING PROCEDURES. The attorney
233	233	general may file with the clerk of the district court in which a
234	234	proceeding is brought under this chapter a certificate stating that
235	235	the case is of special public importance. The clerk must
236	236	immediately furnish a copy of the certificate to the administrative
237	237	judge of the district court of the county in which the proceeding is
238	238	pending. On receiving the copy of the certificate, the
239	239	administrative judge shall immediately designate a judge to hear
240	240	and determine the proceeding. The designated judge shall promptly
241	241	assign the proceeding for hearing, participate in hearings, make
242	242	determinations, and cause the action to be expedited.
243	243	SECTION 2. Title 7, Penal Code, is amended by adding Chapter
244	244	34A to read as follows:
245	245	CHAPTER 34A. RACKETEERING
246	246	Sec. 34A.001. DEFINITIONS. In this chapter, "enterprise"
247	247	and "racketeering" have the meanings assigned by Section 140.001,
248	248	Civil Practice and Remedies Code.
249	249	Sec. 34A.002. ILLEGAL CONTROL OR CONDUCT OF ENTERPRISE.
250	250	(a) A person commits an offense if the person knowingly:
251	251	(1) through racketeering or its proceeds, acquires or
252	252	maintains, by investment or otherwise, control of an enterprise;
253	253	(2) is employed by or associated with an enterprise
254	254	and conducts any of the enterprise's affairs through racketeering;
255	255	(3) participates directly or indirectly in the conduct
256	256	of an enterprise that the person knows is being conducted, wholly or
257	257	partially, through racketeering; or
258	258	(4) hires, engages, or uses a minor for any conduct
259	259	preparatory to or in completion of an offense under Subdivision
260	260	(1), (2), or (3).
261	261	(b) An offense under Subsection (a)(1), (2), or (3) is a
262	262	felony of the third degree. An offense under Subsection (a)(4) is a
263	263	felony of the second degree.
264	264	SECTION 3. Subsection (a), Section 71.02, Penal Code, is
265	265	amended to read as follows:
266	266	(a) A person commits an offense if, with the intent to
267	267	establish, maintain, or participate in a combination or in the
268	268	profits of a combination or as a member of a criminal street gang,
269	269	the person [he] commits or conspires to commit one or more of the
270	270	following:
271	271	(1) murder, capital murder, arson, aggravated
272	272	robbery, robbery, burglary, theft, aggravated kidnapping,
273	273	kidnapping, aggravated assault, aggravated sexual assault, sexual
274	274	assault, forgery, deadly conduct, assault punishable as a Class A
275	275	misdemeanor, burglary of a motor vehicle, or unauthorized use of a
276	276	motor vehicle;
277	277	(2) any gambling offense punishable as a Class A
278	278	misdemeanor;
279	279	(3) promotion of prostitution, aggravated promotion
280	280	of prostitution, or compelling prostitution;
281	281	(4) unlawful manufacture, transportation, repair, or
282	282	sale of firearms or prohibited weapons;
283	283	(5) unlawful manufacture, delivery, dispensation, or
284	284	distribution of a controlled substance or dangerous drug, or
285	285	unlawful possession of a controlled substance or dangerous drug
286	286	through forgery, fraud, misrepresentation, or deception;
287	287	(6) any unlawful wholesale promotion or possession of
288	288	any obscene material or obscene device with the intent to wholesale
289	289	promote the same;
290	290	(7) any offense under Subchapter B, Chapter 43,
291	291	depicting or involving conduct by or directed toward a child
292	292	younger than 18 years of age;
293	293	(8) any felony offense under Chapter 32;
294	294	(9) any offense under Chapter 36;
295	295	(10) any offense under Chapter 34 or 35;
296	296	(11) any offense under Section 37.11(a);
297	297	(12) any offense under Chapter 20A; [or]
298	298	(13) any offense under Section 37.10; or
299	299	(14) any offense under Chapter 34A.
300	300	SECTION 4. Subdivision (1), Article 59.01, Code of Criminal
301	301	Procedure, is amended to read as follows:
302	302	(1) "Attorney representing the state" means the
303	303	prosecutor with felony jurisdiction in the county in which a
304	304	forfeiture proceeding is held under this chapter or, in a
305	305	proceeding for forfeiture of contraband as defined under
306	306	Subdivision (2)(B)(v) of this article, the city attorney of a
307	307	municipality if the property is seized in that municipality by a
308	308	peace officer employed by that municipality and the governing body
309	309	of the municipality has approved procedures for the city attorney
310	310	acting in a forfeiture proceeding. In a proceeding for forfeiture
311	311	of contraband as defined under Subdivision (2)(B)(vii) of this
312	312	article, the term includes the attorney general. In a proceeding
313	313	for forfeiture of contraband as defined under Subdivision (2)(A)(v)
314	314	or (vi) of this article, the term includes the attorney general if a
315	315	suit to abate racketeering has been instituted and maintained under
316	316	Chapter 140, Civil Practice and Remedies Code.
317	317	SECTION 5. Subdivision (2), Article 59.01, Code of Criminal
318	318	Procedure, as effective April 1, 2009, is amended to read as
319	319	follows:
320	320	(2) "Contraband" means property of any nature,
321	321	including real, personal, tangible, or intangible, that is:
322	322	(A) used in the commission of:
323	323	(i) any first or second degree felony under
324	324	the Penal Code;
325	325	(ii) any felony under Section 15.031(b),
326	326	20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30,
327	327	31, 32, 33, 33A, or 35, Penal Code;
328	328	(iii) any felony under The Securities Act
329	329	(Article 581-1 et seq., Vernon's Texas Civil Statutes); [or]
330	330	(iv) any offense under Chapter 49, Penal
331	331	Code, that is punishable as a felony of the third degree or state
332	332	jail felony, if the defendant has been previously convicted three
333	333	times of an offense under that chapter;
334	334	(v) any unlawful activity that constitutes
335	335	racketeering under Chapter 140, Civil Practice and Remedies Code;
336	336	or
337	337	(vi) any felony under Chapter 34A, Penal
338	338	Code;
339	339	(B) used or intended to be used in the commission
340	340	of:
341	341	(i) any felony under Chapter 481, Health
342	342	and Safety Code (Texas Controlled Substances Act);
343	343	(ii) any felony under Chapter 483, Health
344	344	and Safety Code;
345	345	(iii) a felony under Chapter 153, Finance
346	346	Code;
347	347	(iv) any felony under Chapter 34, Penal
348	348	Code;
349	349	(v) a Class A misdemeanor under Subchapter
350	350	B, Chapter 365, Health and Safety Code, if the defendant has been
351	351	previously convicted twice of an offense under that subchapter;
352	352	(vi) any felony under Chapter 152, Finance
353	353	Code;
354	354	(vii) any felony under Chapter 32, Human
355	355	Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
356	356	involves the state Medicaid program;
357	357	(viii) a Class B misdemeanor under Chapter
358	358	522, Business & Commerce Code; or
359	359	(ix) a Class A misdemeanor under Section
360	360	35.153, Business & Commerce Code;
361	361	(C) the proceeds gained from the commission of a
362	362	felony listed in Paragraph (A) or (B) of this subdivision, a
363	363	misdemeanor listed in Paragraph (B)(viii) of this subdivision, or a
364	364	crime of violence;
365	365	(D) acquired with proceeds gained from the
366	366	commission of a felony listed in Paragraph (A) or (B) of this
367	367	subdivision, a misdemeanor listed in Paragraph (B)(viii) of this
368	368	subdivision, or a crime of violence; or
369	369	(E) used to facilitate or intended to be used to
370	370	facilitate the commission of a felony under Section 15.031 or
371	371	43.25, Penal Code.
372	372	SECTION 6. (a) The changes in law made by Chapter 140,
373	373	Civil Practice and Remedies Code, and Chapter 34A, Penal Code, as
374	374	added by this Act, and by Subsection (a), Section 71.02, Penal Code,
375	375	and Subdivisions (1) and (2), Article 59.01, Code of Criminal
376	376	Procedure, as amended by this Act, apply only to an offense
377	377	committed on or after the effective date of this Act. For purposes
378	378	of this section, an offense was committed before the effective date
379	379	of this Act if any element of the offense occurred before that date.
380	380	(b) An offense committed before the effective date of this
381	381	Act is covered by the law in effect when the offense was committed,
382	382	and the former law is continued in effect for that purpose.
383	383	SECTION 7. This Act takes effect immediately if it receives
384	384	a vote of two-thirds of all the members elected to each house, as
385	385	provided by Section 39, Article III, Texas Constitution. If this
386	386	Act does not receive the vote necessary for immediate effect, this
387	387	Act takes effect September 1, 2009.