81R15189 GCB-F
By: Miklos H.B. No. 3548
A BILL TO BE ENTITLED
AN ACT
relating to the forfeiture of certain contraband and an affirmative
defense to that forfeiture.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.01(1), Code of Criminal Procedure, is
amended to read as follows:
(1) "Attorney representing the state" means the
prosecutor with felony jurisdiction in the county in which a
forfeiture proceeding is held under this chapter or, in a
proceeding for forfeiture of contraband as defined under
Subdivision (2)(B)(v) or (2)(F) of this article, the city attorney
of a municipality if the property is seized in that municipality by
a peace officer employed by that municipality and the governing
body of the municipality has approved procedures for the city
attorney acting in a forfeiture proceeding. In a proceeding for
forfeiture of contraband as defined under Subdivision (2)(B)(vii)
or (2)(F) of this article, the term includes the attorney general.
SECTION 2. Article 59.01(2), Code of Criminal Procedure, as
amended by Chapters 127 (S.B. 1694), 822 (H.B. 73), and 885 (H.B.
2278), Acts of the 80th Legislature, Regular Session, 2007, is
reenacted and amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 20A, 29,
30, 31, 32, 33, 33A, or 35, Penal Code;
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
(iv) any offense under Chapter 49, Penal
Code, that is punishable as a felony of the third degree or state
jail felony, if the defendant has been previously convicted three
times of an offense under that chapter;
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Chapter
522, Business & Commerce Code; or
(ix) a Class A misdemeanor under Section
35.153, Business & Commerce Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(viii) of this subdivision, or a
crime of violence;
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(viii) of this
subdivision, or a crime of violence; [or]
(E) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 15.031 or
43.25, Penal Code; or
(F) used to facilitate or intended to be used to
facilitate the commission of an offense under Section 20A.02,
43.02, 43.03, or 43.04, Penal Code.
SECTION 3. Article 59.02, Code of Criminal Procedure, is
amended by adding Subsection (j) to read as follows:
(j) A community property interest in a motor vehicle defined
as contraband under Article 59.01(2)(F) may not be forfeited under
this chapter if at the forfeiture hearing the spouse proves by a
preponderance of the evidence that the spouse was not a party to the
offense giving rise to the forfeiture and that:
(1) the forfeiture of the motor vehicle will result in
an unusual economic hardship for the spouse; or
(2) the use of the motor vehicle is necessary because
of the illness of a member of the spouse's family.
SECTION 4. Article 59.06, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (r) to
read as follows:
(a) Except as provided by Subsection (k) or (r), all
forfeited property shall be administered by the attorney
representing the state, acting as the agent of the state, in
accordance with accepted accounting practices and with the
provisions of any local agreement entered into between the attorney
representing the state and law enforcement agencies. If a local
agreement has not been executed, the property shall be sold on the
75th day after the date of the final judgment of forfeiture at
public auction under the direction of the county sheriff, after
notice of public auction as provided by law for other sheriff's
sales. The proceeds of the sale shall be distributed as follows:
(1) to any interest holder to the extent of the
interest holder's nonforfeitable interest; and
(2) the balance, if any, after the deduction of court
costs to which a district court clerk is entitled under Article
59.05(f) and, after that deduction, the deduction of storage and
disposal costs, to be deposited not later than the 30th day after
the date of the sale in the state treasury to the credit of the
general revenue fund.
(r) Regardless of whether a local agreement exists between
the attorney representing the state and law enforcement agencies,
if the forfeited property is used in the commission of an offense
under Chapter 20A, Penal Code, or is defined as contraband under
Article 59.01(2)(F), the attorney representing the state shall sell
the forfeited property and deliver to the comptroller the proceeds
from the sale, minus any amount owed to an interest holder to the
extent of the holder's nonforfeitable interest and any costs
attributable to the sale. The attorney representing the state
shall conduct the sale in a manner that is reasonably expected to
result in receiving the fair market value for the property. The
comptroller shall deposit all amounts received under this
subsection in the sexual assault program fund created under Section
420.008, Government Code.
SECTION 5. Article 59.06, Code of Criminal Procedure, as
amended by this Act, applies to personal property seized or taken
into custody on or after the effective date of this Act. Personal
property seized or taken into custody before the effective date of
this Act is governed by the law in effect on the date the property is
seized or taken into custody, and the former law is continued in
effect for that purpose.
SECTION 6. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTION 7. This Act takes effect September 1, 2009.