Texas 2011 - 82nd Regular

Texas House Bill HB255 Compare Versions

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1	1	82R15875 MXM-F
2	2	By: Hilderbran H.B. No. 255
3	3	Substitute the following for H.B. No. 255:
4	4	By: Otto C.S.H.B. No. 255
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the enforcement of tax laws; providing a criminal
10	10	penalty.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Article 13.13, Code of Criminal Procedure, is
13	13	amended to read as follows:
14	14	Art. 13.13. CONSPIRACY. Criminal conspiracy may be
15	15	prosecuted in the county where the conspiracy was entered into, in
16	16	the county where the conspiracy was agreed to be executed, or in any
17	17	county in which one or more of the conspirators does any act to
18	18	effect an object of the conspiracy. If the object of the conspiracy
19	19	is an offense classified as a felony under the Tax Code, regardless
20	20	of whether the offense was committed, the conspiracy may be
21	21	prosecuted in any county in which venue is proper under the Tax Code
22	22	for the offense. If a conspiracy was entered into outside this
23	23	State under circumstances that give this State jurisdiction to
24	24	prosecute the offender, the offender may be prosecuted in the
25	25	county where the conspiracy was agreed to be executed, [or] in the
26	26	county where any one of the conspirators was found, or in Travis
27	27	County.
28	28	SECTION 2. Article 13.21, Code of Criminal Procedure, is
29	29	amended to read as follows:
30	30	Art. 13.21. ORGANIZED CRIMINAL ACTIVITY. The offense of
31	31	engaging in organized criminal activity may be prosecuted in any
32	32	county in which any act is committed to effect an objective of the
33	33	combination, or, if the prosecution is based on a criminal offense
34	34	classified as a felony under the Tax Code, in any county in which
35	35	venue is proper under the Tax Code for the offense.
36	36	SECTION 3. Chapter 13, Code of Criminal Procedure, is
37	37	amended by adding Article 13.35 to read as follows:
38	38	Art. 13.35. MONEY LAUNDERING. Money laundering may be
39	39	prosecuted in the county in which the offense was committed as
40	40	provided by Article 13.18 or, if the prosecution is based on a
41	41	criminal offense classified as a felony under the Tax Code, in any
42	42	county in which venue is proper under the Tax Code for the offense.
43	43	SECTION 4. Chapter 42, Code of Criminal Procedure, is
44	44	amended by adding Article 42.0182 to read as follows:
45	45	Art. 42.0182. FINDINGS REGARDING TAX FRAUD. (a) In the
46	46	trial of an offense under the Tax Code or an offense under the Penal
47	47	Code related to the administration of taxes, the state may file a
48	48	written request with the court in which the indictment or
49	49	information is pending for the court to make affirmative findings
50	50	regarding the commission of tax fraud as described by Subsection
51	51	(b). The state must provide a copy of the written request to the
52	52	defendant before the date the trial begins.
53	53	(b) If the state requests affirmative findings in the manner
54	54	required by Subsection (a), the court shall make the requested
55	55	affirmative findings and enter the findings in the papers in the
56	56	case if the court finds by clear and convincing evidence that:
57	57	(1) the defendant's failure to pay a tax or file a
58	58	report when due, as required by Title 2 or 3, Tax Code, was a result
59	59	of fraud or an intent to evade the tax;
60	60	(2) the defendant altered, destroyed, or concealed any
61	61	record, document, or thing, or presented to the comptroller any
62	62	altered or fraudulent record, document, or thing, or otherwise
63	63	engaged in fraudulent conduct for the apparent purpose of affecting
64	64	the course or outcome of an audit, investigation, redetermination,
65	65	or other proceeding before the comptroller; or
66	66	(3) the defendant's failure to file a report under
67	67	Chapter 162, Tax Code, or to pay a tax under that chapter when the
68	68	tax became due is attributable to fraud or an intent to evade the
69	69	application of Chapter 162, Tax Code, or a rule adopted under
70	70	Chapter 111 or 162, Tax Code.
71	71	SECTION 5. Section 403.012, Government Code, is amended to
72	72	read as follows:
73	73	Sec. 403.012. ACCEPTANCE OF FEDERAL MONEY OR PROPERTY. (a)
74	74	The comptroller may accept federal money for a state agency not
75	75	otherwise restricted by statute or by rider or special provision in
76	76	the General Appropriations Act, if the state agency has certified
77	77	to the comptroller that the agency will be responsible for
78	78	compliance with applicable federal and state law.
79	79	(b) The comptroller may accept money or property under a
80	80	federal equitable sharing program. In accepting the money or
81	81	property, the comptroller shall comply with federal program
82	82	requirements, including those governing accounting and the
83	83	permissible use of an award.
84	84	SECTION 6. Section 411.109(a), Government Code, is amended
85	85	to read as follows:
86	86	(a) The comptroller is entitled to obtain from the
87	87	department criminal history record information maintained by the
88	88	department that the comptroller believes is necessary for the
89	89	enforcement or administration of Chapter 151, 152, [153,] 154, [or]
90	90	155, or 162, Tax Code, including criminal history record
91	91	information that relates to a person who is:
92	92	(1) an applicant for a permit under any of those
93	93	chapters;
94	94	(2) a permit holder under any of those chapters;
95	95	(3) an officer, director, stockholder owning 10
96	96	percent or more of the outstanding stock, partner, owner, or
97	97	managing employee of an applicant or permit holder under any of
98	98	those chapters that is a corporation, association, joint venture,
99	99	syndicate, partnership, or proprietorship;
100	100	(4) believed to have violated any of those chapters;
101	101	or
102	102	(5) being considered by the comptroller for employment
103	103	as a peace officer.
104	104	SECTION 7. Section 34.01(4), Penal Code, is amended to read
105	105	as follows:
106	106	(4) "Proceeds" means funds acquired or derived
107	107	directly or indirectly from, produced through, or realized through:
108	108	(A) an act; or
109	109	(B) conduct that constitutes an offense under
110	110	Section 151.7032, Tax Code.
111	111	SECTION 8. Section 71.02(a), Penal Code, as amended by
112	112	Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357 (S.B. 554),
113	113	Acts of the 81st Legislature, Regular Session, 2009, is reenacted
114	114	and amended to read as follows:
115	115	(a) A person commits an offense if, with the intent to
116	116	establish, maintain, or participate in a combination or in the
117	117	profits of a combination or as a member of a criminal street gang,
118	118	the person commits or conspires to commit one or more of the
119	119	following:
120	120	(1) murder, capital murder, arson, aggravated
121	121	robbery, robbery, burglary, theft, aggravated kidnapping,
122	122	kidnapping, aggravated assault, aggravated sexual assault, sexual
123	123	assault, forgery, deadly conduct, assault punishable as a Class A
124	124	misdemeanor, burglary of a motor vehicle, or unauthorized use of a
125	125	motor vehicle;
126	126	(2) any gambling offense punishable as a Class A
127	127	misdemeanor;
128	128	(3) promotion of prostitution, aggravated promotion
129	129	of prostitution, or compelling prostitution;
130	130	(4) unlawful manufacture, transportation, repair, or
131	131	sale of firearms or prohibited weapons;
132	132	(5) unlawful manufacture, delivery, dispensation, or
133	133	distribution of a controlled substance or dangerous drug, or
134	134	unlawful possession of a controlled substance or dangerous drug
135	135	through forgery, fraud, misrepresentation, or deception;
136	136	(6) any unlawful wholesale promotion or possession of
137	137	any obscene material or obscene device with the intent to wholesale
138	138	promote the same;
139	139	(7) any offense under Subchapter B, Chapter 43,
140	140	depicting or involving conduct by or directed toward a child
141	141	younger than 18 years of age;
142	142	(8) any felony offense under Chapter 32;
143	143	(9) any offense under Chapter 36;
144	144	(10) any offense under Chapter 34 or 35;
145	145	(11) any offense under Section 37.11(a);
146	146	(12) any offense under Chapter 20A;
147	147	(13) any offense under Section 37.10; [or]
148	148	(14) any offense under Section 38.06, 38.07, 38.09, or
149	149	38.11;
150	150	(15) [(14)] any offense under Section 42.10;
151	151	(16) [(14)] any offense under Section 46.06(a)(1) or
152	152	46.14; or
153	153	(17) any offense classified as a felony under the Tax
154	154	Code.
155	155	SECTION 9. Chapter 101, Tax Code, is amended by adding
156	156	Section 101.0021 to read as follows:
157	157	Sec. 101.0021. APPLICABILITY OF PENAL CODE. In addition to
158	158	Section 1.03, Penal Code, Sections 15.02 and 15.04, Penal Code, and
159	159	Title 11, Penal Code, apply to offenses prescribed by this code.
160	160	SECTION 10. Subchapter A, Chapter 111, Tax Code, is amended
161	161	by adding Section 111.00452 to read as follows:
162	162	Sec. 111.00452. EMPLOYMENT OF INVESTIGATORS. (a) In
163	163	addition to the authority granted by Section 111.0045, an
164	164	investigator employed under that section may investigate:
165	165	(1) any criminal offense under this code; or
166	166	(2) any criminal offense under any other law if the
167	167	offense relates directly or indirectly to a tax, fee, penalty, or
168	168	charge administered, collected, or enforced by the comptroller.
169	169	(b) An investigator commissioned by the comptroller as a
170	170	peace officer has the powers of a peace officer coextensive with the
171	171	boundaries of this state.
172	172	SECTION 11. Section 111.006(c), Tax Code, is amended to
173	173	read as follows:
174	174	(c) The comptroller or the attorney general may:
175	175	(1) use information or records made confidential by
176	176	[provisions of] this title to enforce:
177	177	(A) [any provisions of] this title; or
178	178	(B) the criminal laws of this state or the United
179	179	States; or
180	180	(2) [may] authorize the [their] use of information or
181	181	records made confidential by this title in a judicial or an
182	182	administrative proceeding in which this state, another state, or
183	183	the federal government is a party.
184	184	SECTION 12. Section 111.061, Tax Code, is amended by adding
185	185	Subsection (c) to read as follows:
186	186	(c) The penalties provided by Subsection (b) are intended to
187	187	be remedial in nature and are provided for the protection of state
188	188	revenue and to reimburse the state for expenses incurred as a result
189	189	of fraud, including expenses incurred in conducting an
190	190	investigation.
191	191	SECTION 13. Sections 111.207(a) and (b), Tax Code, are
192	192	amended to read as follows:
193	193	(a) In determining the expiration date for a period when a
194	194	tax imposed by this title may be assessed, collected, or refunded,
195	195	the following periods are not considered:
196	196	(1) the period following the date of a tax payment made
197	197	under protest, but only if a lawsuit is timely filed in accordance
198	198	with Chapter 112;
199	199	(2) the period during which a judicial proceeding is
200	200	pending in a court of competent jurisdiction to determine the
201	201	amount of the tax due; [and]
202	202	(3) the period during which an administrative
203	203	redetermination or refund hearing is pending before the
204	204	comptroller; and
205	205	(4) the period during which an indictment or
206	206	information is pending for a felony offense related to the
207	207	administration of the Tax Code against any taxpayer or any person
208	208	personally liable or potentially personally liable for the payment
209	209	of the tax under Section 111.0611.
210	210	(b) The suspension of a period of limitation under
211	211	Subsection (a)(1), (2), or (3) [(a)] is limited to the issues that
212	212	were contested under those subdivisions [Subdivision (1), (2), or
213	213	(3) of that subsection].
214	214	SECTION 14. Section 151.025(a), Tax Code, is amended to
215	215	read as follows:
216	216	(a) All sellers and all other persons storing, using, or
217	217	consuming in this state a taxable item purchased from a retailer
218	218	shall keep the following records in the form the comptroller
219	219	requires:
220	220	(1) records of all gross receipts, including
221	221	documentation in the form of receipts, shipping manifests,
222	222	invoices, and other pertinent papers, from each sale, rental,
223	223	lease, taxable service, and taxable labor transaction occurring
224	224	during each reporting period;
225	225	(2) records in the form of receipts, shipping
226	226	manifests, invoices, and other pertinent papers of all purchases of
227	227	taxable items from every source made during each reporting period;
228	228	[and]
229	229	(3) records in the form of receipts, shipping
230	230	manifests, invoices, and other pertinent papers that substantiate
231	231	each claimed deduction or exclusion authorized by law; and
232	232	(4) records in the form of sales receipts, invoices,
233	233	or other equivalent records showing all sales and use tax, and any
234	234	money represented to be sales and use tax, received or collected on
235	235	each sale, rental, lease, or service transaction during each
236	236	reporting period.
237	237	SECTION 15. The heading to Section 151.7032, Tax Code, is
238	238	amended to read as follows:
239	239	Sec. 151.7032. FAILURE TO PAY TAXES COLLECTED; CRIMINAL
240	240	PENALTY AND AGGREGATION OF AMOUNTS INVOLVED.
241	241	SECTION 16. Section 151.7032, Tax Code, is amended by
242	242	amending Subsection (b) and adding Subsection (c) to read as
243	243	follows:
244	244	(b) An offense under this section is:
245	245	(1) a Class C misdemeanor if the amount of the tax
246	246	collected and not paid is less than $50 [$10,000];
247	247	(2) a Class B misdemeanor if the amount of the tax
248	248	collected and not paid is $50 or more but less than $500;
249	249	(3) a Class A misdemeanor if the amount of the tax
250	250	collected and not paid is $500 or more but less than $1,500;
251	251	(4) a state jail felony if the amount of the tax
252	252	collected and not paid is $1,500 [$10,000] or more but less than
253	253	$20,000;
254	254	(5) [(3)] a felony of the third degree if the amount of
255	255	the tax collected and not paid is $20,000 or more but less than
256	256	$100,000; [and]
257	257	(6) [(4)] a felony of the second degree if the amount
258	258	of the tax collected and not paid is $100,000 or more but less than
259	259	$200,000; and
260	260	(7) a felony of the first degree if the amount of the
261	261	tax collected and not paid is $200,000 or more.
262	262	(c) When tax is collected and not paid in violation of
263	263	Subsection (a) pursuant to one scheme or continuous course of
264	264	conduct, the conduct may be considered as one offense and the
265	265	amounts aggregated in determining the grade of the offense.
266	266	SECTION 17. Section 151.707(b), Tax Code, is amended to
267	267	read as follows:
268	268	(b) An offense under Subsection (a) [(a)(1) or (a)(2) of
269	269	this section] is:
270	270	(1) a Class C misdemeanor if the tax avoided by the use
271	271	of the exemption or resale certificate is less than $20;
272	272	(2) a Class B misdemeanor if the tax avoided by the use
273	273	of the exemption or resale certificate is $20 or more, but less than
274	274	$200;
275	275	(3) a Class A misdemeanor if the tax avoided by the use
276	276	of the exemption or resale certificate is $200 or more, but less
277	277	than $750;
278	278	(4) a felony of the third degree if the tax avoided by
279	279	the use of the exemption or resale certificate is $750 or more, but
280	280	less than $20,000; or
281	281	(5) a felony of the second degree if the tax avoided by
282	282	the use of the exemption or resale certificate is $20,000 or more.
283	283	SECTION 18. Subchapter L, Chapter 151, Tax Code, is amended
284	284	by adding Section 151.7075 to read as follows:
285	285	Sec. 151.7075. FAILURE TO PRODUCE CERTAIN RECORDS AFTER
286	286	USING RESALE CERTIFICATE; CRIMINAL PENALTY. (a) A person commits
287	287	an offense if the person intentionally fails to produce to the
288	288	comptroller records that document a taxpayer's taxable sale of
289	289	items that the taxpayer obtained using a resale certificate.
290	290	(b) The records to which Subsection (a) applies are records:
291	291	(1) required to be kept under Section 151.025; and
292	292	(2) requested by the comptroller under Section 151.023
293	293	that are not produced in the period required by that section.
294	294	(c) The items to which Subsection (a) applies are items the
295	295	sales of which are required to be reported to the comptroller under
296	296	Section 151.433, 154.212, or 155.105.
297	297	(d) An offense under this section is:
298	298	(1) a Class C misdemeanor if the tax avoided by the use
299	299	of the resale certificate is less than $20;
300	300	(2) a Class B misdemeanor if the tax avoided by the use
301	301	of the resale certificate is $20 or more but less than $200;
302	302	(3) a Class A misdemeanor if the tax avoided by the use
303	303	of the resale certificate is $200 or more but less than $750;
304	304	(4) a felony of the third degree if the tax avoided by
305	305	the use of the resale certificate is $750 or more but less than
306	306	$20,000; or
307	307	(5) a felony of the second degree if the tax avoided by
308	308	the use of the resale certificate is $20,000 or more.
309	309	(e) It is an affirmative defense to prosecution under this
310	310	section that the items listed for purchase on the resale
311	311	certificate had not been resold at the time of the comptroller's
312	312	request for records under Section 151.023.
313	313	(f) If conduct described by Subsection (a) is related to one
314	314	scheme or continuous course of conduct, the conduct may be
315	315	considered as one offense and the amounts of tax avoided may be
316	316	aggregated in determining the grade of the offense.
317	317	SECTION 19. Section 154.405, Tax Code, is amended by adding
318	318	Subsection (e) to read as follows:
319	319	(e) A forfeiture proceeding under this section is an in rem
320	320	proceeding.
321	321	SECTION 20. Section 154.406, Tax Code, is amended by
322	322	amending Subsection (a) and adding Subsection (d) to read as
323	323	follows:
324	324	(a) The comptroller may sell property forfeited to the state
325	325	at public or private sale in any commercially reasonable manner or
326	326	retain the property for official use by the comptroller's criminal
327	327	investigation division. Property retained for use under this
328	328	subsection may later be sold by the comptroller under this section.
329	329	(d) If an automobile or other vehicle seized under Section
330	330	154.403 is forfeited and retained by the comptroller under
331	331	Subsection (a), the comptroller is considered the owner under
332	332	Subtitle A, Title 7, Transportation Code. The Texas Department of
333	333	Motor Vehicles shall issue a certificate of title for the vehicle to
334	334	the comptroller. The comptroller may maintain, repair, use, and
335	335	operate the vehicle with money appropriated for current operations.
336	336	SECTION 21. Subchapter H, Chapter 154, Tax Code, is amended
337	337	by adding Section 154.407 to read as follows:
338	338	Sec. 154.407. PHOTOGRAPHIC EVIDENCE IN CASES INVOLVING
339	339	SEIZED CIGARETTES. (a) The comptroller may photograph cigarettes
340	340	seized under Section 154.403 before their sale under this
341	341	subchapter.
342	342	(b) In a proceeding arising out of this chapter, including a
343	343	criminal proceeding, the state is not required to produce the
344	344	actual cigarettes.
345	345	(c) The photographs are admissible in evidence under rules
346	346	of law governing the admissibility of photographs. The photographs
347	347	are as admissible in evidence as are the cigarettes themselves.
348	348	(d) A person's rights of discovery and inspection of
349	349	tangible physical evidence are satisfied if the photographs taken
350	350	under this section are made available to the person by the state on
351	351	order of any court or other entity having jurisdiction over the
352	352	proceeding.
353	353	SECTION 22. Section 155.145, Tax Code, is amended by adding
354	354	Subsection (e) to read as follows:
355	355	(e) A forfeiture proceeding under this section is an in rem
356	356	proceeding.
357	357	SECTION 23. Section 155.1451, Tax Code, is amended by
358	358	amending Subsection (a) and adding Subsection (d) to read as
359	359	follows:
360	360	(a) The comptroller may sell property forfeited to the state
361	361	at public or private sale in any commercially reasonable manner or
362	362	retain the property for official use by the comptroller's criminal
363	363	investigation division. Property retained for use under this
364	364	subsection may later be sold by the comptroller under this section.
365	365	(d) If an automobile or other vehicle seized under Section
366	366	155.143 is forfeited and retained by the comptroller under
367	367	Subsection (a), the comptroller is considered the owner under
368	368	Subtitle A, Title 7, Transportation Code. The Texas Department of
369	369	Motor Vehicles shall issue a certificate of title for the vehicle to
370	370	the comptroller. The comptroller may maintain, repair, use, and
371	371	operate the vehicle with money appropriated for current operations.
372	372	SECTION 24. Subchapter E, Chapter 155, Tax Code, is amended
373	373	by adding Section 155.146 to read as follows:
374	374	Sec. 155.146. PHOTOGRAPHIC EVIDENCE IN CASES INVOLVING
375	375	SEIZED TOBACCO PRODUCTS. (a) The comptroller may photograph
376	376	tobacco products seized under Section 155.143 before their sale
377	377	under this subchapter.
378	378	(b) In a proceeding arising out of this chapter, including a
379	379	criminal proceeding, the state is not required to produce the
380	380	actual tobacco products.
381	381	(c) The photographs are admissible in evidence under rules
382	382	of law governing the admissibility of photographs. The photographs
383	383	are as admissible in evidence as are the tobacco products
384	384	themselves.
385	385	(d) A person's rights of discovery and inspection of
386	386	tangible physical evidence are satisfied if the photographs taken
387	387	under this section are made available to the person by the state on
388	388	order of any court or other entity having jurisdiction over the
389	389	proceeding.
390	390	SECTION 25. Section 162.401, Tax Code, is amended by adding
391	391	Subsection (c) to read as follows:
392	392	(c) The penalties provided by Subsection (b) are intended to
393	393	be remedial in nature and are provided for the protection of state
394	394	revenue and to reimburse the state for expenses incurred as a result
395	395	of fraud, including expenses incurred in conducting an
396	396	investigation.
397	397	SECTION 26. Except as provided by Section 27 of this Act,
398	398	the changes in law made by this Act apply only to an offense
399	399	committed on or after the effective date of this Act. An offense
400	400	committed before the effective date of this Act is covered by the
401	401	law in effect when the offense was committed, and the former law is
402	402	continued in effect for that purpose. For purposes of this section,
403	403	an offense was committed before the effective date of this Act if
404	404	any element of the offense occurred before that date.
405	405	SECTION 27. The change in law made by this Act in amending
406	406	Article 13.13, Code of Criminal Procedure, applies only to a
407	407	criminal case in which the indictment or information is presented
408	408	to the court on or after the effective date of this Act. A criminal
409	409	case in which the indictment or information was presented to the
410	410	court before the effective date of this Act is governed by the law
411	411	in effect when the indictment or information was presented, and the
412	412	former law is continued in effect for that purpose.
413	413	SECTION 28. This Act applies only to a seizure of property
414	414	that occurs on or after the effective date of this Act. A seizure of
415	415	property that occurs before the effective date of this Act is
416	416	covered by the law in effect as it existed on the date the seizure
417	417	occurred, and the former law is continued in effect for that
418	418	purpose.
419	419	SECTION 29. This Act takes effect September 1, 2011.