| 1 | 1 | | 82R2214 PEP-F |
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| 2 | 2 | | By: Gallego H.B. No. 2856 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to criminal asset forfeiture, the disposition of proceeds |
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| 8 | 8 | | and property from criminal asset forfeiture, and accountability for |
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| 9 | 9 | | that disposition; providing civil penalties. |
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| 10 | 10 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 11 | 11 | | SECTION 1. Article 59.03, Code of Criminal Procedure, is |
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| 12 | 12 | | amended by amending Subsection (d) and adding Subsection (e) to |
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| 13 | 13 | | read as follows: |
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| 14 | 14 | | (d) A person in the possession of property at the time a |
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| 15 | 15 | | peace officer seizes the property under this chapter may at the time |
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| 16 | 16 | | of seizure assert the person's interest in or right to the property. |
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| 17 | 17 | | Any peace officer, including the [A] peace officer who seizes the |
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| 18 | 18 | | property, [under this chapter] may not [at the time of seizure] |
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| 19 | 19 | | request, require, or in any manner induce any person, including a |
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| 20 | 20 | | person who asserts an interest in or right to the property [seized], |
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| 21 | 21 | | to execute a document purporting to waive the person's interest in |
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| 22 | 22 | | or rights to [the] property seized under this chapter. |
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| 23 | 23 | | (e) At any time before notice is filed under Article |
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| 24 | 24 | | 59.04(b), an attorney representing the state may not request, |
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| 25 | 25 | | require, or in any manner induce any person, including a person who |
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| 26 | 26 | | asserts an interest in or right to property seized under this |
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| 27 | 27 | | chapter, to execute a document purporting to waive the person's |
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| 28 | 28 | | interest in or rights to the property. |
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| 29 | 29 | | SECTION 2. Article 59.06, Code of Criminal Procedure, is |
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| 30 | 30 | | amended by adding Subsections (c-2), (d-1), and (d-2) and amending |
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| 31 | 31 | | Subsections (d) and (g) to read as follows: |
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| 32 | 32 | | (c-2) Any postjudgment interest from money, securities, |
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| 33 | 33 | | negotiable instruments, stocks or bonds, or things of value, or |
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| 34 | 34 | | proceeds from the sale of those items, that are deposited in an |
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| 35 | 35 | | interest-bearing bank account under Subsection (c) shall be used |
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| 36 | 36 | | for the same purpose as the principal. |
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| 37 | 37 | | (d) Proceeds awarded under this chapter to a law enforcement |
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| 38 | 38 | | agency or to the attorney representing the state may be spent by the |
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| 39 | 39 | | agency or the attorney after a budget for the expenditure of the |
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| 40 | 40 | | proceeds has been submitted to the commissioners court or governing |
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| 41 | 41 | | body of the municipality. The budget must be detailed and clearly |
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| 42 | 42 | | list and define the categories of expenditures, but may not list |
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| 43 | 43 | | details that would endanger the security of an investigation or |
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| 44 | 44 | | prosecution. Expenditures are subject to the audit and enforcement |
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| 45 | 45 | | provisions established under this chapter [article]. A |
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| 46 | 46 | | commissioners court or governing body of a municipality may not use |
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| 47 | 47 | | the existence of an award to offset or decrease total salaries, |
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| 48 | 48 | | expenses, and allowances that the agency or the attorney receives |
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| 49 | 49 | | from the commissioners court or governing body at or after the time |
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| 50 | 50 | | the proceeds are awarded. |
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| 51 | 51 | | (d-1) The head of a law enforcement [the] agency or an |
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| 52 | 52 | | attorney representing the state may not use proceeds or property |
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| 53 | 53 | | received under this chapter to: |
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| 54 | 54 | | (1) contribute to a political campaign; |
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| 55 | 55 | | (2) make a donation to any entity, except as provided |
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| 56 | 56 | | by Subsection (d-2); |
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| 57 | 57 | | (3) pay expenses related to the training or education |
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| 58 | 58 | | of any member of the judiciary; |
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| 59 | 59 | | (4) pay any travel expenses related to attendance at |
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| 60 | 60 | | training or education seminars if the expenses violate generally |
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| 61 | 61 | | applicable restrictions established by the commissioners court or |
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| 62 | 62 | | governing body of the municipality, as applicable; |
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| 63 | 63 | | (5) purchase alcoholic beverages; |
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| 64 | 64 | | (6) make any expenditure not approved by the |
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| 65 | 65 | | commissioners court or governing body of the municipality, as |
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| 66 | 66 | | applicable, if the head of a law enforcement agency or attorney |
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| 67 | 67 | | representing the state holds an elective office and: |
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| 68 | 68 | | (A) the deadline for filing an application for a |
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| 69 | 69 | | place on the ballot as a candidate for reelection to that office in |
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| 70 | 70 | | the general primary election has passed and the person did not file |
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| 71 | 71 | | an application for a place on that ballot; or |
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| 72 | 72 | | (B) during the person's current term of office, |
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| 73 | 73 | | the person was a candidate in a primary, general, or runoff election |
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| 74 | 74 | | for reelection to that office and was not the prevailing candidate |
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| 75 | 75 | | in that election; or |
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| 76 | 76 | | (7) [the existence of an award to] increase a salary, |
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| 77 | 77 | | expense, or allowance for an employee of the law enforcement agency |
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| 78 | 78 | | or attorney representing the state [or agency] who is budgeted by |
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| 79 | 79 | | the commissioners court or governing body of the municipality |
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| 80 | 80 | | unless the commissioners court or governing body first approves the |
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| 81 | 81 | | increase [expenditure]. |
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| 82 | 82 | | (d-2) The head of a law enforcement agency or an attorney |
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| 83 | 83 | | representing the state may use as an official purpose of the agency |
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| 84 | 84 | | or attorney proceeds or property received under this chapter to |
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| 85 | 85 | | make a donation to an entity that assists in: |
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| 86 | 86 | | (1) the detection, investigation, or prosecution of: |
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| 87 | 87 | | (A) criminal offenses; or |
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| 88 | 88 | | (B) instances of abuse, as defined by Section |
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| 89 | 89 | | 261.001, Family Code; |
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| 90 | 90 | | (2) the provision of: |
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| 91 | 91 | | (A) mental health, drug, or rehabilitation |
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| 92 | 92 | | services; or |
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| 93 | 93 | | (B) services for victims or witnesses of criminal |
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| 94 | 94 | | offenses or instances of abuse described by Subdivision (1); or |
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| 95 | 95 | | (3) the provision of training or education related to |
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| 96 | 96 | | duties or services described by Subdivision (1) or (2). |
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| 97 | 97 | | (g)(1) All law enforcement agencies and attorneys |
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| 98 | 98 | | representing the state who receive proceeds or property under this |
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| 99 | 99 | | chapter shall account for the seizure, forfeiture, receipt, and |
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| 100 | 100 | | specific expenditure of all the [such] proceeds and property in an |
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| 101 | 101 | | audit, which is to be performed annually by the commissioners court |
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| 102 | 102 | | or governing body of a municipality, as appropriate. The annual |
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| 103 | 103 | | period of the audit for a law enforcement agency is the fiscal year |
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| 104 | 104 | | of the appropriate county or municipality and the annual period for |
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| 105 | 105 | | an attorney representing the state is the state fiscal year. The |
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| 106 | 106 | | audit must [shall] be completed on a form provided by the attorney |
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| 107 | 107 | | general and must include a detailed report and explanation of all |
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| 108 | 108 | | expenditures, including salaries and overtime pay, officer |
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| 109 | 109 | | training, investigative equipment and supplies, and other items. |
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| 110 | 110 | | Certified copies of the audit shall be delivered by the law |
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| 111 | 111 | | enforcement agency or attorney representing the state to [the |
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| 112 | 112 | | comptroller's office and] the attorney general not later than the |
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| 113 | 113 | | 60th day after the date on which the annual period that is the |
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| 114 | 114 | | subject of the audit ends. |
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| 115 | 115 | | (2) If a copy of the audit is not delivered to the |
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| 116 | 116 | | attorney general within the period required by Subdivision (1), |
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| 117 | 117 | | within five days after the end of the period the attorney general |
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| 118 | 118 | | shall notify the law enforcement agency or the attorney |
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| 119 | 119 | | representing the state of that fact. On a showing of good cause, |
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| 120 | 120 | | the attorney general may grant an extension permitting the agency |
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| 121 | 121 | | or attorney to deliver a copy of the audit after the period required |
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| 122 | 122 | | by Subdivision (1) and before the 76th day after the date on which |
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| 123 | 123 | | the annual period that is the subject of the audit ends. If the law |
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| 124 | 124 | | enforcement agency or the attorney representing the state fails to |
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| 125 | 125 | | establish good cause for not delivering the copy of the audit within |
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| 126 | 126 | | the period required by Subdivision (1) or fails to deliver a copy of |
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| 127 | 127 | | an audit within the extension period, the attorney general shall |
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| 128 | 128 | | notify the comptroller of that fact. |
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| 129 | 129 | | (3) On notice under Subdivision (2) [this |
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| 130 | 130 | | subdivision], the comptroller shall perform the audit otherwise |
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| 131 | 131 | | required by Subdivision (1). At the conclusion of the audit, the |
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| 132 | 132 | | comptroller shall forward a copy of the audit to the attorney |
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| 133 | 133 | | general. The law enforcement agency or attorney representing the |
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| 134 | 134 | | state is liable to the comptroller for the costs of the comptroller |
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| 135 | 135 | | in performing the audit. |
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| 136 | 136 | | SECTION 3. Chapter 59, Code of Criminal Procedure, is |
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| 137 | 137 | | amended by adding Articles 59.061 and 59.062 to read as follows: |
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| 138 | 138 | | Art. 59.061. AUDITS AND INVESTIGATIONS. (a) The state |
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| 139 | 139 | | auditor may at any time perform an audit or conduct an |
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| 140 | 140 | | investigation, in accordance with this article and Chapter 321, |
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| 141 | 141 | | Government Code, related to the seizure, forfeiture, receipt, and |
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| 142 | 142 | | specific expenditure of proceeds and property received under this |
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| 143 | 143 | | chapter. |
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| 144 | 144 | | (b) The state auditor is entitled at any time to access any |
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| 145 | 145 | | book, account, voucher, confidential or nonconfidential report, or |
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| 146 | 146 | | other record of information, including electronic data, maintained |
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| 147 | 147 | | under Article 59.06, except that if the release of the applicable |
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| 148 | 148 | | information is restricted under state or federal law, the state |
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| 149 | 149 | | auditor may access the information only with the approval of a court |
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| 150 | 150 | | or federal administrative agency, as appropriate. |
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| 151 | 151 | | (c) If the results of an audit or investigation under this |
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| 152 | 152 | | article indicate that a law enforcement agency or attorney |
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| 153 | 153 | | representing the state has knowingly violated or is knowingly |
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| 154 | 154 | | violating a provision of this chapter relating to the disposition |
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| 155 | 155 | | of proceeds or property received under this chapter, the state |
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| 156 | 156 | | auditor shall promptly notify the attorney general for the purpose |
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| 157 | 157 | | of initiating appropriate enforcement proceedings under Article |
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| 158 | 158 | | 59.062. |
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| 159 | 159 | | Art. 59.062. ENFORCEMENT. (a) In the name of the state, |
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| 160 | 160 | | the attorney general may institute in a district court in Travis |
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| 161 | 161 | | County or in a county served by the law enforcement agency or |
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| 162 | 162 | | attorney representing the state, as applicable, a suit for |
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| 163 | 163 | | injunctive relief, to recover a civil penalty, or for both |
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| 164 | 164 | | injunctive relief and a civil penalty if the results of an audit or |
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| 165 | 165 | | investigation under Article 59.061 indicate that the law |
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| 166 | 166 | | enforcement agency or attorney representing the state has knowingly |
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| 167 | 167 | | violated or is knowingly violating a provision of this chapter |
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| 168 | 168 | | relating to the disposition of proceeds or property received under |
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| 169 | 169 | | this chapter. |
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| 170 | 170 | | (b) On application for injunctive relief and a finding that |
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| 171 | 171 | | the law enforcement agency or attorney representing the state is |
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| 172 | 172 | | knowingly violating a provision of this chapter relating to the |
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| 173 | 173 | | disposition of proceeds or property received under this chapter, |
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| 174 | 174 | | the district court shall grant the injunctive relief the facts may |
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| 175 | 175 | | warrant, without requirement for bond. |
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| 176 | 176 | | (c) A law enforcement agency or attorney representing the |
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| 177 | 177 | | state who knowingly commits a violation described by Subsection (a) |
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| 178 | 178 | | is liable to the state for a civil penalty in an amount not to exceed |
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| 179 | 179 | | $100,000 as determined by the district court to be appropriate for |
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| 180 | 180 | | the nature and seriousness of the violation. In determining an |
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| 181 | 181 | | appropriate penalty for the violation, the court shall consider: |
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| 182 | 182 | | (1) any previous violations committed by the agency or |
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| 183 | 183 | | attorney; |
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| 184 | 184 | | (2) the seriousness of the violation, including the |
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| 185 | 185 | | nature, circumstances, extent, and gravity of the violation; |
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| 186 | 186 | | (3) the demonstrated good faith of the agency or |
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| 187 | 187 | | attorney; and |
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| 188 | 188 | | (4) the amount necessary to deter future violations. |
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| 189 | 189 | | (d) If the attorney general brings a suit under this article |
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| 190 | 190 | | and an injunction is granted or a civil penalty is imposed, the |
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| 191 | 191 | | attorney general may recover reasonable expenses, court costs, |
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| 192 | 192 | | investigative costs, and attorney's fees. |
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| 193 | 193 | | (e) Notwithstanding any other provision of this article, a |
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| 194 | 194 | | law enforcement agency or attorney representing the state ordered |
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| 195 | 195 | | to pay a civil penalty, expense, cost, or fee under this article |
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| 196 | 196 | | shall make the payment out of money available in any fund |
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| 197 | 197 | | established by the agency or attorney, as applicable, for the |
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| 198 | 198 | | purpose of administering proceeds or property received under this |
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| 199 | 199 | | chapter. If sufficient money is not available to make payment in |
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| 200 | 200 | | full at the time the court enters an order requiring payment, the |
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| 201 | 201 | | agency or attorney shall continue to make payments out of money |
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| 202 | 202 | | available in any fund described by this subsection until the |
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| 203 | 203 | | payment is made in full. |
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| 204 | 204 | | (f) A civil penalty collected under this article shall be |
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| 205 | 205 | | deposited to the credit of the drug court account in the general |
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| 206 | 206 | | revenue fund to help fund drug court programs established under |
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| 207 | 207 | | Chapter 469, Health and Safety Code. |
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| 208 | 208 | | (g) A law enforcement agency or attorney representing the |
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| 209 | 209 | | state is immune from liability under this article if the agency or |
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| 210 | 210 | | attorney reasonably relied on: |
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| 211 | 211 | | (1) the advice, consent, or approval of an entity that |
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| 212 | 212 | | conducts an audit of the agency or attorney under this chapter; or |
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| 213 | 213 | | (2) a written opinion of the attorney general relating |
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| 214 | 214 | | to: |
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| 215 | 215 | | (A) the statute or other provision of law the |
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| 216 | 216 | | agency or attorney is alleged to have knowingly violated; or |
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| 217 | 217 | | (B) a fact situation that is substantially |
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| 218 | 218 | | similar to the fact situation in which the agency or attorney is |
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| 219 | 219 | | involved. |
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| 220 | 220 | | SECTION 4. The changes in law made by this Act in amending |
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| 221 | 221 | | Article 59.03, Code of Criminal Procedure, apply only to property |
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| 222 | 222 | | seized on or after the effective date of this Act. Property seized |
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| 223 | 223 | | before the effective date of this Act is covered by the law in |
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| 224 | 224 | | effect when the property was seized, and the former law is continued |
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| 225 | 225 | | in effect for that purpose. For purposes of this section, property |
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| 226 | 226 | | was seized before the effective date of this Act if any portion of |
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| 227 | 227 | | the property was seized before that date. |
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| 228 | 228 | | SECTION 5. Except as provided by Section 6 of this Act, the |
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| 229 | 229 | | changes in law made by this Act in amending Article 59.06, Code of |
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| 230 | 230 | | Criminal Procedure, apply to the disposition or use, on or after the |
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| 231 | 231 | | effective date of this Act, of proceeds or property received by a |
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| 232 | 232 | | law enforcement agency or attorney representing the state under |
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| 233 | 233 | | Chapter 59, Code of Criminal Procedure, regardless of whether the |
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| 234 | 234 | | receipt of the proceeds or property occurred before, on, or after |
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| 235 | 235 | | the effective date of this Act. |
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| 236 | 236 | | SECTION 6. The changes in law made by this Act in amending |
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| 237 | 237 | | Article 59.06(g), Code of Criminal Procedure, and adding Articles |
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| 238 | 238 | | 59.061 and 59.062, Code of Criminal Procedure, apply to any audit |
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| 239 | 239 | | performed on or after the effective date of this Act. |
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| 240 | 240 | | SECTION 7. This Act takes effect September 1, 2011. |
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