82R12521 SJM-F
By: Williams S.B. No. 1701
A BILL TO BE ENTITLED
AN ACT
relating to procedures for and evidence that may be presented at a
criminal asset forfeiture hearing and to the forfeiture of
substitute assets under certain circumstances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.05, Code of Criminal Procedure, is
amended by adding Subsections (b-1) and (b-2) and amending
Subsection (e) to read as follows:
(b-1) A rebuttable presumption that property is subject to
forfeiture is established if the state shows by a preponderance of
the evidence that:
(1) the conduct giving rise to the forfeiture
occurred; and
(2) the conduct giving rise to the forfeiture is the
only likely source of the property subject to forfeiture or
provides the only likely explanation for that property.
(b-2) In a hearing conducted under this article, a court may
not suppress evidence solely because the evidence was acquired
pursuant to a search or seizure that violated the rights of the
owner or interest holder under the Constitution of the United
States or of the State of Texas.
(e)(1) It is the intention of the legislature that asset
forfeiture is remedial in nature and not a form of punishment.
(2) If the court finds that all or any part of the
property is subject to forfeiture, the judge shall forfeit the
property to the state, with the attorney representing the state as
the agent for the state, except that if the court finds that the
nonforfeitable interest of an interest holder in the property is
valued in an amount greater than or substantially equal to the
present value of the property, the court shall order the property
released to the interest holder.
(3) If the court finds that the nonforfeitable
interest of an interest holder is valued in an amount substantially
less than the present value of the property and that the property is
subject to forfeiture, the court shall order the property forfeited
to the state with the attorney representing the state acting as the
agent of the state, and making necessary orders to protect the
nonforfeitable interest of the interest holder.
(4) The court may order the forfeiture of any other
property of a person that otherwise is not subject to forfeiture
under this article if the court finds that property of the person
that has been forfeited under this subsection, as a result of an act
or omission of the person:
(A) cannot be located on exercise of due
diligence;
(B) has been transferred, conveyed, or sold to or
deposited with a third party;
(C) has been placed beyond the jurisdiction of
the court;
(D) has been substantially diminished in value;
or
(E) has been commingled with other property and
cannot be separated without difficulty.
(5) In ordering the forfeiture of substitute assets
under Subdivision (4), the court may not order the forfeiture of
property with a value greater than the value of the property
originally ordered forfeited by the court.
(6) On final judgment of forfeiture, the attorney
representing the state shall dispose of the property in the manner
required by Article 59.06 of this code.
SECTION 2. (a) The change in law made by this Act in adding
Articles 59.05(b-1) and (b-2), Code of Criminal Procedure, applies
only to a forfeiture proceeding that begins on or after the
effective date of this Act. A forfeiture proceeding that begins
before the effective date of this Act is governed by the law in
effect on the date the proceeding begins, and the former law is
continued in effect for that purpose.
(b) The change in law made by this Act in amending Article
59.05(e), Code of Criminal Procedure, authorizes a court to order
the forfeiture of substitute assets for any property originally
ordered forfeited by the court, regardless of whether the original
order of forfeiture occurred before, on, or after the effective
date of this Act.
SECTION 3. This Act takes effect September 1, 2011.