By: Whitmire S.B. No. 316
(In the Senate - Filed January 5, 2011; February 2, 2011,
read first time and referred to Committee on Criminal Justice;
March 7, 2011, reported favorably by the following vote: Yeas 7,
Nays 0; March 7, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to criminal asset forfeiture, the disposition of proceeds
and property from criminal asset forfeiture, and accountability for
that disposition; providing civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.03, Code of Criminal Procedure, is
amended by amending Subsection (d) and adding Subsection (e) to
read as follows:
(d) A person in the possession of property at the time a
peace officer seizes the property under this chapter may at the time
of seizure assert the person's interest in or right to the property.
A peace officer, including the peace officer who seizes the
property, [under this chapter] may not [at the time of seizure]
request, require, or in any manner induce any person, including a
person who asserts an interest in or right to the property [seized],
to execute a document purporting to waive the person's interest in
or rights to [the] property seized under this chapter.
(e) At any time before notice is filed under Article
59.04(b), an attorney representing the state may not request,
require, or in any manner induce any person, including a person who
asserts an interest in or right to property seized under this
chapter, to execute a document purporting to waive the person's
interest in or rights to the property.
SECTION 2. Article 59.06, Code of Criminal Procedure, is
amended by adding Subsections (c-2), (d-1), and (d-2) and amending
Subsections (d) and (g) to read as follows:
(c-2) Any postjudgment interest from money, securities,
negotiable instruments, stocks or bonds, or things of value, or
proceeds from the sale of those items, that are deposited in an
interest-bearing bank account under Subsection (c) shall be used
for the same purpose as the principal.
(d) Proceeds awarded under this chapter to a law enforcement
agency or to the attorney representing the state may be spent by the
agency or the attorney after a budget for the expenditure of the
proceeds has been submitted to the commissioners court or governing
body of the municipality. The budget must be detailed and clearly
list and define the categories of expenditures, but may not list
details that would endanger the security of an investigation or
prosecution. Expenditures are subject to the audit and enforcement
provisions established under this chapter [article]. A
commissioners court or governing body of a municipality may not use
the existence of an award to offset or decrease total salaries,
expenses, and allowances that the agency or the attorney receives
from the commissioners court or governing body at or after the time
the proceeds are awarded.
(d-1) The head of a law enforcement [the] agency or an
attorney representing the state may not use proceeds or property
received under this chapter to:
(1) contribute to a political campaign;
(2) make a donation to any entity, except as provided
by Subsection (d-2);
(3) pay expenses related to the training or education
of any member of the judiciary;
(4) pay any travel expenses related to attendance at
training or education seminars if the expenses violate generally
applicable restrictions established by the commissioners court or
governing body of the municipality, as applicable;
(5) purchase alcoholic beverages;
(6) make any expenditure not approved by the
commissioners court or governing body of the municipality, as
applicable, if the head of a law enforcement agency or attorney
representing the state holds an elective office and:
(A) the deadline for filing an application for a
place on the ballot as a candidate for reelection to that office in
the general primary election has passed and the person did not file
an application for a place on that ballot; or
(B) during the person's current term of office,
the person was a candidate in a primary, general, or runoff election
for reelection to that office and was not the prevailing candidate
in that election; or
(7) [the existence of an award to] increase a salary,
expense, or allowance for an employee of the law enforcement agency
or attorney representing the state [or agency] who is budgeted by
the commissioners court or governing body of the municipality
unless the commissioners court or governing body first approves the
increase [expenditure].
(d-2) The head of a law enforcement agency or an attorney
representing the state may use as an official purpose of the agency
or attorney proceeds or property received under this chapter to
make a donation to an entity that assists in:
(1) the detection, investigation, or prosecution of:
(A) criminal offenses; or
(B) instances of abuse, as defined by Section
261.001, Family Code;
(2) the provision of:
(A) mental health, drug, or rehabilitation
services; or
(B) services for victims or witnesses of criminal
offenses or instances of abuse described by Subdivision (1); or
(3) the provision of training or education related to
duties or services described by Subdivision (1) or (2).
(g)(1) All law enforcement agencies and attorneys
representing the state who receive proceeds or property under this
chapter shall account for the seizure, forfeiture, receipt, and
specific expenditure of all the [such] proceeds and property in an
audit, which is to be performed annually by the commissioners court
or governing body of a municipality, as appropriate. The annual
period of the audit for a law enforcement agency is the fiscal year
of the appropriate county or municipality and the annual period for
an attorney representing the state is the state fiscal year. The
audit must [shall] be completed on a form provided by the attorney
general and must include a detailed report and explanation of all
expenditures, including salaries and overtime pay, officer
training, investigative equipment and supplies, and other items.
Certified copies of the audit shall be delivered by the law
enforcement agency or attorney representing the state to [the
comptroller's office and] the attorney general not later than the
60th day after the date on which the annual period that is the
subject of the audit ends.
(2) If a copy of the audit is not delivered to the
attorney general within the period required by Subdivision (1),
within five days after the end of the period the attorney general
shall notify the law enforcement agency or the attorney
representing the state of that fact. On a showing of good cause,
the attorney general may grant an extension permitting the agency
or attorney to deliver a copy of the audit after the period required
by Subdivision (1) and before the 76th day after the date on which
the annual period that is the subject of the audit ends. If the law
enforcement agency or the attorney representing the state fails to
establish good cause for not delivering the copy of the audit within
the period required by Subdivision (1) or fails to deliver a copy of
an audit within the extension period, the attorney general shall
notify the comptroller of that fact.
(3) On notice under Subdivision (2) [this
subdivision], the comptroller shall perform the audit otherwise
required by Subdivision (1). At the conclusion of the audit, the
comptroller shall forward a copy of the audit to the attorney
general. The law enforcement agency or attorney representing the
state is liable to the comptroller for the costs of the comptroller
in performing the audit.
SECTION 3. Chapter 59, Code of Criminal Procedure, is
amended by adding Articles 59.061 and 59.062 to read as follows:
Art. 59.061. AUDITS AND INVESTIGATIONS. (a) The state
auditor may at any time perform an audit or conduct an
investigation, in accordance with this article and Chapter 321,
Government Code, related to the seizure, forfeiture, receipt, and
specific expenditure of proceeds and property received under this
chapter.
(b) The state auditor is entitled at any time to access any
book, account, voucher, confidential or nonconfidential report, or
other record of information, including electronic data, maintained
under Article 59.06, except that if the release of the applicable
information is restricted under state or federal law, the state
auditor may access the information only with the approval of a court
or federal administrative agency, as appropriate.
(c) If the results of an audit or investigation under this
article indicate that a law enforcement agency or attorney
representing the state has knowingly violated or is knowingly
violating a provision of this chapter relating to the disposition
of proceeds or property received under this chapter, the state
auditor shall promptly notify the attorney general for the purpose
of initiating appropriate enforcement proceedings under Article
59.062.
Art. 59.062. ENFORCEMENT. (a) In the name of the state,
the attorney general may institute in a district court in Travis
County or in a county served by the law enforcement agency or
attorney representing the state, as applicable, a suit for
injunctive relief, to recover a civil penalty, or for both
injunctive relief and a civil penalty if the results of an audit or
investigation under Article 59.061 indicate that the law
enforcement agency or attorney representing the state has knowingly
violated or is knowingly violating a provision of this chapter
relating to the disposition of proceeds or property received under
this chapter.
(b) On application for injunctive relief and a finding that
the law enforcement agency or attorney representing the state is
knowingly violating a provision of this chapter relating to the
disposition of proceeds or property received under this chapter,
the district court shall grant the injunctive relief the facts may
warrant, without requirement for bond.
(c) A law enforcement agency or attorney representing the
state who knowingly commits a violation described by Subsection (a)
is liable to the state for a civil penalty in an amount not to exceed
$100,000 as determined by the district court to be appropriate for
the nature and seriousness of the violation. In determining an
appropriate penalty for the violation, the court shall consider:
(1) any previous violations committed by the agency or
attorney;
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(3) the demonstrated good faith of the agency or
attorney; and
(4) the amount necessary to deter future violations.
(d) If the attorney general brings a suit under this article
and an injunction is granted or a civil penalty is imposed, the
attorney general may recover reasonable expenses, court costs,
investigative costs, and attorney's fees.
(e) Notwithstanding any other provision of this article, a
law enforcement agency or attorney representing the state ordered
to pay a civil penalty, expense, cost, or fee under this article
shall make the payment out of money available in any fund
established by the agency or attorney, as applicable, for the
purpose of administering proceeds or property received under this
chapter. If sufficient money is not available to make payment in
full at the time the court enters an order requiring payment, the
agency or attorney shall continue to make payments out of money
available in any fund described by this subsection until the
payment is made in full.
(f) A civil penalty collected under this article shall be
deposited to the credit of the drug court account in the general
revenue fund to help fund drug court programs established under
Chapter 469, Health and Safety Code.
(g) A law enforcement agency or attorney representing the
state is immune from liability under this article if the agency or
attorney reasonably relied on:
(1) the advice, consent, or approval of an entity that
conducts an audit of the agency or attorney under this chapter; or
(2) a written opinion of the attorney general relating
to:
(A) the statute or other provision of law the
agency or attorney is alleged to have knowingly violated; or
(B) a fact situation that is substantially
similar to the fact situation in which the agency or attorney is
involved.
SECTION 4. The changes in law made by this Act in amending
Article 59.03, Code of Criminal Procedure, apply only to property
seized on or after the effective date of this Act. Property seized
before the effective date of this Act is covered by the law in
effect when the property was seized, and the former law is continued
in effect for that purpose. For purposes of this section, property
was seized before the effective date of this Act if any portion of
the property was seized before that date.
SECTION 5. Except as provided by Section 6 of this Act, the
changes in law made by this Act in amending Article 59.06, Code of
Criminal Procedure, apply to the disposition or use, on or after the
effective date of this Act, of proceeds or property received by a
law enforcement agency or attorney representing the state under
Chapter 59, Code of Criminal Procedure, regardless of whether the
receipt of the proceeds or property occurred before, on, or after
the effective date of this Act.
SECTION 6. The changes in law made by this Act in amending
Subsection (g), Article 59.06, Code of Criminal Procedure, and
adding Articles 59.061 and 59.062, Code of Criminal Procedure,
apply to any audit performed on or after the effective date of this
Act.
SECTION 7. This Act takes effect September 1, 2011.
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