Texas 2011 - 82nd Regular

Texas Senate Bill SB934 Compare Versions

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1	1	By: Williams S.B. No. 934
2	2	(Hilderbran)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the enforcement of tax laws; providing a criminal
8	8	penalty.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 13.13, Code of Criminal Procedure, is
11	11	amended to read as follows:
12	12	Art. 13.13. CONSPIRACY. Criminal conspiracy may be
13	13	prosecuted in the county where the conspiracy was entered into, in
14	14	the county where the conspiracy was agreed to be executed, or in any
15	15	county in which one or more of the conspirators does any act to
16	16	effect an object of the conspiracy. If the object of the conspiracy
17	17	is an offense classified as a felony under the Tax Code, regardless
18	18	of whether the offense was committed, the conspiracy may be
19	19	prosecuted in any county in which venue is proper under the Tax Code
20	20	for the offense. If a conspiracy was entered into outside this
21	21	State under circumstances that give this State jurisdiction to
22	22	prosecute the offender, the offender may be prosecuted in the
23	23	county where the conspiracy was agreed to be executed, [or] in the
24	24	county where any one of the conspirators was found, or in Travis
25	25	County.
26	26	SECTION 2. Article 13.21, Code of Criminal Procedure, is
27	27	amended to read as follows:
28	28	Art. 13.21. ORGANIZED CRIMINAL ACTIVITY. The offense of
29	29	engaging in organized criminal activity may be prosecuted in any
30	30	county in which any act is committed to effect an objective of the
31	31	combination or, if the prosecution is based on a criminal offense
32	32	classified as a felony under the Tax Code, in any county in which
33	33	venue is proper under the Tax Code for the offense.
34	34	SECTION 3. Chapter 13, Code of Criminal Procedure, is
35	35	amended by adding Article 13.35 to read as follows:
36	36	Art. 13.35. MONEY LAUNDERING. Money laundering may be
37	37	prosecuted in the county in which the offense was committed as
38	38	provided by Article 13.18 or, if the prosecution is based on a
39	39	criminal offense classified as a felony under the Tax Code, in any
40	40	county in which venue is proper under the Tax Code for the offense.
41	41	SECTION 4. Chapter 42, Code of Criminal Procedure, is
42	42	amended by adding Article 42.0182 to read as follows:
43	43	Art. 42.0182. FINDINGS REGARDING TAX FRAUD. (a) In the
44	44	trial of an offense under the Tax Code or an offense under the Penal
45	45	Code related to the administration of taxes, the state may file a
46	46	written request with the court in which the indictment or
47	47	information is pending for the court to make affirmative findings
48	48	regarding the commission of tax fraud as described by Subsection
49	49	(b). The state must provide a copy of the written request to the
50	50	defendant before the date the trial begins.
51	51	(b) If the state requests affirmative findings in the manner
52	52	required by Subsection (a), the court shall make the requested
53	53	affirmative findings and enter the findings in the papers in the
54	54	case if the court finds by clear and convincing evidence that:
55	55	(1) the defendant's failure to pay a tax or file a
56	56	report when due, as required by Title 2 or 3, Tax Code, was a result
57	57	of fraud or an intent to evade the tax;
58	58	(2) the defendant altered, destroyed, or concealed any
59	59	record, document, or thing, or presented to the comptroller any
60	60	altered or fraudulent record, document, or thing, or otherwise
61	61	engaged in fraudulent conduct for the apparent purpose of affecting
62	62	the course or outcome of an audit, investigation, redetermination,
63	63	or other proceeding before the comptroller; or
64	64	(3) the defendant's failure to file a report under
65	65	Chapter 162, Tax Code, or to pay a tax under that chapter when the
66	66	tax became due is attributable to fraud or an intent to evade the
67	67	application of Chapter 162, Tax Code, or a rule adopted under
68	68	Chapter 111 or 162, Tax Code.
69	69	SECTION 5. Section 403.012, Government Code, is amended to
70	70	read as follows:
71	71	Sec. 403.012. ACCEPTANCE OF FEDERAL MONEY OR PROPERTY.
72	72	(a) The comptroller may accept federal money for a state agency
73	73	not otherwise restricted by statute or by rider or special
74	74	provision in the General Appropriations Act, if the state agency
75	75	has certified to the comptroller that the agency will be
76	76	responsible for compliance with applicable federal and state law.
77	77	(b) The comptroller may accept money or property under a
78	78	federal equitable sharing program. In accepting the money or
79	79	property, the comptroller shall comply with federal program
80	80	requirements, including those governing accounting and the
81	81	permissible use of an award.
82	82	SECTION 6. Subsection (a), Section 411.109, Government
83	83	Code, is amended to read as follows:
84	84	(a) The comptroller is entitled to obtain from the
85	85	department criminal history record information maintained by the
86	86	department that the comptroller believes is necessary for the
87	87	enforcement or administration of Chapter 151, 152, [153,] 154, [or]
88	88	155, or 162, Tax Code, including criminal history record
89	89	information that relates to a person who is:
90	90	(1) an applicant for a permit under any of those
91	91	chapters;
92	92	(2) a permit holder under any of those chapters;
93	93	(3) an officer, director, stockholder owning 10
94	94	percent or more of the outstanding stock, partner, owner, or
95	95	managing employee of an applicant or permit holder under any of
96	96	those chapters that is a corporation, association, joint venture,
97	97	syndicate, partnership, or proprietorship;
98	98	(4) believed to have violated any of those chapters;
99	99	or
100	100	(5) being considered by the comptroller for employment
101	101	as a peace officer.
102	102	SECTION 7. Subdivision (4), Section 34.01, Penal Code, is
103	103	amended to read as follows:
104	104	(4) "Proceeds" means funds acquired or derived
105	105	directly or indirectly from, produced through, or realized through:
106	106	(A) an act; or
107	107	(B) conduct that constitutes an offense under
108	108	Section 151.7032, Tax Code.
109	109	SECTION 8. Subsection (a), Section 71.02, Penal Code, as
110	110	amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
111	111	(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
112	112	reenacted and amended to read as follows:
113	113	(a) A person commits an offense if, with the intent to
114	114	establish, maintain, or participate in a combination or in the
115	115	profits of a combination or as a member of a criminal street gang,
116	116	the person commits or conspires to commit one or more of the
117	117	following:
118	118	(1) murder, capital murder, arson, aggravated
119	119	robbery, robbery, burglary, theft, aggravated kidnapping,
120	120	kidnapping, aggravated assault, aggravated sexual assault, sexual
121	121	assault, forgery, deadly conduct, assault punishable as a Class A
122	122	misdemeanor, burglary of a motor vehicle, or unauthorized use of a
123	123	motor vehicle;
124	124	(2) any gambling offense punishable as a Class A
125	125	misdemeanor;
126	126	(3) promotion of prostitution, aggravated promotion
127	127	of prostitution, or compelling prostitution;
128	128	(4) unlawful manufacture, transportation, repair, or
129	129	sale of firearms or prohibited weapons;
130	130	(5) unlawful manufacture, delivery, dispensation, or
131	131	distribution of a controlled substance or dangerous drug, or
132	132	unlawful possession of a controlled substance or dangerous drug
133	133	through forgery, fraud, misrepresentation, or deception;
134	134	(6) any unlawful wholesale promotion or possession of
135	135	any obscene material or obscene device with the intent to wholesale
136	136	promote the same;
137	137	(7) any offense under Subchapter B, Chapter 43,
138	138	depicting or involving conduct by or directed toward a child
139	139	younger than 18 years of age;
140	140	(8) any felony offense under Chapter 32;
141	141	(9) any offense under Chapter 36;
142	142	(10) any offense under Chapter 34 or 35;
143	143	(11) any offense under Section 37.11(a);
144	144	(12) any offense under Chapter 20A;
145	145	(13) any offense under Section 37.10; [or]
146	146	(14) any offense under Section 38.06, 38.07, 38.09, or
147	147	38.11;
148	148	(15) [(14)] any offense under Section 42.10;
149	149	(16) [(14)] any offense under Section 46.06(a)(1) or
150	150	46.14; or
151	151	(17) any offense classified as a felony under the Tax
152	152	Code.
153	153	SECTION 9. Chapter 101, Tax Code, is amended by adding
154	154	Section 101.0021 to read as follows:
155	155	Sec. 101.0021. APPLICABILITY OF PENAL CODE. In addition to
156	156	Section 1.03, Penal Code, Sections 15.02 and 15.04, Penal Code, and
157	157	Title 11, Penal Code, apply to offenses prescribed by this code.
158	158	SECTION 10. Subchapter A, Chapter 111, Tax Code, is amended
159	159	by adding Section 111.00452 to read as follows:
160	160	Sec. 111.00452. EMPLOYMENT OF INVESTIGATORS. (a) In
161	161	addition to the authority granted by Section 111.0045, an
162	162	investigator employed under that section may investigate:
163	163	(1) any criminal offense under this code; or
164	164	(2) any criminal offense under any other law if the
165	165	offense relates directly or indirectly to a tax, fee, penalty, or
166	166	charge administered, collected, or enforced by the comptroller.
167	167	(b) An investigator commissioned by the comptroller as a
168	168	peace officer has the powers of a peace officer coextensive with the
169	169	boundaries of this state.
170	170	SECTION 11. Subsection (c), Section 111.006, Tax Code, is
171	171	amended to read as follows:
172	172	(c) The comptroller or the attorney general may:
173	173	(1) use information or records made confidential by
174	174	[provisions of] this title to enforce:
175	175	(A) [any provisions of] this title; or
176	176	(B) the criminal laws of this state or the United
177	177	States; or
178	178	(2) [may] authorize the [their] use of information or
179	179	records made confidential by this title in a judicial or an
180	180	administrative proceeding in which this state, another state, or
181	181	the federal government is a party.
182	182	SECTION 12. Section 111.061, Tax Code, is amended by adding
183	183	Subsection (c) to read as follows:
184	184	(c) The penalties provided by Subsection (b) are intended to
185	185	be remedial in nature and are provided for the protection of state
186	186	revenue and to reimburse the state for expenses incurred as a result
187	187	of fraud, including expenses incurred in conducting an
188	188	investigation.
189	189	SECTION 13. Subsections (a) and (b), Section 111.207, Tax
190	190	Code, are amended to read as follows:
191	191	(a) In determining the expiration date for a period when a
192	192	tax imposed by this title may be assessed, collected, or refunded,
193	193	the following periods are not considered:
194	194	(1) the period following the date of a tax payment made
195	195	under protest, but only if a lawsuit is timely filed in accordance
196	196	with Chapter 112;
197	197	(2) the period during which a judicial proceeding is
198	198	pending in a court of competent jurisdiction to determine the
199	199	amount of the tax due; [and]
200	200	(3) the period during which an administrative
201	201	redetermination or refund hearing is pending before the
202	202	comptroller; and
203	203	(4) the period during which an indictment or
204	204	information is pending for a felony offense related to the
205	205	administration of the Tax Code against any taxpayer or any person
206	206	personally liable or potentially personally liable for the payment
207	207	of the tax under Section 111.0611.
208	208	(b) The suspension of a period of limitation under
209	209	Subsection (a)(1), (2), or (3) [(a)] is limited to the issues that
210	210	were contested under those subdivisions [Subdivision (1), (2), or
211	211	(3) of that subsection].
212	212	SECTION 14. Subsection (a), Section 151.025, Tax Code, is
213	213	amended to read as follows:
214	214	(a) All sellers and all other persons storing, using, or
215	215	consuming in this state a taxable item purchased from a retailer
216	216	shall keep the following records in the form the comptroller
217	217	requires:
218	218	(1) records of all gross receipts, including
219	219	documentation in the form of receipts, shipping manifests,
220	220	invoices, and other pertinent papers, from each sale, rental,
221	221	lease, taxable service, and taxable labor transaction occurring
222	222	during each reporting period;
223	223	(2) records in the form of receipts, shipping
224	224	manifests, invoices, and other pertinent papers of all purchases of
225	225	taxable items from every source made during each reporting period;
226	226	[and]
227	227	(3) records in the form of receipts, shipping
228	228	manifests, invoices, and other pertinent papers that substantiate
229	229	each claimed deduction or exclusion authorized by law; and
230	230	(4) records in the form of sales receipts, invoices,
231	231	or other equivalent records showing all sales and use tax, and any
232	232	money represented to be sales and use tax, received or collected on
233	233	each sale, rental, lease, or service transaction during each
234	234	reporting period.
235	235	SECTION 15. The heading to Section 151.7032, Tax Code, is
236	236	amended to read as follows:
237	237	Sec. 151.7032. FAILURE TO PAY TAXES COLLECTED; CRIMINAL
238	238	PENALTY AND AGGREGATION OF AMOUNTS INVOLVED.
239	239	SECTION 16. Section 151.7032, Tax Code, is amended by
240	240	amending Subsection (b) and adding Subsection (c) to read as
241	241	follows:
242	242	(b) An offense under this section is:
243	243	(1) a Class C misdemeanor if the amount of the tax
244	244	collected and not paid is less than $50 [$10,000];
245	245	(2) a Class B misdemeanor if the amount of the tax
246	246	collected and not paid is $50 or more but less than $500;
247	247	(3) a Class A misdemeanor if the amount of the tax
248	248	collected and not paid is $500 or more but less than $1,500;
249	249	(4) a state jail felony if the amount of the tax
250	250	collected and not paid is $1,500 [$10,000] or more but less than
251	251	$20,000;
252	252	(5) [(3)] a felony of the third degree if the amount of
253	253	the tax collected and not paid is $20,000 or more but less than
254	254	$100,000; [and]
255	255	(6) [(4)] a felony of the second degree if the amount
256	256	of the tax collected and not paid is $100,000 or more but less than
257	257	$200,000; and
258	258	(7) a felony of the first degree if the amount of the
259	259	tax collected and not paid is $200,000 or more.
260	260	(c) When tax is collected and not paid in violation of
261	261	Subsection (a) pursuant to one scheme or continuous course of
262	262	conduct, the conduct may be considered as one offense and the
263	263	amounts aggregated in determining the grade of the offense.
264	264	SECTION 17. Subsection (b), Section 151.707, Tax Code, is
265	265	amended to read as follows:
266	266	(b) An offense under Subsection (a) [(a)(1) or (a)(2) of
267	267	this section] is:
268	268	(1) a Class C misdemeanor if the tax avoided by the use
269	269	of the exemption or resale certificate is less than $20;
270	270	(2) a Class B misdemeanor if the tax avoided by the use
271	271	of the exemption or resale certificate is $20 or more, but less than
272	272	$200;
273	273	(3) a Class A misdemeanor if the tax avoided by the use
274	274	of the exemption or resale certificate is $200 or more, but less
275	275	than $750;
276	276	(4) a felony of the third degree if the tax avoided by
277	277	the use of the exemption or resale certificate is $750 or more, but
278	278	less than $20,000; or
279	279	(5) a felony of the second degree if the tax avoided by
280	280	the use of the exemption or resale certificate is $20,000 or more.
281	281	SECTION 18. Subchapter L, Chapter 151, Tax Code, is amended
282	282	by adding Section 151.7075 to read as follows:
283	283	Sec. 151.7075. FAILURE TO PRODUCE CERTAIN RECORDS AFTER
284	284	USING RESALE CERTIFICATE; CRIMINAL PENALTY. (a) A person commits
285	285	an offense if the person intentionally fails to produce to the
286	286	comptroller records that document a taxpayer's taxable sale of
287	287	items that the taxpayer obtained using a resale certificate.
288	288	(b) The records to which Subsection (a) applies are records:
289	289	(1) required to be kept under Section 151.025; and
290	290	(2) requested by the comptroller under Section 151.023
291	291	that are not produced in the period required by that section.
292	292	(c) The items to which Subsection (a) applies are items the
293	293	sales of which are required to be reported to the comptroller under
294	294	Section 151.433, 154.212, or 155.105.
295	295	(d) An offense under this section is:
296	296	(1) a Class C misdemeanor if the tax avoided by the use
297	297	of the resale certificate is less than $20;
298	298	(2) a Class B misdemeanor if the tax avoided by the use
299	299	of the resale certificate is $20 or more but less than $200;
300	300	(3) a Class A misdemeanor if the tax avoided by the use
301	301	of the resale certificate is $200 or more but less than $750;
302	302	(4) a felony of the third degree if the tax avoided by
303	303	the use of the resale certificate is $750 or more but less than
304	304	$20,000; or
305	305	(5) a felony of the second degree if the tax avoided by
306	306	the use of the resale certificate is $20,000 or more.
307	307	(e) It is an affirmative defense to prosecution under this
308	308	section that the items listed for purchase on the resale
309	309	certificate had not been resold at the time of the comptroller's
310	310	request for records under Section 151.023.
311	311	(f) If conduct described by Subsection (a) is related to one
312	312	scheme or continuous course of conduct, the conduct may be
313	313	considered as one offense and the amounts of tax avoided may be
314	314	aggregated in determining the grade of the offense.
315	315	SECTION 19. Section 154.405, Tax Code, is amended by adding
316	316	Subsection (e) to read as follows:
317	317	(e) A forfeiture proceeding under this section is an in rem
318	318	proceeding.
319	319	SECTION 20. Section 154.406, Tax Code, is amended by
320	320	amending Subsection (a) and adding Subsection (d) to read as
321	321	follows:
322	322	(a) The comptroller may sell property forfeited to the state
323	323	at public or private sale in any commercially reasonable manner or
324	324	retain the property for official use by the comptroller's criminal
325	325	investigation division. Property retained for use under this
326	326	subsection may later be sold by the comptroller under this section.
327	327	(d) If an automobile or other vehicle seized under Section
328	328	154.403 is forfeited and retained by the comptroller under
329	329	Subsection (a), the comptroller is considered the owner under
330	330	Subtitle A, Title 7, Transportation Code. The Texas Department of
331	331	Motor Vehicles shall issue a certificate of title for the vehicle to
332	332	the comptroller. The comptroller may maintain, repair, use, and
333	333	operate the vehicle with money appropriated for current operations.
334	334	SECTION 21. Subchapter H, Chapter 154, Tax Code, is amended
335	335	by adding Section 154.407 to read as follows:
336	336	Sec. 154.407. PHOTOGRAPHIC EVIDENCE IN CASES INVOLVING
337	337	SEIZED CIGARETTES. (a) The comptroller may photograph cigarettes
338	338	seized under Section 154.403 before their sale under this
339	339	subchapter.
340	340	(b) In a proceeding arising out of this chapter, including a
341	341	criminal proceeding, the state is not required to produce the
342	342	actual cigarettes.
343	343	(c) The photographs are admissible in evidence under rules
344	344	of law governing the admissibility of photographs. The photographs
345	345	are as admissible in evidence as are the cigarettes themselves.
346	346	(d) A person's rights of discovery and inspection of
347	347	tangible physical evidence are satisfied if the photographs taken
348	348	under this section are made available to the person by the state on
349	349	order of any court or other entity having jurisdiction over the
350	350	proceeding.
351	351	SECTION 22. Section 155.145, Tax Code, is amended by adding
352	352	Subsection (e) to read as follows:
353	353	(e) A forfeiture proceeding under this section is an in rem
354	354	proceeding.
355	355	SECTION 23. Section 155.1451, Tax Code, is amended by
356	356	amending Subsection (a) and adding Subsection (d) to read as
357	357	follows:
358	358	(a) The comptroller may sell property forfeited to the state
359	359	at public or private sale in any commercially reasonable manner or
360	360	retain the property for official use by the comptroller's criminal
361	361	investigation division. Property retained for use under this
362	362	subsection may later be sold by the comptroller under this section.
363	363	(d) If an automobile or other vehicle seized under Section
364	364	155.143 is forfeited and retained by the comptroller under
365	365	Subsection (a), the comptroller is considered the owner under
366	366	Subtitle A, Title 7, Transportation Code. The Texas Department of
367	367	Motor Vehicles shall issue a certificate of title for the vehicle to
368	368	the comptroller. The comptroller may maintain, repair, use, and
369	369	operate the vehicle with money appropriated for current operations.
370	370	SECTION 24. Subchapter E, Chapter 155, Tax Code, is amended
371	371	by adding Section 155.146 to read as follows:
372	372	Sec. 155.146. PHOTOGRAPHIC EVIDENCE IN CASES INVOLVING
373	373	SEIZED TOBACCO PRODUCTS. (a) The comptroller may photograph
374	374	tobacco products seized under Section 155.143 before their sale
375	375	under this subchapter.
376	376	(b) In a proceeding arising out of this chapter, including a
377	377	criminal proceeding, the state is not required to produce the
378	378	actual tobacco products.
379	379	(c) The photographs are admissible in evidence under rules
380	380	of law governing the admissibility of photographs. The photographs
381	381	are as admissible in evidence as are the tobacco products
382	382	themselves.
383	383	(d) A person's rights of discovery and inspection of
384	384	tangible physical evidence are satisfied if the photographs taken
385	385	under this section are made available to the person by the state on
386	386	order of any court or other entity having jurisdiction over the
387	387	proceeding.
388	388	SECTION 25. Section 162.401, Tax Code, is amended by adding
389	389	Subsection (c) to read as follows:
390	390	(c) The penalties provided by Subsection (b) are intended to
391	391	be remedial in nature and are provided for the protection of state
392	392	revenue and to reimburse the state for expenses incurred as a result
393	393	of fraud, including expenses incurred in conducting an
394	394	investigation.
395	395	SECTION 26. Except as provided by Section 27 of this Act,
396	396	the changes in law made by this Act apply only to an offense
397	397	committed on or after the effective date of this Act. An offense
398	398	committed before the effective date of this Act is covered by the
399	399	law in effect when the offense was committed, and the former law is
400	400	continued in effect for that purpose. For purposes of this section,
401	401	an offense was committed before the effective date of this Act if
402	402	any element of the offense occurred before that date.
403	403	SECTION 27. The change in law made by this Act in amending
404	404	Article 13.13, Code of Criminal Procedure, applies only to a
405	405	criminal case in which the indictment or information is presented
406	406	to the court on or after the effective date of this Act. A criminal
407	407	case in which the indictment or information was presented to the
408	408	court before the effective date of this Act is governed by the law
409	409	in effect when the indictment or information was presented, and the
410	410	former law is continued in effect for that purpose.
411	411	SECTION 28. This Act applies only to a seizure of property
412	412	that occurs on or after the effective date of this Act. A seizure of
413	413	property that occurs before the effective date of this Act is
414	414	covered by the law in effect as it existed on the date the seizure
415	415	occurred, and the former law is continued in effect for that
416	416	purpose.
417	417	SECTION 29. This Act takes effect September 1, 2011.