Texas 2013 - 83rd Regular

Texas House Bill HB3138 Compare Versions

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1	1	83R22322 MAW-F
2	2	By: Sheets H.B. No. 3138
3	3	Substitute the following for H.B. No. 3138:
4	4	By: Herrero C.S.H.B. No. 3138
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the prosecution of the offense of money laundering and
10	10	to the forfeiture of certain contraband.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Articles 59.01(1) and (2), Code of Criminal
13	13	Procedure, are amended to read as follows:
14	14	(1) "Attorney representing the state" means the
15	15	prosecutor with felony jurisdiction in the county in which a
16	16	forfeiture proceeding is held under this chapter or, in a
17	17	proceeding for forfeiture of contraband as defined under
18	18	Subdivision (2)(B)(v) of this article, the city attorney of a
19	19	municipality if the property is seized in that municipality by a
20	20	peace officer employed by that municipality and the governing body
21	21	of the municipality has approved procedures for the city attorney
22	22	acting in a forfeiture proceeding. In a proceeding for forfeiture
23	23	of contraband as defined under Subdivision (2)(B)(vi)
24	24	[(2)(B)(vii)] of this article, the term includes the attorney
25	25	general.
26	26	(2) "Contraband" means property of any nature,
27	27	including real, personal, tangible, or intangible, that is:
28	28	(A) used in the commission of:
29	29	(i) any first or second degree felony under
30	30	the Penal Code;
31	31	(ii) any felony under Section 15.031(b),
32	32	20.05, 21.11, 38.04, or Chapter 43, 20A, 29, 30, 31, 32, 33, 33A, or
33	33	35, Penal Code;
34	34	(iii) any felony under The Securities Act
35	35	(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
36	36	(iv) any offense under Chapter 49, Penal
37	37	Code, that is punishable as a felony of the third degree or state
38	38	jail felony, if the defendant has been previously convicted three
39	39	times of an offense under that chapter;
40	40	(B) used or intended to be used in the commission
41	41	of:
42	42	(i) any felony under Chapter 481, Health
43	43	and Safety Code (Texas Controlled Substances Act);
44	44	(ii) any felony under Chapter 483, Health
45	45	and Safety Code;
46	46	(iii) a felony under Chapter 151 [153],
47	47	Finance Code;
48	48	(iv) any felony under Chapter 34, Penal
49	49	Code;
50	50	(v) a Class A misdemeanor under Subchapter
51	51	B, Chapter 365, Health and Safety Code, if the defendant has been
52	52	previously convicted twice of an offense under that subchapter;
53	53	(vi) [any felony under Chapter 152, Finance
54	54	Code;
55	55	[(vii)] any felony under Chapter 32, Human
56	56	Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
57	57	involves the state Medicaid program;
58	58	(vii) [(viii)] a Class B misdemeanor under
59	59	Chapter 522, Business & Commerce Code;
60	60	(viii) [(ix)] a Class A misdemeanor under
61	61	Section 306.051, Business & Commerce Code;
62	62	(ix) [(x)] any offense under Section 42.10,
63	63	Penal Code;
64	64	(x) [(xi)] any offense under Section
65	65	46.06(a)(1) or 46.14, Penal Code;
66	66	(xi) [(xii)] any offense under Chapter 71,
67	67	Penal Code; or
68	68	(xii) [(xiii)] any offense under Section
69	69	20.05, Penal Code;
70	70	(C) the proceeds gained from the commission of a
71	71	felony listed in Paragraph (A) or (B) of this subdivision, a
72	72	misdemeanor listed in Paragraph (B)(vii), (ix) [(B)(viii)], (x),
73	73	or (xi)[, or (xii)] of this subdivision, or a crime of violence;
74	74	(D) acquired with proceeds gained from the
75	75	commission of a felony listed in Paragraph (A) or (B) of this
76	76	subdivision, a misdemeanor listed in Paragraph (B)(vii), (ix)
77	77	[(B)(viii)], (x), or (xi)[, or (xii)] of this subdivision, or a
78	78	crime of violence;
79	79	(E) used to facilitate or intended to be used to
80	80	facilitate the commission of a felony under Section 15.031 or
81	81	43.25, Penal Code; or
82	82	(F) used to facilitate or intended to be used to
83	83	facilitate the commission of a felony under Section 20A.02 or
84	84	Chapter 43, Penal Code.
85	85	SECTION 2. Article 59.011, Code of Criminal Procedure, is
86	86	amended to read as follows:
87	87	Art. 59.011. ELECTION OF FORFEITURE PROCEEDING. If
88	88	property described by Article 59.01(2)(B)(ix), (x), or
89	89	[59.01(2)(B)(x),] (xi)[, or (xii)] is subject to forfeiture under
90	90	this chapter and Article 18.18, the attorney representing the state
91	91	may proceed under either this chapter or that article.
92	92	SECTION 3. Chapter 59, Code of Criminal Procedure, is
93	93	amended by adding Articles 59.021, 59.022, 59.023, and 59.024 to
94	94	read as follows:
95	95	Art. 59.021. FORFEITURE OF SUBSTITUTE PROPERTY. (a) In
96	96	this article, "substitute property" means property:
97	97	(1) that is not contraband; and
98	98	(2) that is owned by a person who is or was the owner
99	99	of, or has or had an interest in, contraband with an aggregate value
100	100	of $200,000 or more.
101	101	(b) Substitute property may be seized under authority of a
102	102	search warrant issued under Subsection (c) if property that is
103	103	contraband:
104	104	(1) can no longer be located after the exercise of
105	105	reasonable diligence;
106	106	(2) has been transferred, conveyed, sold to, or
107	107	deposited with a person other than the owner or interest holder;
108	108	(3) is not within the jurisdiction of the court;
109	109	(4) has substantially diminished in value;
110	110	(5) has been commingled with other property and cannot
111	111	be readily distinguished or separated; or
112	112	(6) is proceeds described by Article 59.01(2)(C) and
113	113	was used to acquire other property that is not within the
114	114	jurisdiction of the court.
115	115	(c) A district court may issue a search warrant authorizing
116	116	a peace officer to seize substitute property if the officer submits
117	117	an affidavit that states:
118	118	(1) probable cause for the commission of an offense
119	119	giving rise to forfeiture of contraband;
120	120	(2) a description of the contraband involved and the
121	121	estimated current fair market value of the substitute property to
122	122	be seized;
123	123	(3) the reasons the contraband is unavailable for
124	124	forfeiture;
125	125	(4) probable cause to believe that the owner of the
126	126	substitute property owned or had an interest in contraband with an
127	127	aggregate value of $200,000 or more in connection with the
128	128	commission of an underlying offense giving rise to the forfeiture;
129	129	and
130	130	(5) that due diligence has been exercised in
131	131	identifying the minimum amount of substitute property necessary to
132	132	approximate the estimated highest fair market value of the
133	133	contraband during the period in which the owner of the substitute
134	134	property owned, or had an interest in, the contraband.
135	135	(d) After seizure of the substitute property, the
136	136	disposition shall proceed as other cases in this chapter except
137	137	that the attorney representing the state must prove by a
138	138	preponderance of the evidence:
139	139	(1) that the contraband described by Subsection (b)
140	140	was subject to seizure and forfeiture under this chapter;
141	141	(2) the highest fair market value of that contraband
142	142	during the period in which the owner of the substitute property
143	143	owned, or had an interest in, the contraband;
144	144	(3) the fair market value of the substitute property
145	145	at the time it was seized; and
146	146	(4) that the owner of the substitute property owned or
147	147	had an interest in contraband with an aggregate value of $200,000 or
148	148	more in connection with the commission of an underlying offense
149	149	giving rise to the forfeiture.
150	150	(e) For purposes of determining the aggregate value of
151	151	contraband under Subsection (c) or (d), the owner or interest
152	152	holder is not required to have simultaneously owned or had an
153	153	interest in all of the property constituting contraband.
154	154	(f) If the fair market value of the substitute property
155	155	seized exceeds the highest fair market value of the contraband
156	156	described by Subsection (b) during the period in which the owner of
157	157	the substitute property owned, or had an interest in, the
158	158	contraband, the court shall make appropriate orders to ensure that
159	159	property equal in value to the excess is returned to the person or
160	160	persons from whom the substitute property was seized.
161	161	Art. 59.022. PROPERTY REMOVED FROM THIS STATE. (a) This
162	162	article applies to contraband, other than real property, that is
163	163	determined to be located outside of this state.
164	164	(b) A peace officer who identifies contraband described by
165	165	Subsection (a) shall provide the attorney representing the state a
166	166	sworn statement that identifies the contraband and the reasons the
167	167	contraband is subject to seizure. On receiving the sworn statement,
168	168	the attorney representing the state may file, in the name of the
169	169	state, a notice of intended forfeiture in a district court in:
170	170	(1) the county in which the contraband, or proceeds
171	171	used to acquire the contraband, was known to be situated before its
172	172	removal out of this state;
173	173	(2) the county in which any owner or possessor of the
174	174	contraband was prosecuted for an underlying offense for which the
175	175	property is subject to forfeiture;
176	176	(3) the county in which venue existed for prosecution
177	177	of an underlying offense for which the property is subject to
178	178	forfeiture; or
179	179	(4) Travis County.
180	180	(c) The attorney representing the state shall request that
181	181	citation be served on any person who owns or is in possession or
182	182	control of the contraband to which this article applies and, on
183	183	service in accordance with the Texas Rules of Civil Procedure, may
184	184	move to have the court order that the contraband be:
185	185	(1) returned or brought to the jurisdiction of the
186	186	court; or
187	187	(2) delivered to an agent of this state for
188	188	transportation to the jurisdiction of the court.
189	189	(d) The attorney representing the state is entitled to all
190	190	reasonable discovery in accordance with the Texas Rules of Civil
191	191	Procedure to assist in identifying and locating contraband
192	192	described by Subsection (a).
193	193	(e) If the court orders the return of contraband under this
194	194	article, the contraband, after return, is subject to seizure and
195	195	forfeiture as otherwise provided by this chapter.
196	196	(f) If it is found that any person after being served with a
197	197	citation under Subsection (c) has transported, concealed, disposed
198	198	of, or otherwise acted to prevent the seizure and forfeiture of
199	199	contraband described by Subsection (a), the court may:
200	200	(1) order the payment to the attorney representing the
201	201	state of costs incurred in investigating and identifying the
202	202	location of the contraband, including discovery costs, reasonable
203	203	attorney's fees, expert fees, other professional fees incurred by
204	204	the attorney, and travel expenses;
205	205	(2) enter a judgment for civil contempt and impose:
206	206	(A) a fine of not more than $10,000 or less than
207	207	$1,000;
208	208	(B) confinement in jail for a term of not more
209	209	than 30 days or less than 10 days; or
210	210	(C) both fine and confinement;
211	211	(3) enter a judgment of forfeiture of the person's
212	212	interest in the contraband;
213	213	(4) enter a judgment in the amount of the fair market
214	214	value of the contraband;
215	215	(5) impose a civil penalty of not more than $25,000 or
216	216	less than $1,000 for each item of contraband, or each separate fund,
217	217	of which the person transported, concealed, disposed, or otherwise
218	218	acted to prevent the seizure and forfeiture; or
219	219	(6) order any combination of Subdivisions (1) through
220	220	(5).
221	221	Art. 59.023. SUIT FOR PROCEEDS. (a) A peace officer who
222	222	identifies proceeds that are gained from the commission of an
223	223	offense listed in Article 59.01(2)(A) or (B) shall provide the
224	224	attorney representing the state with an affidavit that identifies
225	225	the amount of the proceeds and that states probable cause that the
226	226	proceeds are contraband subject to forfeiture. On receiving the
227	227	affidavit, the attorney representing the state may file for a
228	228	judgment in the amount of the proceeds in a district court in:
229	229	(1) the county in which the proceeds were gained;
230	230	(2) the county in which any owner or possessor of the
231	231	property was prosecuted for an underlying offense for which the
232	232	property is subject to forfeiture;
233	233	(3) the county in which venue existed for prosecution
234	234	of an underlying offense for which the property is subject to
235	235	forfeiture;
236	236	(4) the county in which the proceeds were seized; or
237	237	(5) Travis County.
238	238	(b) If the court determines that, based on an examination of
239	239	the affidavit described by Subsection (a), probable cause exists
240	240	for the suit to proceed, the court shall order that citation be
241	241	served on all defendants named in the suit in accordance with the
242	242	Texas Rules of Civil Procedure.
243	243	(c) Each person who is shown to have been a party to an
244	244	underlying offense for which the proceeds are subject to forfeiture
245	245	is jointly and severally liable in a suit under this article,
246	246	regardless of whether the person has been charged for the offense.
247	247	Art. 59.024. MULTIPLE RECOVERY PROHIBITED. The attorney
248	248	representing the state may proceed under Article 59.02, 59.021,
249	249	59.022, or 59.023, or any combination of those articles. If
250	250	property or proceeds are awarded or forfeited to the state under
251	251	this chapter for an underlying offense, a court may not award or
252	252	forfeit additional property or proceeds that would exceed the
253	253	highest fair market value of the contraband subject to forfeiture
254	254	for that offense. For purposes of this article, the highest fair
255	255	market value may be calculated at any time during the period in
256	256	which the applicable person owned, possessed, or had an interest in
257	257	the contraband.
258	258	SECTION 4. Article 59.06(p), Code of Criminal Procedure, is
259	259	amended to read as follows:
260	260	(p) Notwithstanding Subsection (a), and to the extent
261	261	necessary to protect the commission's ability to recover amounts
262	262	wrongfully obtained by the owner of the property and associated
263	263	damages and penalties to which the commission may otherwise be
264	264	entitled by law, the attorney representing the state shall transfer
265	265	to the Health and Human Services Commission all forfeited property
266	266	defined as contraband under Article 59.01(2)(B)(vi)
267	267	[59.01(2)(B)(vii)]. If the forfeited property consists of property
268	268	other than money or negotiable instruments, the attorney
269	269	representing the state may, if approved by the commission, sell the
270	270	property and deliver to the commission the proceeds from the sale,
271	271	minus costs attributable to the sale. The sale must be conducted in
272	272	a manner that is reasonably expected to result in receiving the fair
273	273	market value for the property.
274	274	SECTION 5. Section 34.01, Penal Code, is amended by
275	275	amending Subdivisions (1) and (4) and adding Subdivision (1-a) to
276	276	read as follows:
277	277	(1) "Bank Secrecy Act" means the Bank Secrecy Act (31
278	278	U.S.C. Section 5311 et seq.), and its implementing regulations set
279	279	forth at 31 C.F.R. Part 103.
280	280	(1-a) "Criminal activity" means any offense,
281	281	including any preparatory offense, that is:
282	282	(A) classified as a felony under the laws of this
283	283	state or the United States; [or]
284	284	(B) punishable by confinement for more than one
285	285	year under the laws of another state; or
286	286	(C) a violation of the Bank Secrecy Act.
287	287	(4) "Proceeds" means funds acquired or derived
288	288	directly or indirectly from, produced through, [or] realized
289	289	through, or used in the commission of:
290	290	(A) an act; or
291	291	(B) conduct that constitutes an offense under
292	292	Section 151.7032, Tax Code.
293	293	SECTION 6. Section 34.02(a), Penal Code, is amended to read
294	294	as follows:
295	295	(a) A person commits an offense if the person knowingly:
296	296	(1) acquires or maintains an interest in, conceals,
297	297	possesses, transfers, or transports the proceeds of criminal
298	298	activity;
299	299	(2) conducts, supervises, or facilitates a
300	300	transaction involving the proceeds of criminal activity;
301	301	(3) invests, expends, or receives, or offers to
302	302	invest, expend, or receive, the proceeds of criminal activity or
303	303	funds that the person believes are the proceeds of criminal
304	304	activity; [or]
305	305	(4) finances or invests or intends to finance or
306	306	invest funds that the person believes are intended to further the
307	307	commission of criminal activity; or
308	308	(5) conducts, supervises, or facilitates a
309	309	transaction in violation of the Bank Secrecy Act.
310	310	SECTION 7. (a) The change in law made by this Act to Chapter
311	311	59, Code of Criminal Procedure, applies only to the forfeiture of
312	312	property in relation to an offense committed on or after the
313	313	effective date of this Act. Forfeiture of property in relation to
314	314	an offense committed before the effective date of this Act is
315	315	governed by the law in effect when the offense was committed, and
316	316	the former law is continued in effect for that purpose.
317	317	(b) The change in law made by this Act to Chapter 34, Penal
318	318	Code, applies only to an offense committed on or after the effective
319	319	date of this Act. An offense committed before the effective date of
320	320	this Act is governed by the law in effect on the date the offense was
321	321	committed, and the former law is continued in effect for that
322	322	purpose.
323	323	(c) For purposes of this section, an offense was committed
324	324	before the effective date of this Act if any element of the offense
325	325	occurred before that date.
326	326	SECTION 8. This Act takes effect September 1, 2013.