83R22322 MAW-F
By: Sheets H.B. No. 3138
Substitute the following for H.B. No. 3138:
By: Herrero C.S.H.B. No. 3138
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution of the offense of money laundering and
to the forfeiture of certain contraband.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 59.01(1) and (2), Code of Criminal
Procedure, are amended to read as follows:
(1) "Attorney representing the state" means the
prosecutor with felony jurisdiction in the county in which a
forfeiture proceeding is held under this chapter or, in a
proceeding for forfeiture of contraband as defined under
Subdivision (2)(B)(v) of this article, the city attorney of a
municipality if the property is seized in that municipality by a
peace officer employed by that municipality and the governing body
of the municipality has approved procedures for the city attorney
acting in a forfeiture proceeding. In a proceeding for forfeiture
of contraband as defined under Subdivision (2)(B)(vi)
[(2)(B)(vii)] of this article, the term includes the attorney
general.
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
20.05, 21.11, 38.04, or Chapter 43, 20A, 29, 30, 31, 32, 33, 33A, or
35, Penal Code;
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
(iv) any offense under Chapter 49, Penal
Code, that is punishable as a felony of the third degree or state
jail felony, if the defendant has been previously convicted three
times of an offense under that chapter;
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 151 [153],
Finance Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) [any felony under Chapter 152, Finance
Code;
[(vii)] any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(vii) [(viii)] a Class B misdemeanor under
Chapter 522, Business & Commerce Code;
(viii) [(ix)] a Class A misdemeanor under
Section 306.051, Business & Commerce Code;
(ix) [(x)] any offense under Section 42.10,
Penal Code;
(x) [(xi)] any offense under Section
46.06(a)(1) or 46.14, Penal Code;
(xi) [(xii)] any offense under Chapter 71,
Penal Code; or
(xii) [(xiii)] any offense under Section
20.05, Penal Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(vii), (ix) [(B)(viii)], (x),
or (xi)[, or (xii)] of this subdivision, or a crime of violence;
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(vii), (ix)
[(B)(viii)], (x), or (xi)[, or (xii)] of this subdivision, or a
crime of violence;
(E) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 15.031 or
43.25, Penal Code; or
(F) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 20A.02 or
Chapter 43, Penal Code.
SECTION 2. Article 59.011, Code of Criminal Procedure, is
amended to read as follows:
Art. 59.011. ELECTION OF FORFEITURE PROCEEDING. If
property described by Article 59.01(2)(B)(ix), (x), or
[59.01(2)(B)(x),] (xi)[, or (xii)] is subject to forfeiture under
this chapter and Article 18.18, the attorney representing the state
may proceed under either this chapter or that article.
SECTION 3. Chapter 59, Code of Criminal Procedure, is
amended by adding Articles 59.021, 59.022, 59.023, and 59.024 to
read as follows:
Art. 59.021. FORFEITURE OF SUBSTITUTE PROPERTY. (a) In
this article, "substitute property" means property:
(1) that is not contraband; and
(2) that is owned by a person who is or was the owner
of, or has or had an interest in, contraband with an aggregate value
of $200,000 or more.
(b) Substitute property may be seized under authority of a
search warrant issued under Subsection (c) if property that is
contraband:
(1) can no longer be located after the exercise of
reasonable diligence;
(2) has been transferred, conveyed, sold to, or
deposited with a person other than the owner or interest holder;
(3) is not within the jurisdiction of the court;
(4) has substantially diminished in value;
(5) has been commingled with other property and cannot
be readily distinguished or separated; or
(6) is proceeds described by Article 59.01(2)(C) and
was used to acquire other property that is not within the
jurisdiction of the court.
(c) A district court may issue a search warrant authorizing
a peace officer to seize substitute property if the officer submits
an affidavit that states:
(1) probable cause for the commission of an offense
giving rise to forfeiture of contraband;
(2) a description of the contraband involved and the
estimated current fair market value of the substitute property to
be seized;
(3) the reasons the contraband is unavailable for
forfeiture;
(4) probable cause to believe that the owner of the
substitute property owned or had an interest in contraband with an
aggregate value of $200,000 or more in connection with the
commission of an underlying offense giving rise to the forfeiture;
and
(5) that due diligence has been exercised in
identifying the minimum amount of substitute property necessary to
approximate the estimated highest fair market value of the
contraband during the period in which the owner of the substitute
property owned, or had an interest in, the contraband.
(d) After seizure of the substitute property, the
disposition shall proceed as other cases in this chapter except
that the attorney representing the state must prove by a
preponderance of the evidence:
(1) that the contraband described by Subsection (b)
was subject to seizure and forfeiture under this chapter;
(2) the highest fair market value of that contraband
during the period in which the owner of the substitute property
owned, or had an interest in, the contraband;
(3) the fair market value of the substitute property
at the time it was seized; and
(4) that the owner of the substitute property owned or
had an interest in contraband with an aggregate value of $200,000 or
more in connection with the commission of an underlying offense
giving rise to the forfeiture.
(e) For purposes of determining the aggregate value of
contraband under Subsection (c) or (d), the owner or interest
holder is not required to have simultaneously owned or had an
interest in all of the property constituting contraband.
(f) If the fair market value of the substitute property
seized exceeds the highest fair market value of the contraband
described by Subsection (b) during the period in which the owner of
the substitute property owned, or had an interest in, the
contraband, the court shall make appropriate orders to ensure that
property equal in value to the excess is returned to the person or
persons from whom the substitute property was seized.
Art. 59.022. PROPERTY REMOVED FROM THIS STATE. (a) This
article applies to contraband, other than real property, that is
determined to be located outside of this state.
(b) A peace officer who identifies contraband described by
Subsection (a) shall provide the attorney representing the state a
sworn statement that identifies the contraband and the reasons the
contraband is subject to seizure. On receiving the sworn statement,
the attorney representing the state may file, in the name of the
state, a notice of intended forfeiture in a district court in:
(1) the county in which the contraband, or proceeds
used to acquire the contraband, was known to be situated before its
removal out of this state;
(2) the county in which any owner or possessor of the
contraband was prosecuted for an underlying offense for which the
property is subject to forfeiture;
(3) the county in which venue existed for prosecution
of an underlying offense for which the property is subject to
forfeiture; or
(4) Travis County.
(c) The attorney representing the state shall request that
citation be served on any person who owns or is in possession or
control of the contraband to which this article applies and, on
service in accordance with the Texas Rules of Civil Procedure, may
move to have the court order that the contraband be:
(1) returned or brought to the jurisdiction of the
court; or
(2) delivered to an agent of this state for
transportation to the jurisdiction of the court.
(d) The attorney representing the state is entitled to all
reasonable discovery in accordance with the Texas Rules of Civil
Procedure to assist in identifying and locating contraband
described by Subsection (a).
(e) If the court orders the return of contraband under this
article, the contraband, after return, is subject to seizure and
forfeiture as otherwise provided by this chapter.
(f) If it is found that any person after being served with a
citation under Subsection (c) has transported, concealed, disposed
of, or otherwise acted to prevent the seizure and forfeiture of
contraband described by Subsection (a), the court may:
(1) order the payment to the attorney representing the
state of costs incurred in investigating and identifying the
location of the contraband, including discovery costs, reasonable
attorney's fees, expert fees, other professional fees incurred by
the attorney, and travel expenses;
(2) enter a judgment for civil contempt and impose:
(A) a fine of not more than $10,000 or less than
$1,000;
(B) confinement in jail for a term of not more
than 30 days or less than 10 days; or
(C) both fine and confinement;
(3) enter a judgment of forfeiture of the person's
interest in the contraband;
(4) enter a judgment in the amount of the fair market
value of the contraband;
(5) impose a civil penalty of not more than $25,000 or
less than $1,000 for each item of contraband, or each separate fund,
of which the person transported, concealed, disposed, or otherwise
acted to prevent the seizure and forfeiture; or
(6) order any combination of Subdivisions (1) through
(5).
Art. 59.023. SUIT FOR PROCEEDS. (a) A peace officer who
identifies proceeds that are gained from the commission of an
offense listed in Article 59.01(2)(A) or (B) shall provide the
attorney representing the state with an affidavit that identifies
the amount of the proceeds and that states probable cause that the
proceeds are contraband subject to forfeiture. On receiving the
affidavit, the attorney representing the state may file for a
judgment in the amount of the proceeds in a district court in:
(1) the county in which the proceeds were gained;
(2) the county in which any owner or possessor of the
property was prosecuted for an underlying offense for which the
property is subject to forfeiture;
(3) the county in which venue existed for prosecution
of an underlying offense for which the property is subject to
forfeiture;
(4) the county in which the proceeds were seized; or
(5) Travis County.
(b) If the court determines that, based on an examination of
the affidavit described by Subsection (a), probable cause exists
for the suit to proceed, the court shall order that citation be
served on all defendants named in the suit in accordance with the
Texas Rules of Civil Procedure.
(c) Each person who is shown to have been a party to an
underlying offense for which the proceeds are subject to forfeiture
is jointly and severally liable in a suit under this article,
regardless of whether the person has been charged for the offense.
Art. 59.024. MULTIPLE RECOVERY PROHIBITED. The attorney
representing the state may proceed under Article 59.02, 59.021,
59.022, or 59.023, or any combination of those articles. If
property or proceeds are awarded or forfeited to the state under
this chapter for an underlying offense, a court may not award or
forfeit additional property or proceeds that would exceed the
highest fair market value of the contraband subject to forfeiture
for that offense. For purposes of this article, the highest fair
market value may be calculated at any time during the period in
which the applicable person owned, possessed, or had an interest in
the contraband.
SECTION 4. Article 59.06(p), Code of Criminal Procedure, is
amended to read as follows:
(p) Notwithstanding Subsection (a), and to the extent
necessary to protect the commission's ability to recover amounts
wrongfully obtained by the owner of the property and associated
damages and penalties to which the commission may otherwise be
entitled by law, the attorney representing the state shall transfer
to the Health and Human Services Commission all forfeited property
defined as contraband under Article 59.01(2)(B)(vi)
[59.01(2)(B)(vii)]. If the forfeited property consists of property
other than money or negotiable instruments, the attorney
representing the state may, if approved by the commission, sell the
property and deliver to the commission the proceeds from the sale,
minus costs attributable to the sale. The sale must be conducted in
a manner that is reasonably expected to result in receiving the fair
market value for the property.
SECTION 5. Section 34.01, Penal Code, is amended by
amending Subdivisions (1) and (4) and adding Subdivision (1-a) to
read as follows:
(1) "Bank Secrecy Act" means the Bank Secrecy Act (31
U.S.C. Section 5311 et seq.), and its implementing regulations set
forth at 31 C.F.R. Part 103.
(1-a) "Criminal activity" means any offense,
including any preparatory offense, that is:
(A) classified as a felony under the laws of this
state or the United States; [or]
(B) punishable by confinement for more than one
year under the laws of another state; or
(C) a violation of the Bank Secrecy Act.
(4) "Proceeds" means funds acquired or derived
directly or indirectly from, produced through, [or] realized
through, or used in the commission of:
(A) an act; or
(B) conduct that constitutes an offense under
Section 151.7032, Tax Code.
SECTION 6. Section 34.02(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if the person knowingly:
(1) acquires or maintains an interest in, conceals,
possesses, transfers, or transports the proceeds of criminal
activity;
(2) conducts, supervises, or facilitates a
transaction involving the proceeds of criminal activity;
(3) invests, expends, or receives, or offers to
invest, expend, or receive, the proceeds of criminal activity or
funds that the person believes are the proceeds of criminal
activity; [or]
(4) finances or invests or intends to finance or
invest funds that the person believes are intended to further the
commission of criminal activity; or
(5) conducts, supervises, or facilitates a
transaction in violation of the Bank Secrecy Act.
SECTION 7. (a) The change in law made by this Act to Chapter
59, Code of Criminal Procedure, applies only to the forfeiture of
property in relation to an offense committed on or after the
effective date of this Act. Forfeiture of property in relation to
an offense committed before the effective date of this Act is
governed by the law in effect when the offense was committed, and
the former law is continued in effect for that purpose.
(b) The change in law made by this Act to Chapter 34, Penal
Code, applies only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of
this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose.
(c) For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
SECTION 8. This Act takes effect September 1, 2013.