| 1 | 1 | | 84R1216 AJZ-D |
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| 2 | 2 | | By: Hinojosa S.B. No. 95 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to the state's burden of proof in certain criminal asset |
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| 8 | 8 | | forfeiture proceedings. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Article 59.021(d), Code of Criminal Procedure, |
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| 11 | 11 | | is amended to read as follows: |
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| 12 | 12 | | (d) After seizure of the substitute property, the |
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| 13 | 13 | | disposition shall proceed as other cases in this chapter except |
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| 14 | 14 | | that the attorney representing the state must prove by clear and |
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| 15 | 15 | | convincing [a preponderance of the] evidence: |
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| 16 | 16 | | (1) that the contraband described by Subsection (b) |
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| 17 | 17 | | was subject to seizure and forfeiture under this chapter; |
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| 18 | 18 | | (2) the highest fair market value of that contraband |
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| 19 | 19 | | during the period in which the owner of the substitute property |
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| 20 | 20 | | owned, or had an interest in, the contraband; |
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| 21 | 21 | | (3) the fair market value of the substitute property |
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| 22 | 22 | | at the time it was seized; and |
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| 23 | 23 | | (4) that the owner of the substitute property owned or |
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| 24 | 24 | | had an interest in contraband with an aggregate value of $200,000 or |
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| 25 | 25 | | more in connection with the commission of an underlying offense |
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| 26 | 26 | | giving rise to the forfeiture. |
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| 27 | 27 | | SECTION 2. Article 59.05(b), Code of Criminal Procedure, is |
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| 28 | 28 | | amended to read as follows: |
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| 29 | 29 | | (b) All cases under this chapter shall proceed to trial in |
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| 30 | 30 | | the same manner as in other civil cases. The state has the burden of |
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| 31 | 31 | | proving by clear and convincing [a preponderance of the] evidence |
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| 32 | 32 | | that property is subject to forfeiture. |
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| 33 | 33 | | SECTION 3. Section 12.1106(d), Parks and Wildlife Code, is |
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| 34 | 34 | | amended to read as follows: |
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| 35 | 35 | | (d) The court shall order the seized property: |
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| 36 | 36 | | (1) forfeited to the department if the court |
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| 37 | 37 | | determines by clear and convincing [a preponderance of the] |
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| 38 | 38 | | evidence that: |
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| 39 | 39 | | (A) the seized property is contraband and a |
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| 40 | 40 | | person pleaded guilty or nolo contendere to, was convicted of, or |
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| 41 | 41 | | was placed on deferred adjudication for: |
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| 42 | 42 | | (i) an offense under Section 66.006, |
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| 43 | 43 | | Section 66.2011, or Subchapter G, Chapter 43, of this code; or |
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| 44 | 44 | | (ii) a second or subsequent offense under |
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| 45 | 45 | | Section 61.022, 62.003, 62.004, or 62.005 of this code; or |
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| 46 | 46 | | (B) the seized property is contraband and no |
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| 47 | 47 | | person was arrested for an offense immediately after the warden or |
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| 48 | 48 | | officer seized the property; or |
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| 49 | 49 | | (2) released to the owner if: |
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| 50 | 50 | | (A) the person charged with an offense under |
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| 51 | 51 | | Section 66.006, Section 66.2011, or Subchapter G, Chapter 43, of |
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| 52 | 52 | | this code or a second or subsequent offense under Section 61.022, |
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| 53 | 53 | | 62.003, 62.004, or 62.005 of this code is acquitted or the charge is |
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| 54 | 54 | | dismissed; or |
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| 55 | 55 | | (B) the court determines that the seized property |
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| 56 | 56 | | is not contraband. |
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| 57 | 57 | | SECTION 4. The change in law made by this Act applies only |
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| 58 | 58 | | to a forfeiture proceeding that begins on or after the effective |
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| 59 | 59 | | date of this Act. A forfeiture proceeding that begins before the |
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| 60 | 60 | | effective date of this Act is governed by the law in effect on the |
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| 61 | 61 | | date the proceeding begins, and the former law is continued in |
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| 62 | 62 | | effect for that purpose. |
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| 63 | 63 | | SECTION 5. This Act takes effect September 1, 2015. |
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