85R12328 AJZ-D
By: Hall S.B. No. 1714
A BILL TO BE ENTITLED
AN ACT
relating to the expenditure of proceeds and property from and the
state's burden of proof in asset forfeiture proceedings under the
Code of Criminal Procedure.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.02, Code of Criminal Procedure, is
amended by amending Subsection (c) and adding Subsection (c-1) to
read as follows:
(c) An owner or interest holder's interest in property may
not be forfeited under this chapter if the owner or interest holder
[proves by a preponderance of the evidence that the owner or
interest holder] acquired and perfected the interest:
(1) before or during the act or omission giving rise to
forfeiture or, if the property is real property, the owner or
interest holder [he] acquired an ownership interest, security
interest, or lien interest before a lis pendens notice was filed
under Article 59.04(g), [of this code] and did not know or should
not reasonably have known of the act or omission giving rise to the
forfeiture or that it was likely to occur at or before the time of
acquiring and perfecting the interest or, if the property is real
property, at or before the time of acquiring the ownership
interest, security interest, or lien interest; or
(2) after the act or omission giving rise to the
forfeiture, but before the seizure of the property, and only if the
owner or interest holder:
(A) was, at the time that the interest in the
property was acquired, an owner or interest holder for value; and
(B) was without reasonable cause to believe that
the property was contraband and did not purposefully avoid learning
that the property was contraband.
(c-1) The state has the burden of proving by clear and
convincing evidence that the circumstances described by Subsection
(c) do not apply to property that is subject to seizure and
forfeiture under this chapter.
SECTION 2. Article 59.02(h), Code of Criminal Procedure, is
amended by amending Subdivision (1) and adding Subdivision (1-a) to
read as follows:
(1) An owner or interest holder's interest in property
may not be forfeited under this chapter if [at the forfeiture
hearing the owner or interest holder proves by a preponderance of
the evidence that] the owner or interest holder was not a party to
the offense giving rise to the forfeiture and [that] the
contraband:
(A) was stolen from the owner or interest holder
before being used in the commission of the offense giving rise to
the forfeiture;
(B) was purchased with:
(i) money stolen from the owner or interest
holder; or
(ii) proceeds from the sale of property
stolen from the owner or interest holder; or
(C) was used or intended to be used without the
effective consent of the owner or interest holder in the commission
of the offense giving rise to the forfeiture.
(1-a) The state has the burden of proving by clear and
convincing evidence that the circumstances described by
Subdivision (1) do not apply to property that is subject to seizure
and forfeiture under this chapter.
SECTION 3. Article 59.021(d), Code of Criminal Procedure,
is amended to read as follows:
(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 clear and
convincing [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.
SECTION 4. Article 59.05(b), Code of Criminal Procedure, is
amended to read as follows:
(b) All cases under this chapter shall proceed to trial in
the same manner as in other civil cases. The state has the burden of
proving by clear and convincing [a preponderance of the] evidence
that property is subject to forfeiture.
SECTION 5. Article 59.06, Code of Criminal Procedure, is
amended by amending Subsections (d) and (d-1) and adding Subsection
(d-5) to read as follows:
(d) Proceeds and property 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 only after a budget for
the expenditure of the proceeds and property has been submitted to
the commissioners court or governing body of the municipality and
the commissioners court or governing body approves the expenditure
in the manner provided by Subsection (d-5). 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. 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 award of proceeds or property is made
[are awarded].
(d-1) The head of a law enforcement 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) pay for a recurring expense [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) pay [increase] a salary [, expense, or allowance]
for an employee of the law enforcement agency or attorney
representing the state [who is budgeted by the commissioners court
or governing body of the municipality unless the commissioners
court or governing body first approves the increase].
(d-5) A commissioners court or governing body of a
municipality may approve an expenditure of proceeds or property
under this chapter only at an open meeting under Chapter 551,
Government Code. Each expenditure must be approved by a separate
vote of the commissioners court or governing body. The
commissioners court or governing body shall include in the written
notice of any meeting in which the commissioners court or governing
body will consider an expenditure described by this subsection:
(1) a description of the expenditure;
(2) the purpose of the expenditure; and
(3) the amount of the expenditure.
SECTION 6. Article 59.061, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(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.
(a-1) At least annually, the state auditor shall perform an
audit of each law enforcement agency or attorney representing the
state, in accordance with this article and Chapter 321, Government
Code, that is related to the seizure, forfeiture, receipt, and
specific expenditure of proceeds and property received under this
chapter by the agency or attorney.
SECTION 7. The changes in law made by this Act to Article
59.06, Code of Criminal Procedure, apply only to the expenditure of
proceeds or property by a law enforcement agency or attorney
representing the state on or after the effective date of this Act.
The expenditure of proceeds or property by a law enforcement agency
or attorney representing the state before the effective date of
this Act is governed by the law in effect on the date the
expenditure was made, and the former law is continued in effect for
that purpose.
SECTION 8. The changes in law made by this Act to Articles
59.02, 59.021, and 59.05, Code of Criminal Procedure, apply only to
a forfeiture proceeding that begins on or after the effective date
of this Act. A forfeiture proceeding that begins before the
effective date of this Act is governed by the law in effect on the
date the proceeding begins, and the former law is continued in
effect for that purpose.
SECTION 9. This Act takes effect September 1, 2017.