Texas 2017 - 85th Regular

Texas Senate Bill SB1714 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R12328 AJZ-D
2	2	By: Hall S.B. No. 1714
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the expenditure of proceeds and property from and the
8	8	state's burden of proof in asset forfeiture proceedings under the
9	9	Code of Criminal Procedure.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Article 59.02, Code of Criminal Procedure, is
12	12	amended by amending Subsection (c) and adding Subsection (c-1) to
13	13	read as follows:
14	14	(c) An owner or interest holder's interest in property may
15	15	not be forfeited under this chapter if the owner or interest holder
16	16	[proves by a preponderance of the evidence that the owner or
17	17	interest holder] acquired and perfected the interest:
18	18	(1) before or during the act or omission giving rise to
19	19	forfeiture or, if the property is real property, the owner or
20	20	interest holder [he] acquired an ownership interest, security
21	21	interest, or lien interest before a lis pendens notice was filed
22	22	under Article 59.04(g), [of this code] and did not know or should
23	23	not reasonably have known of the act or omission giving rise to the
24	24	forfeiture or that it was likely to occur at or before the time of
25	25	acquiring and perfecting the interest or, if the property is real
26	26	property, at or before the time of acquiring the ownership
27	27	interest, security interest, or lien interest; or
28	28	(2) after the act or omission giving rise to the
29	29	forfeiture, but before the seizure of the property, and only if the
30	30	owner or interest holder:
31	31	(A) was, at the time that the interest in the
32	32	property was acquired, an owner or interest holder for value; and
33	33	(B) was without reasonable cause to believe that
34	34	the property was contraband and did not purposefully avoid learning
35	35	that the property was contraband.
36	36	(c-1) The state has the burden of proving by clear and
37	37	convincing evidence that the circumstances described by Subsection
38	38	(c) do not apply to property that is subject to seizure and
39	39	forfeiture under this chapter.
40	40	SECTION 2. Article 59.02(h), Code of Criminal Procedure, is
41	41	amended by amending Subdivision (1) and adding Subdivision (1-a) to
42	42	read as follows:
43	43	(1) An owner or interest holder's interest in property
44	44	may not be forfeited under this chapter if [at the forfeiture
45	45	hearing the owner or interest holder proves by a preponderance of
46	46	the evidence that] the owner or interest holder was not a party to
47	47	the offense giving rise to the forfeiture and [that] the
48	48	contraband:
49	49	(A) was stolen from the owner or interest holder
50	50	before being used in the commission of the offense giving rise to
51	51	the forfeiture;
52	52	(B) was purchased with:
53	53	(i) money stolen from the owner or interest
54	54	holder; or
55	55	(ii) proceeds from the sale of property
56	56	stolen from the owner or interest holder; or
57	57	(C) was used or intended to be used without the
58	58	effective consent of the owner or interest holder in the commission
59	59	of the offense giving rise to the forfeiture.
60	60	(1-a) The state has the burden of proving by clear and
61	61	convincing evidence that the circumstances described by
62	62	Subdivision (1) do not apply to property that is subject to seizure
63	63	and forfeiture under this chapter.
64	64	SECTION 3. Article 59.021(d), Code of Criminal Procedure,
65	65	is amended to read as follows:
66	66	(d) After seizure of the substitute property, the
67	67	disposition shall proceed as other cases in this chapter except
68	68	that the attorney representing the state must prove by clear and
69	69	convincing [a preponderance of the] evidence:
70	70	(1) that the contraband described by Subsection (b)
71	71	was subject to seizure and forfeiture under this chapter;
72	72	(2) the highest fair market value of that contraband
73	73	during the period in which the owner of the substitute property
74	74	owned, or had an interest in, the contraband;
75	75	(3) the fair market value of the substitute property
76	76	at the time it was seized; and
77	77	(4) that the owner of the substitute property owned or
78	78	had an interest in contraband with an aggregate value of $200,000 or
79	79	more in connection with the commission of an underlying offense
80	80	giving rise to the forfeiture.
81	81	SECTION 4. Article 59.05(b), Code of Criminal Procedure, is
82	82	amended to read as follows:
83	83	(b) All cases under this chapter shall proceed to trial in
84	84	the same manner as in other civil cases. The state has the burden of
85	85	proving by clear and convincing [a preponderance of the] evidence
86	86	that property is subject to forfeiture.
87	87	SECTION 5. Article 59.06, Code of Criminal Procedure, is
88	88	amended by amending Subsections (d) and (d-1) and adding Subsection
89	89	(d-5) to read as follows:
90	90	(d) Proceeds and property awarded under this chapter to a
91	91	law enforcement agency or to the attorney representing the state
92	92	may be spent by the agency or the attorney only after a budget for
93	93	the expenditure of the proceeds and property has been submitted to
94	94	the commissioners court or governing body of the municipality and
95	95	the commissioners court or governing body approves the expenditure
96	96	in the manner provided by Subsection (d-5). The budget must be
97	97	detailed and clearly list and define the categories of
98	98	expenditures, but may not list details that would endanger the
99	99	security of an investigation or prosecution. Expenditures are
100	100	subject to the audit and enforcement provisions established under
101	101	this chapter. A commissioners court or governing body of a
102	102	municipality may not use the existence of an award to offset or
103	103	decrease total salaries, expenses, and allowances that the agency
104	104	or the attorney receives from the commissioners court or governing
105	105	body at or after the time the award of proceeds or property is made
106	106	[are awarded].
107	107	(d-1) The head of a law enforcement agency or an attorney
108	108	representing the state may not use proceeds or property received
109	109	under this chapter to:
110	110	(1) contribute to a political campaign;
111	111	(2) make a donation to any entity, except as provided
112	112	by Subsection (d-2);
113	113	(3) pay expenses related to the training or education
114	114	of any member of the judiciary;
115	115	(4) pay any travel expenses related to attendance at
116	116	training or education seminars if the expenses violate generally
117	117	applicable restrictions established by the commissioners court or
118	118	governing body of the municipality, as applicable;
119	119	(5) purchase alcoholic beverages;
120	120	(6) pay for a recurring expense [make any expenditure
121	121	not approved by the commissioners court or governing body of the
122	122	municipality, as applicable, if the head of a law enforcement
123	123	agency or attorney representing the state holds an elective office
124	124	and:
125	125	[(A) the deadline for filing an application for a
126	126	place on the ballot as a candidate for reelection to that office in
127	127	the general primary election has passed and the person did not file
128	128	an application for a place on that ballot; or
129	129	[(B) during the person's current term of office,
130	130	the person was a candidate in a primary, general, or runoff election
131	131	for reelection to that office and was not the prevailing candidate
132	132	in that election]; or
133	133	(7) pay [increase] a salary [, expense, or allowance]
134	134	for an employee of the law enforcement agency or attorney
135	135	representing the state [who is budgeted by the commissioners court
136	136	or governing body of the municipality unless the commissioners
137	137	court or governing body first approves the increase].
138	138	(d-5) A commissioners court or governing body of a
139	139	municipality may approve an expenditure of proceeds or property
140	140	under this chapter only at an open meeting under Chapter 551,
141	141	Government Code. Each expenditure must be approved by a separate
142	142	vote of the commissioners court or governing body. The
143	143	commissioners court or governing body shall include in the written
144	144	notice of any meeting in which the commissioners court or governing
145	145	body will consider an expenditure described by this subsection:
146	146	(1) a description of the expenditure;
147	147	(2) the purpose of the expenditure; and
148	148	(3) the amount of the expenditure.
149	149	SECTION 6. Article 59.061, Code of Criminal Procedure, is
150	150	amended by amending Subsection (a) and adding Subsection (a-1) to
151	151	read as follows:
152	152	(a) The state auditor may at any time [perform an audit or]
153	153	conduct an investigation, in accordance with this article and
154	154	Chapter 321, Government Code, related to the seizure, forfeiture,
155	155	receipt, and specific expenditure of proceeds and property received
156	156	under this chapter.
157	157	(a-1) At least annually, the state auditor shall perform an
158	158	audit of each law enforcement agency or attorney representing the
159	159	state, in accordance with this article and Chapter 321, Government
160	160	Code, that is related to the seizure, forfeiture, receipt, and
161	161	specific expenditure of proceeds and property received under this
162	162	chapter by the agency or attorney.
163	163	SECTION 7. The changes in law made by this Act to Article
164	164	59.06, Code of Criminal Procedure, apply only to the expenditure of
165	165	proceeds or property by a law enforcement agency or attorney
166	166	representing the state on or after the effective date of this Act.
167	167	The expenditure of proceeds or property by a law enforcement agency
168	168	or attorney representing the state before the effective date of
169	169	this Act is governed by the law in effect on the date the
170	170	expenditure was made, and the former law is continued in effect for
171	171	that purpose.
172	172	SECTION 8. The changes in law made by this Act to Articles
173	173	59.02, 59.021, and 59.05, Code of Criminal Procedure, apply only to
174	174	a forfeiture proceeding that begins on or after the effective date
175	175	of this Act. A forfeiture proceeding that begins before the
176	176	effective date of this Act is governed by the law in effect on the
177	177	date the proceeding begins, and the former law is continued in
178	178	effect for that purpose.
179	179	SECTION 9. This Act takes effect September 1, 2017.