2017S0020-1 12/20/16
By: Huffman S.B. No. 401
A BILL TO BE ENTITLED
AN ACT
relating to the seizure of property by a peace officer.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.03, Code of Criminal Procedure, is
amended by adding Subsections (b-1) and (c-1) and amending
Subsection (c) to read as follows:
(b-1) If property is seized under this chapter without a
warrant, the peace officer making such seizure shall without
unnecessary delay, but not later than 48 hours after the seizure,
make application for a warrant pursuant to Article 18.01 setting
forth sufficient facts that such seizure was made in accordance
with Subsection (b). If no warrant is issued, the law enforcement
agency whose officer made the seizure shall return the property to
the owner or to the person found to be in possession of the property
at the time of the seizure or to another person who demonstrates an
interest in the property, as appropriate. If a proceeding is
commenced pursuant to Article 59.04, upon motion by an owner or
interest holder in the property and prior to final hearing, the
court shall determine whether the seizure of the property was made
in accordance with Subsection (b). If the court determines that the
seizure was not made in accordance with Subsection (b), the court
shall dismiss the proceeding and order the return of the property to
the owner or to the person found to be in possession of the property
at the time of the seizure or to another person who demonstrates an
interest in the property, as appropriate. Any order of return of
the property shall be stayed upon notice and perfection of an appeal
by the attorney representing the state of the determination by the
court.
(c) A peace officer who seizes property under this chapter
has custody of the property, subject only to replevy under Article
59.02 of this code or an order of a court. A peace officer who has
custody of property shall provide the attorney representing the
state with a copy of the warrant authorizing the seizure along with
[sworn statement that contains] a schedule of the property seized
and[,] an acknowledgment that the officer has seized the property[,
and a list of the officer's reasons for the seizure]. Not later
than 72 hours after the seizure, the peace officer shall:
(1) place the property under seal;
(2) remove the property to a place ordered by the
court; or
(3) require a law enforcement agency of the state or a
political subdivision to take custody of the property and move it to
a proper location.
(c-1) A law enforcement agency in custody of property seized
shall be liable for all associated storage costs.
SECTION 2. Article 59.04(b), Code of Criminal Procedure, is
amended to read as follows:
(b) A forfeiture proceeding commences under this chapter
when the attorney representing the state files a notice of the
seizure and intended forfeiture in the name of the state with the
clerk of the district court in the county in which the seizure is
made. The attorney representing the state must attach to the notice
the warrant authorizing the seizure pursuant to [peace officer's
sworn statement under] Article 59.03 of this code or, if the
property has been seized under Article 59.12(b), the statement of
the terms and amount of the depository account or inventory of
assets provided by the regulated financial institution to the peace
officer executing the warrant in the manner described by Article
59.12(b). Except as provided by Subsection (c) of this article, the
attorney representing the state shall cause certified copies of the
notice to be served on the following persons in the same manner as
provided for the service of process by citation in civil cases:
(1) the owner of the property; and
(2) any interest holder in the property.
SECTION 3. Article 59.05, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsection (h) 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.
(h) Upon dismissal of a proceeding under this chapter or a
determination by the court that the property or an interest in the
property is not forfeitable, the court may order the attorney
representing the state to pay court costs, including deposition
fees and reasonable attorney's fees, to an owner or interest holder
who makes a claim to the property in the proceeding.
SECTION 4. Articles 59.06(d-3) and (d-4), Code of Criminal
Procedure, are amended to read as follows:
(d-3) Except as otherwise provided by this article, an
expenditure of proceeds or property received under this chapter is
considered to be for a law enforcement purpose if the expenditure is
made for an activity of a law enforcement agency that relates to the
criminal and civil enforcement of the laws of this state, including
an expenditure made for:
(1) equipment, including vehicles, computers,
firearms, protective body armor, furniture, software, uniforms,
and maintenance equipment;
(2) supplies, including office supplies, mobile phone
and data account fees for employees, and Internet services;
(3) investigative and training-related travel
expenses, including payment for hotel rooms, airfare, meals, rental
of and fuel for a motor vehicle, and parking;
(4) conferences and training expenses, including fees
and materials;
(5) investigative costs, including payments to
informants and lab expenses;
(6) crime prevention and treatment programs;
(7) facility costs, including building purchase,
lease payments, remodeling and renovating, maintenance, and
utilities;
(8) witness-related costs, including travel and
security; [and]
(9) audit costs and fees, including audit preparation
and professional fees; and
(10) storage costs pursuant to Article 59.03(c-1).
(d-4) Except as otherwise provided by this article, an
expenditure of proceeds or property received under this chapter is
considered to be for an official purpose of an attorney's office if
the expenditure is made for an activity of an attorney or office of
an attorney representing the state that relates to the
preservation, enforcement, or administration of the laws of this
state, including an expenditure made for:
(1) equipment, including vehicles, computers, visual
aid equipment for litigation, firearms, body armor, furniture,
software, and uniforms;
(2) supplies, including office supplies, legal
library supplies and access fees, mobile phone and data account
fees for employees, and Internet services;
(3) prosecution and training-related travel expenses,
including payment for hotel rooms, airfare, meals, rental of and
fuel for a motor vehicle, and parking;
(4) conferences and training expenses, including fees
and materials;
(5) investigative costs, including payments to
informants and lab expenses;
(6) crime prevention and treatment programs;
(7) facility costs, including building purchase,
lease payments, remodeling and renovating, maintenance, and
utilities;
(8) legal fees, including court costs, witness fees,
and related costs, including travel and security, audit costs, and
professional fees; [and]
(9) state bar and legal association dues; and
(10) payment of costs and attorney's fees ordered to be
paid pursuant to Article 59.05(h).
SECTION 5. The changes in law made by this Act apply only to
a seizure of property that occurs on or after the effective date of
this Act. A seizure of property occurring before that date is
governed by the law in effect on the date the seizure was made, and
the former law is continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2017.