85R3492 MAW-D
By: Huffines S.B. No. 663
A BILL TO BE ENTITLED
AN ACT
relating to disposition of proceeds and property from asset
forfeiture proceedings under the Code of Criminal Procedure.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.05(e), Code of Criminal Procedure, is
amended to read as follows:
(e) It is the intention of the legislature that asset
forfeiture is remedial in nature and not a form of punishment. If
the court finds that all or any part of the property is subject to
forfeiture, the judge shall forfeit the property to the state, with
the attorney representing the state as the agent for the state,
except that if the court finds that the nonforfeitable interest of
an interest holder in the property is valued in an amount greater
than or substantially equal to the present value of the property,
the court shall order the property released to the interest holder.
If the court finds that the nonforfeitable interest of an interest
holder is valued in an amount substantially less than the present
value of the property and that the property is subject to
forfeiture, the court shall order the property forfeited to the
state with the attorney representing the state acting as the agent
of the state, and making necessary orders to protect the
nonforfeitable interest of the interest holder. On final judgment
of forfeiture, [the attorney representing the state shall dispose
of] the property shall be disposed of in the manner required by
Article 59.06 [of this code].
SECTION 2. Articles 59.06(a), (c), (e), and (l), Code of
Criminal Procedure, are amended to read as follows:
(a) Except as provided by Subsection (c) [(k)], the attorney
representing the state shall transfer all forfeited property to the
comptroller. The comptroller shall dispose of [shall be
administered by the attorney representing the state, acting as the
agent of the state, in accordance with accepted accounting
practices and with the provisions of any local agreement entered
into between the attorney representing the state and law
enforcement agencies. If a local agreement has not been executed,]
the property at public auction [shall be sold] on the 75th day after
the date of the final judgment of forfeiture [at public auction
under the direction of the county sheriff, after notice of public
auction as provided by law for other sheriff's sales]. The
comptroller shall distribute the proceeds of the sale [shall be
distributed] as follows:
(1) to any interest holder to the extent of the
interest holder's nonforfeitable interest;
(2) after any distributions under Subdivision (1), if
the Title IV-D agency has filed a child support lien in the
forfeiture proceeding, to the Title IV-D agency in an amount not to
exceed the amount of child support arrearages identified in the
lien; and
(3) the balance, if any, after the deduction of court
costs to which a district court clerk is entitled under Article
59.05(f) and, after that deduction, the deduction of storage and
disposal costs, to be deposited not later than the 30th day after
the date of the sale in the compensation to victims of crime fund
[state treasury to the credit of the general revenue fund].
(c) All [If a local agreement exists between the attorney
representing the state and law enforcement agencies, all] money,
securities, negotiable instruments, or stocks or bonds shall be
transferred to the comptroller. The comptroller shall sell any
item that is not money and shall deposit any money received under
this article and the proceeds of any sale [, or things of value, or
proceeds from the sale of those items, shall be deposited], after
the deduction of court costs to which a district court clerk is
entitled under Article 59.05(f), in the compensation to victims of
crime fund [according to the terms of the agreement into one or more
of the following funds:
[(1) a special fund in the county treasury for the
benefit of the office of the attorney representing the state, to be
used by the attorney solely for the official purposes of his office;
[(2) a special fund in the municipal treasury if
distributed to a municipal law enforcement agency, to be used
solely for law enforcement purposes;
[(3) a special fund in the county treasury if
distributed to a county law enforcement agency, to be used solely
for law enforcement purposes; or
[(4) a special fund in the state law enforcement
agency if distributed to a state law enforcement agency, to be used
solely for law enforcement purposes].
(e) On the sale of contraband under this article, the
comptroller [appropriate state agency] shall issue a certificate of
title to the recipient if a certificate of title is required for the
property by other law.
(l) A law enforcement agency that[, or an attorney
representing the state who,] does not seize property under this
chapter during an annual period described by Subsection (g), and an
attorney representing the state who does not receive or transfer
proceeds or property under this chapter during an annual period
[as] described by Subsection (g), shall, not later than the 30th day
after the date on which the annual period ends, report to the
attorney general that the agency or attorney, as appropriate, did
not seize property or receive or transfer proceeds or property
under this chapter during the annual period.
SECTION 3. Article 59.06(g)(1), Code of Criminal Procedure,
is amended to read as follows:
(1) All law enforcement agencies that seize [and
attorneys representing the state who receive proceeds or] property
under this chapter shall account for the seizure in an audit. All
attorneys representing the state who appear in forfeiture
proceedings under this chapter shall account for the[, forfeiture,]
receipt[,] and transfer [specific expenditure] of all forfeited
[the] proceeds and property in an audit. The audits required by
this subsection must[, which is to] be performed annually by the
commissioners court or governing body of a municipality, as
appropriate. The annual period of the audit for a law enforcement
agency is the fiscal year of the appropriate county or municipality
and the annual period for an attorney representing the state is the
state fiscal year. The audit must be completed on a form provided
by the attorney general [and must include a detailed report and
explanation of all expenditures, including salaries and overtime
pay, officer training, investigative equipment and supplies, and
other items]. Certified copies of the audit shall be delivered by
the law enforcement agency or attorney representing the state to
the attorney general not later than the 60th day after the date on
which the annual period that is the subject of the audit ends.
SECTION 4. Article 59.061(a), Code of Criminal Procedure,
is amended 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 transfer [specific expenditure] of proceeds and
property received under this chapter.
SECTION 5. Article 59.08(b), Code of Criminal Procedure, is
amended to read as follows:
(b) If a final judgment is rendered concerning contraband,
money that has been placed in an interest-bearing bank account
under Subsection (a) of this article shall be distributed in the
same manner as proceeds are distributed under Article 59.06 [of
this code], with any interest being distributed in the same manner
[and used for the same purpose as the principal].
SECTION 6. The following provisions are repealed:
(1) Articles 59.06(b), (b-1), (b-2), (c-1), (c-2),
(c-3), (c-4), (d), (d-1), (d-2), (d-3), (d-4), (h), (i), (j), (k),
(m), (n), (o), (p), (q), and (r), 59.062(e), and 59.11, Code of
Criminal Procedure; and
(2) Section 24.377(c), Government Code.
SECTION 7. Articles 59.06(a) and (c), Code of Criminal
Procedure, as amended by this Act, apply to the disposition, on or
after the effective date of this Act, of proceeds or property
received by a law enforcement agency or attorney representing the
state under Chapter 59, Code of Criminal Procedure, regardless of
whether the receipt of the proceeds or property occurred before,
on, or after the effective date of this Act.
SECTION 8. Article 59.06(g), Code of Criminal Procedure, as
amended by this Act, applies to an audit performed on or after the
effective date of this Act in which all property is seized on or
after the effective date of this Act. An audit in which any
property was seized before the effective date of this Act is
governed by the law in effect on the date the property was seized,
and the former law is continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2017.