87R10122 AJZ-D
By: Moody H.B. No. 3555
A BILL TO BE ENTITLED
AN ACT
relating to the disposition and use of proceeds and property from
criminal asset forfeiture.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 59.05(f), Code of Criminal Procedure, is
amended to read as follows:
(f) On forfeiture to the state of an amount greater than
$2,500, the clerk of the court in which the forfeiture proceeding
was held is entitled to court costs in that proceeding as in other
civil proceedings unless the forfeiture violates federal
requirements for multijurisdictional task force cases authorized
under Chapter 362, Local Government Code. The procedure for
collecting the costs is the procedure established under
[Subsections (a) and (c),] Article 59.06(a) [59.06].
SECTION 2. Article 59.06, Code of Criminal Procedure, is
amended by amending Subsections (a), (d), (d-1), (d-2), (g), (l),
(s), and (t) and adding Subsection (c-5) to read as follows:
(a) Except as provided by Subsection (k), all forfeited
property 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]. The [If a local agreement has not
been executed, the] property 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 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 as follows:
(A) 50 percent of the funds in the state treasury
to the credit of the general revenue fund; and
(B) 50 percent of the funds to the credit of 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 the attorney's office.
(c-5) Notwithstanding any other provision of this chapter,
forfeited property or the proceeds from the sale of forfeited
property may not be transferred to a local or state law enforcement
agency.
(d) Proceeds 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 after a budget for the
expenditure of the proceeds has been submitted to the commissioners
court or governing body of the municipality. 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 proceeds are awarded.
(d-1) An [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) 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) 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-2) An [The head of a law enforcement agency or an]
attorney representing the state may use as an official purpose of
the [agency or] attorney proceeds or property received under this
chapter to make a donation to an entity that assists in:
(1) the detection, investigation, or prosecution of:
(A) criminal offenses; or
(B) instances of abuse, as defined by Section
261.001, Family Code;
(2) the provision of:
(A) mental health, drug, or rehabilitation
services; or
(B) services for victims or witnesses of criminal
offenses or instances of abuse described by Subdivision (1); or
(3) the provision of training or education related to
duties or services described by Subdivision (1) or (2).
(g)(1) All [law enforcement agencies and] attorneys
representing the state who receive proceeds or property under this
chapter shall account for the seizure, forfeiture, receipt, and
specific expenditure of all the proceeds and property in an audit,
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 end of the
state fiscal year [date on which the annual period that is the
subject of the audit ends].
(2) If a copy of the audit is not delivered to the
attorney general within the period required by Subdivision (1),
within five days after the end of the period the attorney general
shall notify the [law enforcement agency or the] attorney
representing the state of that fact. On a showing of good cause, the
attorney general may grant an extension permitting the [agency or]
attorney to deliver a copy of the audit after the period required by
Subdivision (1) and before the 76th day after the end of the state
fiscal year [date on which the annual period that is the subject of
the audit ends]. If the [law enforcement agency or the] attorney
representing the state fails to establish good cause for not
delivering the copy of the audit within the period required by
Subdivision (1) or fails to deliver a copy of an audit within the
extension period, the attorney general shall notify the comptroller
of that fact.
(3) On notice under Subdivision (2), the comptroller
shall perform the audit otherwise required by Subdivision (1). At
the conclusion of the audit, the comptroller shall forward a copy of
the audit to the attorney general. The [law enforcement agency or]
attorney representing the state is liable to the comptroller for
the costs of the comptroller in performing the audit.
(l) An [A law enforcement agency that, or an] attorney
representing the state who [,] does not receive proceeds or
property under this chapter during a state fiscal year [an annual
period] as described by Subsection (g) shall, not later than the
30th day after the date on which the state fiscal year [annual
period] ends, report to the attorney general that the [agency or]
attorney representing the state [, as appropriate,] did not receive
proceeds or property under this chapter during that fiscal year
[the annual period].
(s) Not later than April 30 of each year, the attorney
general shall develop a report based on information submitted by
[law enforcement agencies and] attorneys representing the state
under Subsection (g) detailing the total amount of funds forfeited,
or credited after the sale of forfeited property, in this state in
the preceding calendar year. The attorney general shall maintain
in a prominent location on the attorney general's publicly
accessible Internet website a link to the most recent annual report
developed under this subsection.
(t)(1) This subsection applies only to contraband for which
forfeiture is authorized with respect to an offense under Section
20.05, 20.06, 20.07, 43.04, or 43.05 or Chapter 20A, Penal Code.
(2) Notwithstanding any other provision of this
article, the gross amount credited to the special fund of the office
of the attorney representing the state [or of a law enforcement
agency under Subsection (c)] from the forfeiture of contraband
described by Subdivision (1) shall be:
(A) used to provide direct victim services by the
victim services division or other similar division of the office of
the attorney representing the state [or of a law enforcement
agency, as applicable]; or
(B) used by the office of the attorney
representing the state [or of the law enforcement agency] to cover
the costs of a contract with a local nonprofit organization to
provide direct services to crime victims.
(3) An expenditure of money in the manner required by
this subsection is considered to be for an official purpose of the
office of the attorney representing the state [or for a law
enforcement purpose, as applicable].
SECTION 3. Articles 59.061(c) and (d), Code of Criminal
Procedure, are amended to read as follows:
(c) If the results of an audit or investigation under this
article indicate that an [a law enforcement agency or] attorney
representing the state has knowingly violated or is knowingly
violating a provision of this chapter relating to the disposition
of proceeds or property received under this chapter, the state
auditor shall promptly notify the attorney general for the purpose
of initiating appropriate enforcement proceedings under Article
59.062.
(d) The [law enforcement agency or] attorney representing
the state shall reimburse the state auditor for costs incurred by
the state auditor in performing an audit under this article.
SECTION 4. Articles 59.062(a), (b), (c), (e), and (g), Code
of Criminal Procedure, are amended to read as follows:
(a) In the name of the state, the attorney general may
institute in a district court in Travis County or in a county served
by the [law enforcement agency or] attorney representing the state
[, as applicable,] a suit for injunctive relief, to recover a civil
penalty, or for both injunctive relief and a civil penalty if the
results of an audit or investigation under Article 59.061 indicate
that the [law enforcement agency or] attorney representing the
state has knowingly violated or is knowingly violating a provision
of this chapter relating to the disposition of proceeds or property
received under this chapter.
(b) On application for injunctive relief and a finding that
the [law enforcement agency or] attorney representing the state is
knowingly violating a provision of this chapter relating to the
disposition of proceeds or property received under this chapter,
the district court shall grant the injunctive relief the facts may
warrant, without requirement for bond.
(c) An [A law enforcement agency or] attorney representing
the state who knowingly commits a violation described by Subsection
(a) is liable to the state for a civil penalty in an amount not to
exceed $100,000 as determined by the district court to be
appropriate for the nature and seriousness of the violation. In
determining an appropriate penalty for the violation, the court
shall consider:
(1) any previous violations committed by the [agency
or] attorney;
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(3) the demonstrated good faith of the [agency or]
attorney; and
(4) the amount necessary to deter future violations.
(e) Notwithstanding any other provision of this article, an
[a law enforcement agency or] attorney representing the state
ordered to pay a civil penalty, expense, cost, or fee under this
article shall make the payment out of money available in any fund
established by the [agency or] attorney [, as applicable,] for the
purpose of administering proceeds or property received under this
chapter. If sufficient money is not available to make payment in
full at the time the court enters an order requiring payment, the
[agency or] attorney shall continue to make payments out of money
available in any fund described by this subsection until the
payment is made in full.
(g) An [A law enforcement agency or] attorney representing
the state is immune from liability under this article if the [agency
or] attorney reasonably relied on:
(1) the advice, consent, or approval of an entity that
conducts an audit of the [agency or] attorney under this chapter; or
(2) a written opinion of the attorney general relating
to:
(A) the statute or other provision of law the
[agency or] attorney is alleged to have knowingly violated; or
(B) a fact situation that is substantially
similar to the fact situation in which the [agency or] attorney is
involved.
SECTION 5. Articles 59.06(b), (b-1), (b-2), (c), (c-1),
(c-2), (c-3), (c-4), (d-3), (h), (i), (j), (m), (n), (o), (q), and
(r), Code of Criminal Procedure, are repealed.
SECTION 6. The change in law made by this Act in amending
Article 59.06, Code of Criminal Procedure, applies to the
disposition or use, on or after the effective date of this Act, of
forfeited property or proceeds from the sale of forfeited property
under Chapter 59, Code of Criminal Procedure, regardless of whether
the receipt of the property or proceeds occurred before, on, or
after the effective date of this Act.
SECTION 7. This Act takes effect September 1, 2021.