| 1 | 1 | | 87R10122 AJZ-D |
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| 2 | 2 | | By: Moody H.B. No. 3555 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to the disposition and use of proceeds and property from |
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| 8 | 8 | | criminal asset forfeiture. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Article 59.05(f), Code of Criminal Procedure, is |
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| 11 | 11 | | amended to read as follows: |
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| 12 | 12 | | (f) On forfeiture to the state of an amount greater than |
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| 13 | 13 | | $2,500, the clerk of the court in which the forfeiture proceeding |
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| 14 | 14 | | was held is entitled to court costs in that proceeding as in other |
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| 15 | 15 | | civil proceedings unless the forfeiture violates federal |
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| 16 | 16 | | requirements for multijurisdictional task force cases authorized |
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| 17 | 17 | | under Chapter 362, Local Government Code. The procedure for |
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| 18 | 18 | | collecting the costs is the procedure established under |
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| 19 | 19 | | [Subsections (a) and (c),] Article 59.06(a) [59.06]. |
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| 20 | 20 | | SECTION 2. Article 59.06, Code of Criminal Procedure, is |
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| 21 | 21 | | amended by amending Subsections (a), (d), (d-1), (d-2), (g), (l), |
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| 22 | 22 | | (s), and (t) and adding Subsection (c-5) to read as follows: |
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| 23 | 23 | | (a) Except as provided by Subsection (k), all forfeited |
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| 24 | 24 | | property shall be administered by the attorney representing the |
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| 25 | 25 | | state, acting as the agent of the state, in accordance with accepted |
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| 26 | 26 | | accounting practices [and with the provisions of any local |
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| 27 | 27 | | agreement entered into between the attorney representing the state |
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| 28 | 28 | | and law enforcement agencies]. The [If a local agreement has not |
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| 29 | 29 | | been executed, the] property shall be sold on the 75th day after the |
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| 30 | 30 | | date of the final judgment of forfeiture at public auction under the |
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| 31 | 31 | | direction of the county sheriff, after notice of public auction as |
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| 32 | 32 | | provided by law for other sheriff's sales. The proceeds of the sale |
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| 33 | 33 | | shall be distributed as follows: |
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| 34 | 34 | | (1) to any interest holder to the extent of the |
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| 35 | 35 | | interest holder's nonforfeitable interest; |
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| 36 | 36 | | (2) after any distributions under Subdivision (1), if |
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| 37 | 37 | | the Title IV-D agency has filed a child support lien in the |
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| 38 | 38 | | forfeiture proceeding, to the Title IV-D agency in an amount not to |
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| 39 | 39 | | exceed the amount of child support arrearages identified in the |
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| 40 | 40 | | lien; and |
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| 41 | 41 | | (3) the balance, if any, after the deduction of court |
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| 42 | 42 | | costs to which a district court clerk is entitled under Article |
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| 43 | 43 | | 59.05(f) and, after that deduction, the deduction of storage and |
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| 44 | 44 | | disposal costs, to be deposited not later than the 30th day after |
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| 45 | 45 | | the date of the sale as follows: |
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| 46 | 46 | | (A) 50 percent of the funds in the state treasury |
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| 47 | 47 | | to the credit of the general revenue fund; and |
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| 48 | 48 | | (B) 50 percent of the funds to the credit of a |
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| 49 | 49 | | special fund in the county treasury for the benefit of the office of |
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| 50 | 50 | | the attorney representing the state, to be used by the attorney |
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| 51 | 51 | | solely for the official purposes of the attorney's office. |
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| 52 | 52 | | (c-5) Notwithstanding any other provision of this chapter, |
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| 53 | 53 | | forfeited property or the proceeds from the sale of forfeited |
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| 54 | 54 | | property may not be transferred to a local or state law enforcement |
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| 55 | 55 | | agency. |
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| 56 | 56 | | (d) Proceeds awarded under this chapter to [a law |
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| 57 | 57 | | enforcement agency or to] the attorney representing the state may |
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| 58 | 58 | | be spent by [the agency or] the attorney after a budget for the |
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| 59 | 59 | | expenditure of the proceeds has been submitted to the commissioners |
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| 60 | 60 | | court or governing body of the municipality. The budget must be |
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| 61 | 61 | | detailed and clearly list and define the categories of |
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| 62 | 62 | | expenditures, but may not list details that would endanger the |
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| 63 | 63 | | security of an investigation or prosecution. Expenditures are |
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| 64 | 64 | | subject to the audit and enforcement provisions established under |
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| 65 | 65 | | this chapter. A commissioners court or governing body of a |
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| 66 | 66 | | municipality may not use the existence of an award to offset or |
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| 67 | 67 | | decrease total salaries, expenses, and allowances that [the agency |
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| 68 | 68 | | or] the attorney receives from the commissioners court or governing |
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| 69 | 69 | | body at or after the time the proceeds are awarded. |
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| 70 | 70 | | (d-1) An [The head of a law enforcement agency or an] |
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| 71 | 71 | | attorney representing the state may not use proceeds or property |
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| 72 | 72 | | received under this chapter to: |
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| 73 | 73 | | (1) contribute to a political campaign; |
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| 74 | 74 | | (2) make a donation to any entity, except as provided |
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| 75 | 75 | | by Subsection (d-2); |
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| 76 | 76 | | (3) pay expenses related to the training or education |
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| 77 | 77 | | of any member of the judiciary; |
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| 78 | 78 | | (4) pay any travel expenses related to attendance at |
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| 79 | 79 | | training or education seminars if the expenses violate generally |
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| 80 | 80 | | applicable restrictions established by the commissioners court or |
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| 81 | 81 | | governing body of the municipality, as applicable; |
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| 82 | 82 | | (5) purchase alcoholic beverages; |
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| 83 | 83 | | (6) make any expenditure not approved by the |
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| 84 | 84 | | commissioners court or governing body of the municipality, as |
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| 85 | 85 | | applicable, if the [head of a law enforcement agency or] attorney |
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| 86 | 86 | | representing the state holds an elective office and: |
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| 87 | 87 | | (A) the deadline for filing an application for a |
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| 88 | 88 | | place on the ballot as a candidate for reelection to that office in |
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| 89 | 89 | | the general primary election has passed and the person did not file |
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| 90 | 90 | | an application for a place on that ballot; or |
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| 91 | 91 | | (B) during the person's current term of office, |
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| 92 | 92 | | the person was a candidate in a primary, general, or runoff election |
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| 93 | 93 | | for reelection to that office and was not the prevailing candidate |
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| 94 | 94 | | in that election; or |
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| 95 | 95 | | (7) increase a salary, expense, or allowance for an |
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| 96 | 96 | | employee of the [law enforcement agency or] attorney representing |
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| 97 | 97 | | the state who is budgeted by the commissioners court or governing |
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| 98 | 98 | | body of the municipality unless the commissioners court or |
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| 99 | 99 | | governing body first approves the increase. |
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| 100 | 100 | | (d-2) An [The head of a law enforcement agency or an] |
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| 101 | 101 | | attorney representing the state may use as an official purpose of |
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| 102 | 102 | | the [agency or] attorney proceeds or property received under this |
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| 103 | 103 | | chapter to make a donation to an entity that assists in: |
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| 104 | 104 | | (1) the detection, investigation, or prosecution of: |
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| 105 | 105 | | (A) criminal offenses; or |
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| 106 | 106 | | (B) instances of abuse, as defined by Section |
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| 107 | 107 | | 261.001, Family Code; |
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| 108 | 108 | | (2) the provision of: |
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| 109 | 109 | | (A) mental health, drug, or rehabilitation |
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| 110 | 110 | | services; or |
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| 111 | 111 | | (B) services for victims or witnesses of criminal |
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| 112 | 112 | | offenses or instances of abuse described by Subdivision (1); or |
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| 113 | 113 | | (3) the provision of training or education related to |
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| 114 | 114 | | duties or services described by Subdivision (1) or (2). |
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| 115 | 115 | | (g)(1) All [law enforcement agencies and] attorneys |
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| 116 | 116 | | representing the state who receive proceeds or property under this |
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| 117 | 117 | | chapter shall account for the seizure, forfeiture, receipt, and |
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| 118 | 118 | | specific expenditure of all the proceeds and property in an audit, |
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| 119 | 119 | | which is to be performed annually by the commissioners court or |
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| 120 | 120 | | governing body of a municipality, as appropriate. The annual |
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| 121 | 121 | | period of the audit for [a law enforcement agency is the fiscal year |
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| 122 | 122 | | of the appropriate county or municipality and the annual period |
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| 123 | 123 | | for] an attorney representing the state is the state fiscal year. |
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| 124 | 124 | | The audit must be completed on a form provided by the attorney |
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| 125 | 125 | | general and must include a detailed report and explanation of all |
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| 126 | 126 | | expenditures, including salaries and overtime pay, [officer] |
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| 127 | 127 | | training, investigative equipment and supplies, and other items. |
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| 128 | 128 | | Certified copies of the audit shall be delivered by the [law |
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| 129 | 129 | | enforcement agency or] attorney representing the state to the |
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| 130 | 130 | | attorney general not later than the 60th day after the end of the |
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| 131 | 131 | | state fiscal year [date on which the annual period that is the |
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| 132 | 132 | | subject of the audit ends]. |
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| 133 | 133 | | (2) If a copy of the audit is not delivered to the |
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| 134 | 134 | | attorney general within the period required by Subdivision (1), |
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| 135 | 135 | | within five days after the end of the period the attorney general |
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| 136 | 136 | | shall notify the [law enforcement agency or the] attorney |
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| 137 | 137 | | representing the state of that fact. On a showing of good cause, the |
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| 138 | 138 | | attorney general may grant an extension permitting the [agency or] |
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| 139 | 139 | | attorney to deliver a copy of the audit after the period required by |
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| 140 | 140 | | Subdivision (1) and before the 76th day after the end of the state |
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| 141 | 141 | | fiscal year [date on which the annual period that is the subject of |
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| 142 | 142 | | the audit ends]. If the [law enforcement agency or the] attorney |
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| 143 | 143 | | representing the state fails to establish good cause for not |
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| 144 | 144 | | delivering the copy of the audit within the period required by |
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| 145 | 145 | | Subdivision (1) or fails to deliver a copy of an audit within the |
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| 146 | 146 | | extension period, the attorney general shall notify the comptroller |
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| 147 | 147 | | of that fact. |
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| 148 | 148 | | (3) On notice under Subdivision (2), the comptroller |
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| 149 | 149 | | shall perform the audit otherwise required by Subdivision (1). At |
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| 150 | 150 | | the conclusion of the audit, the comptroller shall forward a copy of |
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| 151 | 151 | | the audit to the attorney general. The [law enforcement agency or] |
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| 152 | 152 | | attorney representing the state is liable to the comptroller for |
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| 153 | 153 | | the costs of the comptroller in performing the audit. |
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| 154 | 154 | | (l) An [A law enforcement agency that, or an] attorney |
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| 155 | 155 | | representing the state who [,] does not receive proceeds or |
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| 156 | 156 | | property under this chapter during a state fiscal year [an annual |
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| 157 | 157 | | period] as described by Subsection (g) shall, not later than the |
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| 158 | 158 | | 30th day after the date on which the state fiscal year [annual |
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| 159 | 159 | | period] ends, report to the attorney general that the [agency or] |
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| 160 | 160 | | attorney representing the state [, as appropriate,] did not receive |
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| 161 | 161 | | proceeds or property under this chapter during that fiscal year |
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| 162 | 162 | | [the annual period]. |
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| 163 | 163 | | (s) Not later than April 30 of each year, the attorney |
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| 164 | 164 | | general shall develop a report based on information submitted by |
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| 165 | 165 | | [law enforcement agencies and] attorneys representing the state |
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| 166 | 166 | | under Subsection (g) detailing the total amount of funds forfeited, |
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| 167 | 167 | | or credited after the sale of forfeited property, in this state in |
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| 168 | 168 | | the preceding calendar year. The attorney general shall maintain |
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| 169 | 169 | | in a prominent location on the attorney general's publicly |
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| 170 | 170 | | accessible Internet website a link to the most recent annual report |
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| 171 | 171 | | developed under this subsection. |
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| 172 | 172 | | (t)(1) This subsection applies only to contraband for which |
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| 173 | 173 | | forfeiture is authorized with respect to an offense under Section |
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| 174 | 174 | | 20.05, 20.06, 20.07, 43.04, or 43.05 or Chapter 20A, Penal Code. |
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| 175 | 175 | | (2) Notwithstanding any other provision of this |
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| 176 | 176 | | article, the gross amount credited to the special fund of the office |
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| 177 | 177 | | of the attorney representing the state [or of a law enforcement |
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| 178 | 178 | | agency under Subsection (c)] from the forfeiture of contraband |
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| 179 | 179 | | described by Subdivision (1) shall be: |
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| 180 | 180 | | (A) used to provide direct victim services by the |
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| 181 | 181 | | victim services division or other similar division of the office of |
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| 182 | 182 | | the attorney representing the state [or of a law enforcement |
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| 183 | 183 | | agency, as applicable]; or |
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| 184 | 184 | | (B) used by the office of the attorney |
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| 185 | 185 | | representing the state [or of the law enforcement agency] to cover |
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| 186 | 186 | | the costs of a contract with a local nonprofit organization to |
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| 187 | 187 | | provide direct services to crime victims. |
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| 188 | 188 | | (3) An expenditure of money in the manner required by |
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| 189 | 189 | | this subsection is considered to be for an official purpose of the |
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| 190 | 190 | | office of the attorney representing the state [or for a law |
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| 191 | 191 | | enforcement purpose, as applicable]. |
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| 192 | 192 | | SECTION 3. Articles 59.061(c) and (d), Code of Criminal |
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| 193 | 193 | | Procedure, are amended to read as follows: |
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| 194 | 194 | | (c) If the results of an audit or investigation under this |
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| 195 | 195 | | article indicate that an [a law enforcement agency or] attorney |
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| 196 | 196 | | representing the state has knowingly violated or is knowingly |
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| 197 | 197 | | violating a provision of this chapter relating to the disposition |
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| 198 | 198 | | of proceeds or property received under this chapter, the state |
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| 199 | 199 | | auditor shall promptly notify the attorney general for the purpose |
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| 200 | 200 | | of initiating appropriate enforcement proceedings under Article |
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| 201 | 201 | | 59.062. |
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| 202 | 202 | | (d) The [law enforcement agency or] attorney representing |
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| 203 | 203 | | the state shall reimburse the state auditor for costs incurred by |
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| 204 | 204 | | the state auditor in performing an audit under this article. |
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| 205 | 205 | | SECTION 4. Articles 59.062(a), (b), (c), (e), and (g), Code |
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| 206 | 206 | | of Criminal Procedure, are amended to read as follows: |
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| 207 | 207 | | (a) In the name of the state, the attorney general may |
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| 208 | 208 | | institute in a district court in Travis County or in a county served |
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| 209 | 209 | | by the [law enforcement agency or] attorney representing the state |
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| 210 | 210 | | [, as applicable,] a suit for injunctive relief, to recover a civil |
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| 211 | 211 | | penalty, or for both injunctive relief and a civil penalty if the |
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| 212 | 212 | | results of an audit or investigation under Article 59.061 indicate |
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| 213 | 213 | | that the [law enforcement agency or] attorney representing the |
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| 214 | 214 | | state has knowingly violated or is knowingly violating a provision |
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| 215 | 215 | | of this chapter relating to the disposition of proceeds or property |
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| 216 | 216 | | received under this chapter. |
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| 217 | 217 | | (b) On application for injunctive relief and a finding that |
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| 218 | 218 | | the [law enforcement agency or] attorney representing the state is |
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| 219 | 219 | | knowingly violating a provision of this chapter relating to the |
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| 220 | 220 | | disposition of proceeds or property received under this chapter, |
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| 221 | 221 | | the district court shall grant the injunctive relief the facts may |
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| 222 | 222 | | warrant, without requirement for bond. |
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| 223 | 223 | | (c) An [A law enforcement agency or] attorney representing |
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| 224 | 224 | | the state who knowingly commits a violation described by Subsection |
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| 225 | 225 | | (a) is liable to the state for a civil penalty in an amount not to |
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| 226 | 226 | | exceed $100,000 as determined by the district court to be |
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| 227 | 227 | | appropriate for the nature and seriousness of the violation. In |
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| 228 | 228 | | determining an appropriate penalty for the violation, the court |
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| 229 | 229 | | shall consider: |
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| 230 | 230 | | (1) any previous violations committed by the [agency |
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| 231 | 231 | | or] attorney; |
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| 232 | 232 | | (2) the seriousness of the violation, including the |
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| 233 | 233 | | nature, circumstances, extent, and gravity of the violation; |
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| 234 | 234 | | (3) the demonstrated good faith of the [agency or] |
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| 235 | 235 | | attorney; and |
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| 236 | 236 | | (4) the amount necessary to deter future violations. |
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| 237 | 237 | | (e) Notwithstanding any other provision of this article, an |
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| 238 | 238 | | [a law enforcement agency or] attorney representing the state |
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| 239 | 239 | | ordered to pay a civil penalty, expense, cost, or fee under this |
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| 240 | 240 | | article shall make the payment out of money available in any fund |
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| 241 | 241 | | established by the [agency or] attorney [, as applicable,] for the |
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| 242 | 242 | | purpose of administering proceeds or property received under this |
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| 243 | 243 | | chapter. If sufficient money is not available to make payment in |
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| 244 | 244 | | full at the time the court enters an order requiring payment, the |
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| 245 | 245 | | [agency or] attorney shall continue to make payments out of money |
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| 246 | 246 | | available in any fund described by this subsection until the |
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| 247 | 247 | | payment is made in full. |
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| 248 | 248 | | (g) An [A law enforcement agency or] attorney representing |
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| 249 | 249 | | the state is immune from liability under this article if the [agency |
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| 250 | 250 | | or] attorney reasonably relied on: |
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| 251 | 251 | | (1) the advice, consent, or approval of an entity that |
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| 252 | 252 | | conducts an audit of the [agency or] attorney under this chapter; or |
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| 253 | 253 | | (2) a written opinion of the attorney general relating |
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| 254 | 254 | | to: |
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| 255 | 255 | | (A) the statute or other provision of law the |
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| 256 | 256 | | [agency or] attorney is alleged to have knowingly violated; or |
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| 257 | 257 | | (B) a fact situation that is substantially |
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| 258 | 258 | | similar to the fact situation in which the [agency or] attorney is |
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| 259 | 259 | | involved. |
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| 260 | 260 | | SECTION 5. Articles 59.06(b), (b-1), (b-2), (c), (c-1), |
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| 261 | 261 | | (c-2), (c-3), (c-4), (d-3), (h), (i), (j), (m), (n), (o), (q), and |
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| 262 | 262 | | (r), Code of Criminal Procedure, are repealed. |
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| 263 | 263 | | SECTION 6. The change in law made by this Act in amending |
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| 264 | 264 | | Article 59.06, Code of Criminal Procedure, applies to the |
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| 265 | 265 | | disposition or use, on or after the effective date of this Act, of |
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| 266 | 266 | | forfeited property or proceeds from the sale of forfeited property |
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| 267 | 267 | | under Chapter 59, Code of Criminal Procedure, regardless of whether |
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| 268 | 268 | | the receipt of the property or proceeds occurred before, on, or |
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| 269 | 269 | | after the effective date of this Act. |
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| 270 | 270 | | SECTION 7. This Act takes effect September 1, 2021. |
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