88R4511 MCF-F
By: Thompson of Harris, Harrison H.B. No. 3758
A BILL TO BE ENTITLED
AN ACT
relating to repealing civil asset forfeiture provisions and
establishing criminal asset forfeiture in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 59A to read as follows:
CHAPTER 59A. CRIMINAL ASSET FORFEITURE
Art. 59A.001. DEFINITIONS. In this chapter:
(1) "Abandoned property" means personal property left
by an owner who has intentionally relinquished all rights to
control of the property.
(2) "Actual knowledge" means direct and clear
awareness of information, facts, or conditions.
(3) "Contraband" means tangible or intangible goods
that are illegal to import, export, or possess, including a
scheduled drug without a valid prescription.
(4) "Conveyance" means a device or structure used for
transportation. The term includes a motor vehicle, trailer,
snowmobile, airplane, or vessel, and any attached equipment.
(5) "Department" means the Department of Public
Safety.
(6) "Instrumentality" means property that is
otherwise lawful to possess and that is used in the furtherance or
commission of an offense subject to forfeiture. The term includes
land, buildings, containers, conveyances, equipment, materials,
products, computer hardware or software, telecommunications
devices, firearms, ammunition, tools, and money, securities,
negotiable instruments, or other means of exchange. The term does
not include stolen property.
(7) "Law enforcement agency" means a law enforcement
agency of this state or a political subdivision of this state that
has authority under state law to engage in seizure and forfeiture.
(8) "Offense subject to forfeiture" means:
(A) a first or second degree felony under the
Penal Code;
(B) a third degree or state jail felony under
Chapter 49, Penal Code, if the defendant has been previously
convicted three times of an offense under that chapter;
(C) a Class A misdemeanor or any felony under
Section 545.420, Transportation Code, other than a Class A
misdemeanor that is classified as a Class A misdemeanor based
solely on conduct constituting a violation of Subsection (e)(2)(B)
of that section;
(D) a felony under:
(i) Chapter 151, Finance Code;
(ii) Chapter 481 or 483, Health and Safety
Code;
(iii) Chapter 32, Human Resources Code, or
Chapter 35A or 37, Penal Code, that involves a health care program,
as defined by Section 35A.01, Penal Code;
(iv) Section 15.031, 21.11, or 38.04, Penal
Code;
(v) Chapter 20A, 29, 30, 31, 32, 33, 33A,
34, 35, or 43, Penal Code; or
(vi) The Securities Act (Title 12,
Government Code);
(E) a Class A misdemeanor under:
(i) Section 306.051, Business & Commerce
Code; or
(ii) Subchapter B, Chapter 365, Health and
Safety Code, if the defendant has been previously convicted two
times of an offense under that subchapter;
(F) a Class B misdemeanor under Chapter 522,
Business & Commerce Code;
(G) an offense under:
(i) Section 326.002, Business & Commerce
Code;
(ii) Section 20.05, 20.06, 20.07, 42.10,
46.06(a)(1), or 46.14, Penal Code;
(iii) Chapter 71, Penal Code; or
(iv) Section 550.021, Transportation Code;
or
(H) any other offense that results in a personal
injury to a victim and that is provided under:
(i) the Penal Code; or
(ii) a federal criminal law.
Art. 59A.002. PURPOSE. The purpose of this chapter is to:
(1) deter criminal activity by reducing the economic
incentives;
(2) increase the pecuniary loss that results from
engaging in criminal activity; and
(3) protect against the wrongful forfeiture of
property.
Art. 59A.003. CRIMINAL ASSET FORFEITURE; PROPERTY SUBJECT
TO FORFEITURE. (a) The convicting court may order a person
convicted of an offense subject to forfeiture to forfeit any:
(1) property the person derived from the commission of
the offense;
(2) property directly traceable to property derived
from the commission of the offense; or
(3) instrumentality the person used in the commission
of the offense.
(b) For purposes of this chapter, a person is considered
convicted if:
(1) a sentence is imposed on the person; or
(2) the person receives community supervision,
including deferred adjudication community supervision.
Art. 59A.004. EXEMPT PROPERTY. The following are exempt
from forfeiture:
(1) property that is homestead property;
(2) a motor vehicle valued at less than $10,000; and
(3) United States currency totaling $200 or less.
Art. 59A.005. CONTRABAND. A person may not have a property
interest in contraband. Contraband is subject to seizure and shall
be disposed of in accordance with state law. Contraband is not
subject to forfeiture under this chapter.
Art. 59A.006. CONVICTION REQUIRED; STANDARD OF PROOF. (a)
Property may be forfeited under this chapter only if:
(1) a person is convicted of an offense subject to
forfeiture; and
(2) the state establishes by clear and convincing
evidence that the applicable requirements of Articles
59A.003-59A.005 are met.
(b) This chapter does not prevent property from being
forfeited by plea agreement approved by the convicting court.
Art. 59A.007. SUBSTITUTION OF ASSETS. On the state's
motion following conviction, the convicting court may order the
forfeiture of substitute property owned by the defendant if the
state proves by a preponderance of the evidence that the defendant
intentionally transferred, sold, or deposited property with a third
party to avoid the court's jurisdiction. The value of substitute
property forfeited may not exceed the value of the property
transferred, sold, or deposited.
Art. 59A.008. NO JOINT AND SEVERAL LIABILITY. A defendant
convicted of an offense subject to forfeiture is not jointly and
severally liable for a forfeiture award owed by any other
defendant. If ownership is unknown, the convicting court may order
each defendant to forfeit property on a pro rata basis or by other
equitable means.
Art. 59A.009. SEIZURE OF PERSONAL PROPERTY WITH PROCESS.
At the request of the state made at any time, a court may issue an ex
parte preliminary order to seize or secure personal property for
which forfeiture is sought and to provide for its custody.
Art. 59A.010. SEIZURE OF PERSONAL PROPERTY WITHOUT PROCESS.
Personal property subject to forfeiture may be seized at any time
without a court order if:
(1) the seizure is incident to a lawful arrest or
search;
(2) the personal property has been the subject of a
previous judgment in favor of the state; or
(3) the law enforcement agency seizing the property
has probable cause to believe that:
(A) the seizure is immediately necessary to
prevent the removal or destruction of the personal property; and
(B) the personal property is forfeitable under
this chapter.
Art. 59A.011. SEIZURE OF REAL PROPERTY WITH PROCESS. (a)
Real property may be seized only under a court order. A court may
issue an order to seize or secure real property for which forfeiture
is sought only after the property owners are provided notice and an
opportunity for a contested hearing to determine the sufficiency of
the probable cause for the seizure.
(b) This article does not prohibit the attorney
representing the state from seeking a lis pendens or restraining
order to prohibit the sale or destruction of the real property.
Art. 59A.012. RECEIPT. A law enforcement officer who
seizes property shall give an itemized receipt to the person
possessing the property, or in the absence of any person, leave a
receipt in the place where the property was found, if reasonably
possible.
Art. 59A.013. TITLE TO PROPERTY. (a) At the time of a
seizure or the issuance of a lis pendens or restraining order, the
state acquires provisional title to the seized property and may
hold and protect the property.
(b) Title to the property vests with the state on the date
the court orders the property to be forfeited and the vesting
relates back to the date the state acquired provisional title.
Title acquired under this subsection is subject to a claim by a
third party that is adjudicated as provided by this chapter.
Art. 59A.014. PRETRIAL HEARING REGARDING REPLEVIN. (a) In
this article, "claimant" means a person claiming an ownership
interest in property that has been seized under this chapter.
(b) Following a seizure of property subject to forfeiture, a
claimant has the right to a pretrial hearing to determine the
validity of the seizure.
(c) The claimant may claim, at any time on or before the 60th
day before the scheduled start of the trial of the related criminal
offense or as soon as otherwise practicable, the right to
possession of property by motion to the court to issue a writ of
replevin.
(d) The claimant must file a motion establishing the
validity of the alleged interest in the property.
(e) The court shall hear the motion not later than the 30th
day after the date the motion is filed.
(f) The state must file an answer showing probable cause for
the seizure or a cross motion not later than the 10th day before the
hearing on the claimant's motion.
(g) The court shall grant the claimant's motion if the court
finds that:
(1) the final judgment is likely to require the state
to return the property to the claimant;
(2) the property is not reasonably required to be held
for investigatory reasons; or
(3) the property is the only reasonable means for a
defendant to pay for legal representation in the forfeiture
proceeding or in the prosecution of the related criminal offense.
(h) At the court's discretion under Subsection (g)(3), the
court may order the return of funds or property sufficient for the
defendant to obtain legal counsel but less than the total amount
seized, and may require an accounting for the use of the returned
funds or property.
(i) Instead of ordering the issuance of the writ of
replevin, the court may order the state to give security or written
assurance for satisfaction of any judgment, including damages, that
may be rendered in the action or may order other appropriate relief.
Art. 59A.015. FORFEITURE PROCEEDING. A proceeding for the
forfeiture of property shall be held following the trial of the
related alleged offense. If the value of the property is less than
$10,000, the proceeding must be held before the judge only.
Art. 59A.016. PROPORTIONALITY HEARING. (a) At any time
following a determination of forfeiture by the trier of fact, the
defendant may petition the court to determine whether the
forfeiture is unconstitutionally excessive under the United States
Constitution or the Texas Constitution.
(b) The defendant has the burden of establishing by a
preponderance of the evidence that the forfeiture is grossly
disproportional to the seriousness of the offense. The hearing
must be held before the judge only.
(c) In determining whether the forfeiture of property is
unconstitutionally excessive, the court may consider all relevant
factors, including:
(1) the seriousness of the offense and its impact on
the community, including the duration of the activity and the harm
caused by the defendant;
(2) the extent to which the defendant participated in
the offense;
(3) the extent to which the property was used in
committing the offense;
(4) the sentence imposed for the offense; and
(5) whether the offense was completed or attempted.
(d) In determining the value of the property subject to
forfeiture, the court may consider all relevant factors, including:
(1) the fair market value of the property;
(2) the value of the property to the defendant,
including hardship to the defendant if the court orders the
property to be forfeited; and
(3) the hardship to a defendant's family member or
other person from the loss of a primary residence, motor vehicle, or
other property if the court orders the property to be forfeited.
(e) The court may not consider the value of the property to
the state in determining whether the forfeiture of property is
unconstitutionally excessive.
Art. 59A.017. SECURITY INTEREST. A bona fide security
interest is not subject to forfeiture unless the person claiming
the security interest had actual knowledge that the property was
subject to forfeiture at the time the security interest was
created. A person claiming a security interest must establish the
validity of the interest by a preponderance of the evidence.
Art. 59A.018. INNOCENT OWNER. (a) The property of an
innocent owner may not be forfeited.
(b) A person who has an ownership interest in property
subject to forfeiture that existed at the time of the conduct giving
rise to the forfeiture and who claims to be an innocent owner must
show that the person has a legal right, title, or interest in the
property seized under this chapter. If the person shows legal
right, title, or interest in the property, the state must prove by a
preponderance of the evidence that the person had actual or
constructive knowledge of the underlying offense giving rise to the
forfeiture. A person is presumed to have constructive knowledge of
the underlying offense if the person is a family or household member
of the defendant alleged to have committed or convicted of the
underlying offense and if the defendant, during the 10 years
preceding the underlying offense, was convicted three or more times
for the same or a similar offense.
(c) A person who, after the commission of an offense giving
rise to the forfeiture, acquired an ownership interest in property
subject to forfeiture and who claims to be an innocent owner must
show that the person has legal right, title, or interest in the
property seized under this chapter. If the person shows legal
right, title, or interest in the property, the state must prove by a
preponderance of the evidence that at the time the person acquired
the property, the person:
(1) had actual or constructive knowledge that the
property was subject to forfeiture; or
(2) did not purchase the property for valuable
consideration without notice of any defect in title.
(d) A person is presumed to have constructive knowledge that
the property was subject to forfeiture if:
(1) the person:
(A) acquired the property from the defendant
alleged to have committed or convicted of the underlying offense;
and
(B) is a family or household member of the
defendant; and
(2) the defendant, during the 10-year period preceding
the underlying offense, was convicted three or more times for the
same or a similar offense.
(e) If the state fails to meet its burden in Subsection (b)
or (c), the court shall find that the person is an innocent owner
and shall order the state to relinquish all claims of title to the
property.
Art. 59A.019. APPEAL. A party to forfeiture litigation may
appeal the court's decision regarding the seizure, forfeiture, and
distribution of property under this chapter.
Art. 59A.020. DISPOSITION OF PROPERTY AND PROCEEDS. (a) If
abandoned property held for evidentiary purposes is no longer
needed for that purpose, the court may order that the property be
delivered, not later than the 30th day after the date of the order,
to the county treasurer in the county in which the property was
abandoned.
(b) If contraband held for evidentiary purposes is no longer
needed for that purpose, the court may order that the contraband be
destroyed not later than the 30th day after the date of the order.
(c) If property is forfeited under this chapter, the court
may order that the property be delivered, not later than the 30th
day after the date of the order, to the county treasurer in the
county in which the property was seized.
(d) All abandoned property shall be delivered to the county
treasurer in the county in which the property was abandoned.
(e) A county treasurer who receives forfeited or abandoned
property under this article shall dispose of the property, other
than currency, at public auction. The auction proceeds and
forfeited currency first shall be used to pay all outstanding
recorded liens on the forfeited property, and then shall be used to
comply with any court order regarding the payment of expenses.
(f) On the court's own motion or on the motion of any party,
the court may order that a portion of the currency seized or of the
proceeds from the public auction of property be used to pay
reasonable expenses for the seizure, storage, and maintenance or
custody of any forfeited items, other than expenses for personnel.
(g) The county treasurer shall, after making payments
required by Subsections (e) and (f), deposit any remaining money
into the general fund of the county.
Art. 59A.021. PROHIBITION ON RETAINING PROPERTY; SALE
RESTRICTIONS. A law enforcement agency may not:
(1) retain forfeited or abandoned property for the
agency's use; or
(2) sell forfeited or abandoned property directly or
indirectly to:
(A) an employee of the agency;
(B) a person related to an employee by
consanguinity or affinity; or
(C) another law enforcement agency.
Art. 59A.022. REPORTING. (a) Not later than February 1 of
each year, each law enforcement agency shall report to the
department the following information regarding seizures by the
agency for which, during the preceding calendar year, a forfeiture
order was issued under this chapter or the property was otherwise
forfeited under applicable federal law:
(1) the total number of forfeitures of currency;
(2) the total number of forfeitures and the number of
items of property forfeited according to categories specified by
the department;
(3) the total market value of each category of
property forfeited;
(4) the total number of occurrences of each type of
offense underlying the forfeitures, including offenses involving
controlled substances and driving while intoxicated; and
(5) any other information required by the department.
(b) The department shall prescribe a standardized form and
provide for electronic submission of the report required under
Subsection (a).
(c) A law enforcement agency shall file with the department
separate reports for forfeitures completed under this chapter and
federal law. If a law enforcement agency did not engage in a
seizure that resulted in forfeiture during the reporting period,
the agency shall file a report indicating that fact.
(d) Not later than April 1 of each year, the department
shall:
(1) issue an aggregate report of all forfeitures in
the state; and
(2) make the reports submitted by law enforcement
agencies and the department's aggregate report available on the
department's Internet website.
Art. 59A.023. RETURN OF PROPERTY; DAMAGES; COSTS. (a) A
law enforcement agency that holds property under this chapter shall
return the property to the owner not later than the fifth day after
the date:
(1) the court finds that the owner had a bona fide
security interest;
(2) the court finds that the owner was an innocent
owner;
(3) the owner is acquitted of the offense that is the
basis of the forfeiture proceeding; or
(4) the criminal charge against the owner that is the
basis of the forfeiture proceeding is dismissed.
(b) The law enforcement agency that holds the property is
responsible for all damages, storage fees, and related costs
applicable to property returned under Subsection (a).
Art. 59A.024. EFFECT OF OVERTURNED CONVICTION; PAYMENT TO
DEFENDANT. (a) If a defendant's conviction for an offense
underlying a forfeiture under this chapter is reversed, set aside,
or vacated on appeal, the defendant is entitled to recover any money
deposited in the county's general fund under Article 59A.020(g) as
a result of the disposition of the defendant's forfeited property.
The county shall pay to the defendant the deposited amount on the
91st day after the applicable date as follows:
(1) the date the conviction is reversed, set aside, or
vacated, if the attorney representing the state does not file:
(A) an appeal of the ruling that reversed, set
aside, or vacated the conviction; or
(B) a written notice with the court of the
attorney's intention to proceed with a new trial;
(2) the date a ruling described by Subdivision (1)(A)
is affirmed on appeal; or
(3) the date the attorney representing the state files
the notice described by Subdivision (1)(B), if the new trial has not
commenced.
(b) For purposes of this chapter, the outcome of a new trial
shall be treated in the same manner as any other conviction.
Art. 59A.025. CIVIL FORFEITURE FOR CERTAIN PROPERTY. (a)
Notwithstanding any other provision of this chapter, property is
subject to forfeiture under this article, regardless of whether a
person has been convicted of an offense subject to forfeiture in
connection with the property, if:
(1) the property was:
(A) seized with probable cause that it was
involved in the commission of a felony; or
(B) obtained, directly or indirectly, through
the commission of a felony; and
(2) the property owner:
(A) has not claimed the property or asserted any
interest in the property; or
(B) is unavailable.
(b) For purposes of Subsection (a)(2)(B), a property owner
is unavailable if the owner is deceased or, after the owner is
indicted for the felony offense or after a warrant has been issued
for the arrest of the owner in connection with the offense, the
owner is:
(1) outside the state and unable to be extradited to
this state for prosecution; or
(2) unable to be located after reasonable efforts by
law enforcement authorities.
(c) The attorney representing the state may bring a
forfeiture proceeding under this article by filing a complaint in a
district court in the county in which the property was seized. The
complaint must state facts that show the property is subject to
forfeiture under Subsection (a).
(d) A forfeiture proceeding under this article shall
proceed to trial in the same manner as in other civil cases. The
state has the burden of proving by a preponderance of the evidence
that property is subject to forfeiture under Subsection (a).
Art. 59A.026. TRANSFER OF FORFEITABLE PROPERTY TO FEDERAL
GOVERNMENT. A law enforcement agency or attorney representing the
state may not directly or indirectly transfer seized property to
any federal law enforcement authority or other federal agency
unless:
(1) the value of the seized property exceeds $50,000;
and
(2) the attorney representing the state determines
that:
(A) the activity giving rise to the investigation
or seizure is interstate in nature and sufficiently complex to
justify the transfer; or
(B) the seized property may only be forfeited
under federal law.
SECTION 2. Section 72.051(a), Business & Commerce Code, is
amended to read as follows:
(a) In this section, "law enforcement agency" means an
agency of the state or an agency of a political subdivision of the
state authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 3. Section 140A.111, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 140A.111. PREVIOUSLY SEIZED ASSETS. Notwithstanding
another provision of this chapter, no remedies provided by this
chapter may be assessed against proceeds[, contraband,] or [other]
property over which a law enforcement agency has previously
asserted jurisdiction under Chapter 59A [59], Code of Criminal
Procedure, at the time a suit under this chapter was filed.
SECTION 4. Article 18.01(g), Code of Criminal Procedure, is
amended to read as follows:
(g) A search warrant may not be issued under Article
18.02(a)(12) unless the sworn affidavit required by Subsection (b)
of this article sets forth sufficient facts to establish probable
cause that a specific felony offense has been committed and that the
specifically described property or items that are to be searched
for or seized are subject to forfeiture under Chapter 59A
[constitute contraband as defined in Article 59.01 of this code]
and are located at or on the particular person, place, or thing to
be searched.
SECTION 5. Article 18.02(a), Code of Criminal Procedure, is
amended to read as follows:
(a) A search warrant may be issued to search for and seize:
(1) property acquired by theft or in any other manner
which makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for
or commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set
forth by law;
(7) a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance
property, including an apparatus or paraphernalia kept, prepared,
or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited
by law;
(9) implements or instruments used in the commission
of a crime;
(10) property or items, except the personal writings
by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;
(11) persons;
(12) property [contraband] subject to forfeiture
under Chapter 59A [59 of this code];
(13) electronic customer data held in electronic
storage, including the contents of and records and other
information related to a wire communication or electronic
communication held in electronic storage; or
(14) a cellular telephone or other wireless
communications device, subject to Article 18.0215.
SECTION 6. Articles 18.19(c), (d-1), and (e), Code of
Criminal Procedure, are amended to read as follows:
(c) If there is no prosecution or conviction for an offense
involving the weapon seized, the magistrate to whom the seizure was
reported shall, before the 61st day after the date the magistrate
determines that there will be no prosecution or conviction, notify
in writing the person found in possession of the weapon that the
person is entitled to the weapon upon written request to the
magistrate. The magistrate shall order the weapon returned to the
person found in possession before the 61st day after the date the
magistrate receives a request from the person. If the weapon is not
requested before the 61st day after the date of notification, the
magistrate shall, before the 121st day after the date of
notification, order the weapon destroyed, sold at public sale by
the law enforcement agency holding the weapon or by an auctioneer
licensed under Chapter 1802, Occupations Code, or forfeited to the
state for use by the law enforcement agency holding the weapon or by
a county forensic laboratory designated by the magistrate. If the
magistrate does not order the return, destruction, sale, or
forfeiture of the weapon within the applicable period prescribed by
this subsection, the law enforcement agency holding the weapon may
request an order of destruction, sale, or forfeiture of the weapon
from the magistrate. Only a firearms dealer licensed under 18
U.S.C. Section 923 may purchase a weapon at public sale under this
subsection. Proceeds from the sale of a seized weapon under this
subsection shall be transferred, after the deduction of court costs
and [to which a district court clerk is entitled under Article
59.05(f), followed by the deduction of] auction costs, to the law
enforcement agency holding the weapon.
(d-1) Only a firearms dealer licensed under 18 U.S.C.
Section 923 may purchase a weapon at public sale under Subsection
(d). Proceeds from the sale of a seized weapon under Subsection (d)
shall be transferred, after the deduction of court costs and [to
which a district court clerk is entitled under Article 59.05(f),
followed by the deduction of] auction costs, to the law enforcement
agency holding the weapon.
(e) If the person found in possession of a weapon is
convicted of an offense involving the use of the weapon, before the
61st day after the date of conviction the court entering judgment of
conviction shall order destruction of the weapon, sale at public
sale by the law enforcement agency holding the weapon or by an
auctioneer licensed under Chapter 1802, Occupations Code, or
forfeiture to the state for use by the law enforcement agency
holding the weapon or by a county forensic laboratory designated by
the court. If the court entering judgment of conviction does not
order the destruction, sale, or forfeiture of the weapon within the
period prescribed by this subsection, the law enforcement agency
holding the weapon may request an order of destruction, sale, or
forfeiture of the weapon from a magistrate. Only a firearms dealer
licensed under 18 U.S.C. Section 923 may purchase a weapon at public
sale under this subsection. Proceeds from the sale of a seized
weapon under this subsection shall be transferred, after the
deduction of court costs and [to which a district court clerk is
entitled under Article 59.05(f), followed by the deduction of]
auction costs, to the law enforcement agency holding the weapon.
SECTION 7. Article 47.01a(b), Code of Criminal Procedure,
is amended to read as follows:
(b) If it is shown in a hearing that probable cause exists to
believe that the property was acquired by theft or by another manner
that makes its acquisition an offense and that the identity of the
actual owner of the property cannot be determined, the court shall
order the peace officer to:
(1) deliver the property to a government agency for
official purposes;
(2) deliver the property for disposition under Article
59A.020 to the county treasurer of the county in which the property
was seized [to a person authorized by Article 18.17 of this code to
receive and dispose of the property]; or
(3) destroy the property.
SECTION 8. Article 47.06, Code of Criminal Procedure, is
amended to read as follows:
Art. 47.06. DISPOSITION OF PROPERTY [SOLD]. If the
property is not claimed before the end of the 30-day period
following [within 30 days from] the conviction of the person
accused of illegally acquiring the property [it], the property
shall be delivered for disposition under Article 59A.020 to the
county treasurer of the county in which the property was seized
[same procedure for its disposition as set out in Article 18.17 of
this Code shall be followed].
SECTION 9. Article 47.07, Code of Criminal Procedure, is
amended to read as follows:
Art. 47.07. OWNER MAY RECOVER. The real owner of the
property disposed of [sold] under the provisions of Article 47.06
may file a claim with the commissioners court of the county to
recover any money attributable to the property and deposited in the
county's general fund under Article 59A.020(g) [such property under
the same terms as prescribed in Subsection (e) of Article 18.17 of
this Code]. A claim by the real owner must be filed not later than
the 30th day after the date of disposition. If the claim is allowed
by the commissioners court, the county treasurer shall pay the
owner the amount deposited. If the claim is denied by the
commissioners court or if the court fails to act on the claim before
the 91st day after the date the claim was filed, the claimant may
sue the county treasurer in a court of competent jurisdiction in the
county, and on sufficient proof of ownership, recover judgment
against the county for the amount deposited.
SECTION 10. Section 51.406(c), Education Code, is amended
to read as follows:
(c) A rule or policy of a state agency, including the Texas
Higher Education Coordinating Board, in effect on June 1, 2011,
that requires reporting by a university system or an institution of
higher education has no effect on or after September 1, 2013, unless
the rule or policy is affirmatively and formally readopted before
that date by formal administrative rule published in the Texas
Register and adopted in compliance with Chapter 2001, Government
Code. This subsection does not apply to:
(1) a rule or policy for which the authorizing statute
is listed in Subsection (b);
(2) a rule or policy for which the authorizing statute
is repealed on or before September 1, 2013, by legislation enacted
by the legislature that becomes law; or
(3) a report required under any of the following
provisions:
(A) [Article 59.06(g)(1), Code of Criminal
Procedure;
[(B)] Section 51.005;
(B) [(C)] Section 51.0051;
(C) [(D)] Subchapter F-1 of this chapter;
(D) [(E)] Section 51.402;
(E) [(F)] Section 56.039;
(F) [(G)] Section 61.059;
(G) [(H)] Section 62.095(b);
(H) [(I)] Section 62.098;
(I) [(J)] Section 411.187(b), Government Code;
(J) [(K)] Subchapter C, Chapter 606, Government
Code;
(K) [(L)] Subchapter E, Chapter 815, Government
Code; or
(L) [(M)] Chapter 1551, Insurance Code.
SECTION 11. Section 96.641(j), Education Code, is amended
to read as follows:
(j) As part of the initial training and continuing education
for police chiefs required under this section, the institute shall
establish a program on asset forfeiture under Chapter 59A [59],
Code of Criminal Procedure. The program must include an
examination of the best practices for educating peace officers
about asset forfeiture and monitoring peace officers' compliance
with laws relating to asset forfeiture.
SECTION 12. Section 157.317(a), Family Code, is amended to
read as follows:
(a) A child support lien attaches to all real and personal
property not exempt under the Texas Constitution or other law,
including:
(1) an account in a financial institution;
(2) a retirement plan, including an individual
retirement account;
(3) the proceeds of an insurance policy, including the
proceeds from a life insurance policy or annuity contract and the
proceeds from the sale or assignment of life insurance or annuity
benefits, a claim for compensation, or a settlement or award for the
claim for compensation, due to or owned by the obligor;
(4) property seized and subject to forfeiture under
Chapter 59A [59], Code of Criminal Procedure; and
(5) the proceeds derived from the sale of oil or gas
production from an oil or gas well located in this state.
SECTION 13. Section 392.303, Finance Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) In debt collection, a debt collector may not use unfair
or unconscionable means that employ the following practices:
(1) seeking or obtaining a written statement or
acknowledgment in any form that specifies that a consumer's
obligation is one incurred for necessaries of life if the
obligation was not incurred for those necessaries;
(2) collecting or attempting to collect interest or a
charge, fee, or expense incidental to the obligation unless the
interest or incidental charge, fee, or expense is expressly
authorized by the agreement creating the obligation or legally
chargeable to the consumer; or
(3) collecting or attempting to collect an obligation
under a check, draft, debit payment, or credit card payment, if:
(A) the check or draft was dishonored or the
debit payment or credit card payment was refused because the check
or draft was not drawn or the payment was not made by a person
authorized to use the applicable account;
(B) the debt collector has received written
notice from a person authorized to use the account that the check,
draft, or payment was unauthorized; and
(C) the person authorized to use the account has
filed a report concerning the unauthorized check, draft, or payment
with a law enforcement agency [, as defined by Article 59.01, Code
of Criminal Procedure,] and has provided the debt collector with a
copy of the report.
(d) In this section, "law enforcement agency" means an
agency of the state or an agency of a political subdivision of the
state authorized by law to employ peace officers.
SECTION 14. Section 45.193(d), Government Code, is amended
to read as follows:
(d) The county attorney has no power, duty, or privilege in
Grimes County relating to criminal matters, including asset
forfeitures under Chapter 59A [59], Code of Criminal Procedure,
appearance bond forfeitures under Chapter 17, Code of Criminal
Procedure, and habeas corpus related to criminal matters.
SECTION 15. Section 54.2205(a), Government Code, is amended
to read as follows:
(a) The judge of a district court or county court at law or a
justice of the peace may refer to a magistrate any case or matter
relating to a case for proceedings involving:
(1) a negotiated plea of guilty or no contest and
sentencing before the court;
(2) a bond forfeiture, remittitur, and related
proceedings;
(3) a pretrial motion;
(4) a writ of habeas corpus;
(5) an examining trial;
(6) an occupational driver's license;
(7) a petition for an order of expunction under
Chapter 55, Code of Criminal Procedure;
(8) a [an asset] forfeiture proceeding [hearing] as
provided by Chapter 59A [59], Code of Criminal Procedure;
(9) a petition for an order of nondisclosure of
criminal history record information or an order of nondisclosure of
criminal history record information that does not require a
petition provided by Subchapter E-1, Chapter 411;
(10) a motion to modify or revoke community
supervision or to proceed with an adjudication of guilt;
(11) setting conditions, modifying, revoking, and
surrendering of bonds, including surety bonds;
(12) specialty court proceedings;
(13) a waiver of extradition;
(14) selection of a jury; and
(15) any other matter the judge or justice of the peace
considers necessary and proper.
SECTION 16. Section 54.2405(a), Government Code, is amended
to read as follows:
(a) The judge of a district court or county court at law or a
justice of the peace may refer to a magistrate any case or matter
relating to a case for proceedings involving:
(1) a negotiated plea of guilty or no contest and
sentencing before the court;
(2) a bond forfeiture, remittitur, and related
proceedings;
(3) a pretrial motion;
(4) a writ of habeas corpus;
(5) an examining trial;
(6) an occupational driver's license;
(7) a petition for an order of expunction under
Chapter 55, Code of Criminal Procedure;
(8) a [an asset] forfeiture proceeding [hearing] as
provided by Chapter 59A [59], Code of Criminal Procedure;
(9) a petition for an order of nondisclosure of
criminal history record information or an order of nondisclosure of
criminal history record information that does not require a
petition provided by Subchapter E-1, Chapter 411;
(10) a motion to modify or revoke community
supervision or to proceed with an adjudication of guilt;
(11) setting conditions, modifying, revoking, and
surrendering of bonds, including surety bonds;
(12) specialty court proceedings;
(13) a waiver of extradition;
(14) selection of a jury; and
(15) any other matter the judge or justice of the peace
considers necessary and proper.
SECTION 17. Section 54.2606(a), Government Code, is amended
to read as follows:
(a) A judge may refer to a magistrate any criminal case or
matter relating to a criminal case for proceedings involving:
(1) a negotiated plea of guilty or no contest and
sentencing before the court;
(2) a bond forfeiture, remittitur, and related
proceedings;
(3) a pretrial motion;
(4) a writ of habeas corpus;
(5) an examining trial;
(6) an occupational driver's license;
(7) a petition for an order of expunction under
Chapter 55, Code of Criminal Procedure;
(8) a [an asset] forfeiture proceeding [hearing] as
provided by Chapter 59A [59], Code of Criminal Procedure;
(9) a petition for an order of nondisclosure of
criminal history record information or an order of nondisclosure of
criminal history record information that does not require a
petition provided by Subchapter E-1, Chapter 411;
(10) a motion to modify or revoke community
supervision or to proceed with an adjudication of guilt [guilty];
(11) setting conditions, modifying, revoking, and
surrendering of bonds, including surety bonds;
(12) specialty court proceedings;
(13) a waiver of extradition; and
(14) any other matter the judge considers necessary
and proper.
SECTION 18. Section 54.656(a), Government Code, is amended
to read as follows:
(a) A judge may refer to a magistrate any criminal case or
matter relating to a criminal case for proceedings involving:
(1) a negotiated plea of guilty or no contest and
sentencing before the court;
(2) a bond forfeiture, remittitur, and related
proceedings;
(3) a pretrial motion;
(4) a writ of habeas corpus;
(5) an examining trial;
(6) an occupational driver's license;
(7) a petition for an order of expunction under
Chapter 55, Code of Criminal Procedure;
(8) a [an asset] forfeiture proceeding [hearing] as
provided by Chapter 59A [59], Code of Criminal Procedure;
(9) a petition for an order of nondisclosure of
criminal history record information or an order of nondisclosure of
criminal history record information that does not require a
petition provided by Subchapter E-1, Chapter 411;
(10) a motion to modify or revoke community
supervision or to proceed with an adjudication of guilt;
(11) setting conditions, modifying, revoking, and
surrendering of bonds, including surety bonds;
(12) specialty court proceedings;
(13) a waiver of extradition; and
(14) any other matter the judge considers necessary
and proper.
SECTION 19. Section 2007.003(b), Government Code, is
amended to read as follows:
(b) This chapter does not apply to the following
governmental actions:
(1) an action by a municipality except as provided by
Subsection (a)(3);
(2) a lawful forfeiture or seizure of property under
Chapter 59A [contraband as defined by Article 59.01], Code of
Criminal Procedure;
(3) a lawful seizure of property as evidence of a crime
or violation of law;
(4) an action, including an action of a political
subdivision, that is reasonably taken to fulfill an obligation
mandated by federal law or an action of a political subdivision that
is reasonably taken to fulfill an obligation mandated by state law;
(5) the discontinuance or modification of a program or
regulation that provides a unilateral expectation that does not
rise to the level of a recognized interest in private real property;
(6) an action taken to prohibit or restrict a
condition or use of private real property if the governmental
entity proves that the condition or use constitutes a public or
private nuisance as defined by background principles of nuisance
and property law of this state;
(7) an action taken out of a reasonable good faith
belief that the action is necessary to prevent a grave and immediate
threat to life or property;
(8) a formal exercise of the power of eminent domain;
(9) an action taken under a state mandate to prevent
waste of oil and gas, protect correlative rights of owners of
interests in oil or gas, or prevent pollution related to oil and gas
activities;
(10) a rule or proclamation adopted for the purpose of
regulating water safety, hunting, fishing, or control of
nonindigenous or exotic aquatic resources;
(11) an action taken by a political subdivision:
(A) to regulate construction in an area
designated under law as a floodplain;
(B) to regulate on-site sewage facilities;
(C) under the political subdivision's
[subdivisions's] statutory authority to prevent waste or protect
rights of owners of interest in groundwater; or
(D) to prevent subsidence;
(12) the appraisal of property for purposes of ad
valorem taxation;
(13) an action that:
(A) is taken in response to a real and
substantial threat to public health and safety;
(B) is designed to significantly advance the
health and safety purpose; and
(C) does not impose a greater burden than is
necessary to achieve the health and safety purpose; or
(14) an action or rulemaking undertaken by the Public
Utility Commission of Texas to order or require the location or
placement of telecommunications equipment owned by another party on
the premises of a certificated local exchange company.
SECTION 20. Section 481.159(a), Health and Safety Code, is
amended to read as follows:
(a) If a district court orders the forfeiture of a
controlled substance property or plant under the [Chapter 59,] Code
of Criminal Procedure[,] or under this code, the court shall also
order a law enforcement agency or a criminal justice agency to which
the law enforcement agency transferred the property or plant for
analysis and storage to:
(1) retain the property or plant for official law
enforcement purposes, including use in the investigation of
offenses under this code;
(2) deliver the property or plant to a government
agency for official purposes;
(3) deliver the property or plant to a person
authorized by the court to receive it;
(4) deliver the property or plant to a person
authorized by the director to receive it; or
(5) destroy the property or plant that is not
otherwise disposed of in the manner prescribed by this subchapter.
SECTION 21. Section 481.160(a), Health and Safety Code, is
amended to read as follows:
(a) If a controlled substance property or plant is forfeited
under this code or under the [Chapter 59,] Code of Criminal
Procedure, the law enforcement agency that seized the property or
plant or to which the property or plant is forfeited or a criminal
justice agency to which the law enforcement agency transferred the
property or plant for analysis and storage may summarily destroy
the property or plant without a court order, or otherwise dispose of
the property or plant in lieu of destruction in accordance with
Section 481.161, before the disposition of a case arising out of the
forfeiture if the agency ensures that:
(1) at least five random and representative samples
are taken from the total amount of the property or plant and a
sufficient quantity is preserved to provide for discovery by
parties entitled to discovery;
(2) photographs are taken that reasonably depict the
total amount of the property or plant; and
(3) the gross weight or liquid measure of the property
or plant is determined, either by actually weighing or measuring
the property or plant or by estimating its weight or measurement
after making dimensional measurements of the total amount seized.
SECTION 22. Section 573.0001(2), Health and Safety Code, is
amended to read as follows:
(2) "Law enforcement agency" means an agency of the
state or an agency of a political subdivision of the state
authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 23. Section 113.008(g), Local Government Code, is
amended to read as follows:
(g) Subsections (b-1) and (f)(2) do not apply to a special
fund administered by an attorney representing the state under
Chapter 18 or [,] 47, [or 59,] Code of Criminal Procedure.
SECTION 24. Section 1701.253(g), Occupations Code, is
amended to read as follows:
(g) As part of the minimum curriculum requirements, the
commission shall establish a statewide comprehensive education and
training program on criminal asset forfeiture under Chapter 59A
[59], Code of Criminal Procedure, for officers licensed under this
chapter. An officer shall complete a program established under
this subsection not later than the second anniversary of the date
the officer is licensed under this chapter or the date the officer
applies for an intermediate proficiency certificate, whichever
date is earlier.
SECTION 25. Section 37.08(b), Penal Code, is amended to
read as follows:
(b) In this section, "law enforcement agency" means an
agency of the state or an agency of a political subdivision of the
state authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 26. Section 38.152(c)(3), Penal Code, is amended to
read as follows:
(3) "Law enforcement agency" means an agency of the
state or an agency of a political subdivision of the state
authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 27. The following provisions are repealed:
(1) Section 140A.102(h), Civil Practice and Remedies
Code;
(2) Article 18.17, Code of Criminal Procedure;
(3) Chapter 59, Code of Criminal Procedure;
(4) Sections 24.377(c), 54.2205(b), 54.2405(b),
54.2606(b), and 54.656(b), Government Code;
(5) Section 365.012(i), Health and Safety Code; and
(6) Sections 12.101(1) and (2), 12.1106, 61.0221, and
62.017, Parks and Wildlife Code.
SECTION 28. (a) Except as provided by Subsection (b) of
this section, on the effective date of this Act, any property in the
possession of a law enforcement agency, game warden, or attorney
representing the state, that was seized under Chapter 59, Code of
Criminal Procedure, or Section 12.1106, 61.0221, or 62.017, Parks
and Wildlife Code, and that has not been ordered forfeited to the
state by a court, must be returned to the person from whom the
property was seized.
(b) Property that is evidence in the investigation or
prosecution of a criminal offense is not required to be returned
under Subsection (a) of this section until the disposition of all
charges relating to the offense.
SECTION 29. The repeal by this Act of Article 18.17, Code of
Criminal Procedure, does not apply to abandoned or unclaimed
property seized before the effective date of this Act, and the
former Article 18.17 is continued in effect for the purposes of the
disposition of property described by this section.
SECTION 30. This Act takes effect September 1, 2023.