88R12506 SCL-F
By: Flores, Hinojosa S.B. No. 1788
A BILL TO BE ENTITLED
AN ACT
relating to organized crime, racketeering activities, and
collection of unlawful debts; providing a civil penalty; creating
criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 140B to read as follows:
CHAPTER 140B. CIVIL REMEDIES AND ENFORCEMENT RELATED TO
RACKETEERING AND UNLAWFUL DEBT COLLECTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 140B.001. DEFINITIONS. In this chapter:
(1) "Beneficial interest":
(A) means the interest of a person:
(i) as a beneficiary under a trust
established under the Texas Trust Code (Subtitle B, Title 9,
Property Code) in which the trustee for the trust holds legal or
record title to real property;
(ii) as a beneficiary under any other trust
arrangement under which a trustee holds legal or record title to
real property for the benefit of the person; or
(iii) under any other form of express
fiduciary arrangement under which any other person holds legal or
record title to real property for the benefit of the person; and
(B) does not include the interest of a
shareholder in a corporation or the interest of a partner in either
a general partnership or a limited partnership.
(2) "Cash or cash proceeds" includes:
(A) damages, penalties, or any other monetary
payment;
(B) monetary proceeds from property forfeited to
the state under Subchapter C; or
(C) any payment made by a defendant by reason of a
decree or settlement in an action filed under Subchapter C.
(3) "Enterprise" means a legal entity, group of
individuals associated in fact, or a combination of those entities
and individuals.
(4) "Investigative agency" means the Department of
Public Safety, the attorney general, or a local prosecutor.
(5) "Local prosecutor" means a district attorney,
criminal district attorney, or county attorney with felony criminal
jurisdiction.
(6) "Real property" means any real property or any
interest in real property, including any lease of or mortgage on
real property.
Sec. 140B.002. SPECIAL DOCKETING PROCEDURES. The attorney
general or local prosecutor may file with the clerk of the district
court in which an action is brought under this chapter a certificate
stating that the case is of special public importance. The clerk
must immediately furnish a copy of the certificate to the
administrative judge of the district court of the county in which
the action is pending. On receiving the copy of the certificate,
the administrative judge shall immediately designate a judge to
hear and determine the action. The designated judge shall promptly
assign the action for hearing, participate in hearings, make
determinations, and cause the action to be expedited.
Sec. 140B.003. PREVIOUSLY SEIZED ASSETS. Notwithstanding
any other provision of this chapter, a remedy provided by this
chapter may not be assessed against, and the attorney general may
not claim or pursue in an action brought under this chapter, any
proceeds, contraband, or other property of any kind over which a law
enforcement authority has previously asserted jurisdiction under
Chapter 59, Code of Criminal Procedure, at the time an action under
this chapter was filed.
SUBCHAPTER B. CIVIL INVESTIGATIVE AUTHORITY
Sec. 140B.051. AUTHORITY TO INVESTIGATE. If, in connection
with civil enforcement authority provided under Subchapter C, an
investigative agency has reason to believe that a person or
enterprise has engaged in, or is engaging in, conduct constituting
an offense under Section 72.02, 72.03, or 72.04, Penal Code, the
investigative agency may administer oaths, subpoena witnesses or
material, and collect evidence.
Sec. 140B.052. SUBPOENAS. (a) A subpoena issued under this
subchapter is confidential until the 120th day after the date of its
issuance. The subpoenaed person may not disclose the existence of
the subpoena to any person other than the subpoenaed person's
attorney during the 120-day period.
(b) A subpoena issued under this subchapter must include a
reference to the confidentiality of the subpoena and a notice to the
recipient of the subpoena that disclosure of the existence of the
subpoena to any other person except the subpoenaed person's
attorney is prohibited.
(c) The investigative agency may apply ex parte to the
district court for the district in which the subpoenaed person
resides, is found, or transacts business for an order directing
that the subpoenaed person not disclose the existence of the
subpoena to any other person except the subpoenaed person's
attorney for an additional period of time for good cause shown by
the investigative agency.
(d) An order under Subsection (c) shall be served on the
subpoenaed person with the subpoena, and the subpoena must include
a reference to the order and a notice to the recipient of the
subpoena that disclosure of the existence of the subpoena to any
other person in violation of the order may subject the subpoenaed
person to punishment for contempt of court.
(e) An order under Subsection (c) may be granted by the
court only on a showing:
(1) of sufficient factual grounds to reasonably
indicate conduct constituting an offense under Section 72.02,
72.03, or 72.04, Penal Code;
(2) that the documents or testimony sought appear
reasonably calculated to lead to the discovery of admissible
evidence; and
(3) of facts that reasonably indicate that disclosure
of the subpoena would hamper or impede the investigation or would
result in a flight from prosecution for an offense described by
Subdivision (1).
Sec. 140B.053. SUBPOENA FOR MATTER OUTSIDE STATE. If a
matter that an investigative agency seeks to obtain by a subpoena
issued under this subchapter is located outside this state, the
subpoenaed person may make that matter available to the
investigative agency or its representative for examination at the
place where the matter is located. The investigative agency may
designate representatives, including officials of the jurisdiction
in which the matter is located, to inspect the matter on its behalf
and may respond to similar requests from officials of other
jurisdictions.
Sec. 140B.054. FAILURE TO OBEY SUBPOENA. On failure of a
person, without lawful excuse, to obey a subpoena issued under this
chapter, and after reasonable notice to that person, an
investigative agency may apply for an order compelling compliance
to:
(1) the district court in which a civil action for
which the subpoena is issued is pending; or
(2) if no civil action is pending, the district court
for the judicial district in which the person resides, is found, or
transacts business.
Sec. 140B.055. USE OF TESTIMONY OR MATERIAL SUBJECT TO
SELF-INCRIMINATION PRIVILEGE. Except in a prosecution for perjury,
an individual who complies with a court order to provide testimony
or material after asserting a privilege against self-incrimination
to which the individual is entitled by law may not have the
testimony or material so provided, or evidence derived from the
testimony or material, received against the individual in any
criminal investigation or proceeding.
Sec. 140B.056. CONTEMPT OF COURT. A person who fails to
obey a court order entered under this subchapter may be punished for
contempt of court.
Sec. 140B.057. PROTECTIVE ORDERS. The investigative agency
may stipulate to protective orders with respect to documents and
information submitted in response to a subpoena issued under this
subchapter.
Sec. 140B.058. CONFIDENTIAL INFORMATION. (a) Information
held by an investigative agency related to an investigation of
conduct constituting an offense under Section 72.02, 72.03, or
72.04, Penal Code, is confidential and exempt from disclosure under
Chapter 552, Government Code.
(b) Information made confidential and exempt under
Subsection (a) may be disclosed by an investigative agency to:
(1) a governmental entity in the performance of its
official duties; or
(2) a court or tribunal.
(c) Information made confidential and exempt under
Subsection (a) is no longer confidential and exempt once all
investigations to which the information pertains are completed,
unless the information is otherwise protected by law.
(d) For purposes of this section, an investigation is
considered complete once the investigative agency either files an
action or closes its investigation without filing an action.
SUBCHAPTER C. CIVIL REMEDIES
Sec. 140B.101. CIVIL REMEDIES. A district court may, after
making due provision for the rights of innocent persons, enjoin
conduct constituting an offense under Section 72.02, 72.03, or
72.04, Penal Code, by issuing appropriate orders and judgments,
including:
(1) ordering a defendant to divest of any interest in
any enterprise, including real property;
(2) imposing reasonable restrictions on the future
activities or investments of a defendant, including prohibiting a
defendant from engaging in the same type of endeavor as the
enterprise in which the defendant was engaged in conduct
constituting an offense under Section 72.02, 72.03, or 72.04, Penal
Code;
(3) ordering the dissolution or reorganization of an
enterprise;
(4) ordering the suspension or revocation of a
license, permit, or approval previously granted to an enterprise by
any state agency; or
(5) ordering the forfeiture of the charter of a
corporation organized under the laws of this state, or the
revocation of a certificate allowing a foreign corporation to
conduct business within this state, on finding that:
(A) the board of directors or a managerial agent
acting on behalf of the corporation, in conducting the affairs of
the corporation, has authorized or engaged in conduct constituting
an offense under Section 72.02, 72.03, or 72.04, Penal Code; and
(B) for the prevention of future criminal
activity, the public interest requires the charter of the
corporation forfeited and the corporation dissolved or the
certificate revoked.
Sec. 140B.102. CIVIL FORFEITURE OF PROPERTY. (a) All
property, real or personal, including money, used in the course of,
intended for use in the course of, derived from, or realized through
conduct constituting an offense under Section 72.02, 72.03, or
72.04, Penal Code, is subject to civil forfeiture to the state.
(b) An investigative agency, on behalf of this state, may
bring a civil action for forfeiture:
(1) in the district court for the judicial district in
which real or personal tangible property described by Subsection
(a) is located; and
(2) in a district court in this state regarding
intangible property described by Subsection (a).
(c) On entry of a final judgment of forfeiture in favor of
the state, the title of the state to the forfeited property shall
relate back:
(1) in the case of real property or a beneficial
interest:
(A) to the date of filing of a lien notice under
Chapter 68, Property Code, in the official records of the county
where the real property or beneficial trust is located;
(B) if no lien notice is filed, to the date of the
filing of any notice of lis pendens under Section 68.056(a),
Property Code, in the official records of the county where the real
property or beneficial interest is located; or
(C) if no lien notice or notice of lis pendens is
filed, to the date of recording of the final judgment of forfeiture
in the official records of the county where the real property or
beneficial interest is located; or
(2) in the case of personal property, to the date the
personal property was seized by the investigative agency.
(d) For purposes of this section, a beneficial interest is
considered to be located where real property owned by the trustee is
located.
Sec. 140B.103. CONVEYANCE OF PROPERTY SUBJECT TO
FORFEITURE. (a) If property subject to forfeiture is conveyed,
alienated, disposed of, diminished in value, or otherwise rendered
unavailable for forfeiture, the investigative agency may, on behalf
of the state, bring an action in any district court against the
person named in the lien notice under Chapter 68, Property Code, or
the defendant in the relevant civil action or criminal proceeding.
If a civil action is pending, the action shall be filed only in the
court where the civil action is pending.
(b) The court in an action brought under Subsection (a)
shall:
(1) enter final judgment against the person named in
the lien notice or the defendant in the relevant civil action or
criminal proceeding in an amount equal to:
(A) the fair market value of the property; and
(B) the investigative costs and attorney fees
incurred by the investigative agency in the action; or
(2) order the forfeiture of any other property of the
defendant up to the value of the property subject to forfeiture.
Sec. 140B.104. DISPOSITION OF FORFEITED PROPERTY. (a) The
state shall dispose of all forfeited property as soon as
commercially feasible. If property is not exercisable or
transferable for value by the state, the state may destroy or
otherwise dispose of the property.
(b) All forfeitures or dispositions under this subchapter
shall be made with due provision for the rights of innocent persons.
(c) The state shall promptly distribute the proceeds
realized from the forfeiture and disposition of property under this
section in accordance with Subchapter D.
Sec. 140B.105. SEIZURE OF PROPERTY. (a) Property subject
to forfeiture under this subchapter may be seized by a law
enforcement officer on court process. Seizure without process may
be made if:
(1) the seizure is incident to a lawful arrest or
search conducted under a warrant issued under Chapter 18, Code of
Criminal Procedure; or
(2) the property subject to seizure has been the
subject of a previous judgment in favor of the state in a forfeiture
action brought under this subchapter.
(b) For a seizure conducted under this section, an
investigative agency shall promptly commence a forfeiture action
under Section 140B.102.
Sec. 140B.106. STORAGE OF SEIZED PROPERTY PENDING
FORFEITURE ACTION. Property taken or detained under this
subchapter is not subject to replevin but is considered to be in the
custody of the law enforcement officer making the seizure, subject
only to the order of the court. When property is seized under this
subchapter, pending forfeiture and final disposition, the law
enforcement officer may:
(1) place the property under seal;
(2) remove the property to a place designated by a
court; or
(3) require another agency authorized by law to take
custody of the property and remove it to an appropriate location.
Sec. 140B.107. CIVIL ACTION BROUGHT BY ATTORNEY GENERAL OR
LOCAL PROSECUTOR. (a) The office of the attorney general, a
district attorney, or a state agency having jurisdiction over
conduct constituting an offense under Section 72.02, 72.03, or
72.04, Penal Code, may institute civil actions under this
subchapter.
(b) In an action brought under this subchapter, the district
court shall proceed as soon as practicable to the hearing and
determination. Pending final determination, the district court may
at any time enter injunctions, prohibitions, or restraining orders,
or take actions, including the acceptance of satisfactory
performance bonds, the court considers proper.
Sec. 140B.108. CIVIL ACTION BROUGHT BY AGGRIEVED PERSON.
(a) An aggrieved person may bring an action under Section 140B.101.
(b) In an action brought as described by Subsection (a), a
court shall grant relief in conformity with the principles that
govern the granting of injunctive relief from threatened loss or
damage in other civil cases, except that a showing of special or
irreparable damage to the aggrieved person is not required.
(c) On the execution of proper bond against damages for an
injunction improvidently granted and a showing of immediate danger
of significant loss or damage, a court may issue a temporary
restraining order and a preliminary injunction in the action before
a final determination on the merits.
Sec. 140B.109. OTHER CIVIL ACTIONS BROUGHT BY GOVERNMENTAL
CLAIMANTS. (a) The state, a state agency, or a political
subdivision may bring an action against a person who engages in
conduct constituting an offense under Section 72.02, 72.03, or
72.04, Penal Code, as provided by this section.
(b) A claimant in an action brought under this section:
(1) must prove by clear and convincing evidence the
claimant is injured as a result of the conduct that is the basis for
the action;
(2) may recover:
(A) three times the claimant's actual damages;
and
(B) reasonable attorney's fees and reasonably
incurred costs of investigation and litigation; and
(3) may not recover exemplary damages.
(c) The defendant is entitled to recover reasonable
attorney's fees and court costs in an action brought under this
section on a finding that the claimant raised a claim that was
without substantial factual or legal support.
(d) Either party may demand a trial by jury in an action
brought under this section.
Sec. 140B.110. RECOVERY FROM FORFEITED PROPERTY. A
prevailing claimant in an action under this subchapter other than
the state or a political subdivision shall have a right or claim to
forfeited property or proceeds derived from the property superior
to any right or claim the state or political subdivision has in the
same property or proceeds.
Sec. 140B.111. EFFECT OF FINAL JUDGMENT OR DECREE. A final
judgment or decree rendered in favor of this state in a criminal
proceeding under state law prevents the defendant from asserting in
any subsequent civil action brought under this chapter any matter
as to which that judgment or decree would be an estoppel as between
the parties.
Sec. 140B.112. OTHER RELIEF AVAILABLE TO ATTORNEY GENERAL.
(a) The attorney general may bring an action against a person who
engages in conduct constituting an offense under Section 72.02,
72.03, or 72.04, Penal Code, to obtain:
(1) injunctive relief;
(2) a civil penalty as provided by this section; and
(3) reasonable attorney's fees and reasonably incurred
costs of investigation or litigation.
(b) A defendant in an action brought under this section is
subject to a civil penalty not to exceed:
(1) $100,000 if the defendant is an individual; or
(2) $1 million if the defendant is not an individual.
(c) The attorney general shall deposit a civil penalty
collected under this section to the credit of the general revenue
fund. The attorney general shall deposit attorney's fees and costs
collected under this section into the attorney general law
enforcement account, which may be used to investigate and enforce
this chapter.
(d) Any party to an action brought under this section may
petition the court for entry of a consent decree or for approval of
a settlement agreement. The proposed decree or settlement must
specify the alleged violations, the future obligations of the
parties, the relief agreed on, and the reasons for entering into the
consent decree or settlement agreement.
Sec. 140B.113. INTERVENTION BY ATTORNEY GENERAL. The
attorney general may, on timely application, intervene in a civil
action brought under Section 140B.108 or 140B.109 if the attorney
general certifies that, in the attorney general's opinion, the
action is of general public importance. In the action, the state is
entitled to the same relief as if the attorney general had
instituted the action.
Sec. 140B.114. LIMITATIONS; TOLLING. (a) Notwithstanding
any other law, a person must bring an action under this chapter not
later than the fifth anniversary of the later of:
(1) the date the conduct that is the basis for the
action terminates; or
(2) the date the cause of action accrues.
(b) If an indictment for an offense under Section 72.02,
72.03, or 72.04, Penal Code, is presented or a civil action is
brought, or intervened in, to punish, prevent, or restrain conduct
constituting an offense under Section 72.02, 72.03, or 72.04, Penal
Code, the running of the period of limitations prescribed by this
section with respect to any cause of action arising under Section
140B.108, 140B.109, or 140B.112 that is wholly or partly based on a
matter complained of in the indictment or the pleadings in the
action, as applicable, is suspended during the pendency of the
prosecution or litigation of the action, as applicable, and
extended for two years following its termination.
Sec. 140B.115. MULTIPLE REMEDIES ALLOWED. The application
of one civil remedy under a provision of this chapter does not
preclude the application of any other remedy, civil or criminal,
under this chapter or any other law. Civil remedies under this
chapter are supplemental and not mutually exclusive.
SUBCHAPTER D. DISPOSITION OF FUNDS OBTAINED THROUGH FORFEITURE
ACTIONS
Sec. 140B.151. INITIAL DISTRIBUTION. (a) A court entering
a judgment of forfeiture in an action brought under Subchapter C
retains jurisdiction to direct the distribution of any cash or cash
proceeds realized from the forfeiture and disposition of the
property. The court shall direct the distribution of the funds in
the following order of priority:
(1) statutory fees to which the clerk of the court may
be entitled;
(2) claims against the property by persons who have
previously been judicially determined to be innocent persons and
whose interests are preserved from forfeiture by the court and not
otherwise satisfied; and
(3) subject to Subsection (c), claims for restitution
by victims of the racketeering activity.
(b) A claim under Subsection (a)(2) may include a claim by a
person appointed by the court as receiver pending litigation.
(c) If the attorney general brought the forfeiture action,
restitution shall be distributed though the compensation to victims
of crime fund. If the attorney general did not bring the forfeiture
action, restitution shall be distributed by the clerk of the court.
Sec. 140B.152. DISTRIBUTION OF REMAINING MONEY. (a)
Following satisfaction of all valid claims under Section 140B.151,
the remaining money obtained in the forfeiture proceeding shall be
deposited as follows:
(1) 25 percent into the appropriate trust fund of the
attorney general or local prosecutor's office that filed the civil
forfeiture action as provided by Subsection (c);
(2) 25 percent into the applicable law enforcement
trust fund of the investigative agency that conducted the
investigation that resulted in or significantly contributed to the
forfeiture of the property as provided by Subsection (d); and
(3) 50 percent into the general revenue fund.
(b) If a forfeiture action is filed by the attorney general
or a local prosecutor, the court entering the judgment of
forfeiture shall, taking into account the overall effort and
contribution to the investigation and forfeiture action by the
agencies that filed the action, make a pro rata apportionment among
those agencies of the money available for distribution to those
agencies as provided by this subchapter. If multiple investigative
agencies have contributed to the forfeiture of the property, the
court that entered the judgment of forfeiture shall, taking into
account the overall effort and contribution of the agencies to the
investigation and forfeiture action, make a pro rata apportionment
among those investigative agencies of the money available for
distribution to the investigative agencies as provided by this
subchapter.
(c) If a forfeiture action is filed by the attorney general,
any money obtained by the attorney general under this section shall
be deposited in the same manner described by Article 59.06(k)(3),
Code of Criminal Procedure, and may be expended for the purposes and
in the manner authorized by that section.
(d) If a forfeiture action is filed by a district or county
attorney, any money obtained by the district or county attorney's
office under this section may be used to pay the costs of
investigations under Subchapter B and the resulting criminal
prosecutions and civil actions. Such costs may include:
(1) all taxable costs;
(2) costs of protecting, maintaining, and forfeiting
the property;
(3) employees' base salaries and compensation for
overtime; and
(4) other costs that are directly attributable to the
investigation, prosecution, or civil action.
(e) Any money distributed to an investigative agency under
Subsection (a) shall be deposited in the applicable law enforcement
fund or account established for that agency and expended for the
purposes and in the manner authorized for that fund or account. In
addition, any money distributed to an investigative agency under
this section may be used to pay the costs of investigations under
Subchapter B and the resulting criminal prosecutions and civil
actions. Such costs may include:
(1) all taxable costs;
(2) costs of protecting, maintaining, and forfeiting
the property;
(3) employees' base salaries and compensation for
overtime; and
(4) other costs directly attributable to the
investigation, prosecution, or civil action.
Sec. 140B.153. EFFECT ON SETTLEMENTS. (a) This subchapter
may not be construed to limit the authority of an entity that files
a forfeiture action under Subchapter C to settle a claim for
forfeiture.
(b) Any proceeds arising from a settlement or from the sale
of property obtained in a settlement shall be distributed in the
manner described by Sections 140B.151 and 140B.152.
Sec. 140B.154. TEMPORARY DEPOSIT IN COURT REGISTRY.
Pending the final distribution of the cash or cash proceeds under
this subchapter, the court may authorize the cash or cash proceeds
to be deposited in the court registry or in a qualified public
depository.
SECTION 2. Article 12.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Articles
12.015 and [Article] 12.03, felony indictments may be presented
within these limits, and not afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2),
Penal Code, or aggravated sexual assault under Section
22.021(a)(1)(B), Penal Code;
(C) sexual assault, if:
(i) during the investigation of the offense
biological matter is collected and the matter:
(a) has not yet been subjected to
forensic DNA testing; or
(b) has been subjected to forensic DNA
testing and the testing results show that the matter does not match
the victim or any other person whose identity is readily
ascertained; or
(ii) probable cause exists to believe that
the defendant has committed the same or a similar sex offense
against five or more victims;
(D) continuous sexual abuse of young child or
disabled individual under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11,
Penal Code;
(F) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(G) trafficking of persons under Section
20A.02(a)(7) or (8), Penal Code;
(H) continuous trafficking of persons under
Section 20A.03, Penal Code; or
(I) compelling prostitution under Section
43.05(a)(2), Penal Code;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which the public servant exercises control in the
public servant's official capacity;
(C) forgery or the uttering, using, or passing of
forged instruments;
(D) injury to an elderly or disabled individual
punishable as a felony of the first degree under Section 22.04,
Penal Code;
(E) sexual assault, except as provided by
Subdivision (1) or (7);
(F) arson;
(G) trafficking of persons under Section
20A.02(a)(1), (2), (3), or (4), Penal Code; or
(H) compelling prostitution under Section
43.05(a)(1), Penal Code;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) fraudulent securing of document execution;
(C) a felony violation under Chapter 162, Tax
Code;
(D) false statement to obtain property or credit
under Section 32.32, Penal Code;
(E) money laundering;
(F) credit card or debit card abuse under Section
32.31, Penal Code;
(G) fraudulent use or possession of identifying
information under Section 32.51, Penal Code;
(H) exploitation of a child, elderly individual,
or disabled individual under Section 32.53, Penal Code;
(I) health care fraud under Section 35A.02, Penal
Code; or
(J) bigamy under Section 25.01, Penal Code,
except as provided by Subdivision (6);
(4) five years from the date of the commission of the
offense:
(A) theft or robbery;
(B) except as provided by Subdivision (5),
kidnapping or burglary;
(C) injury to an elderly or disabled individual
that is not punishable as a felony of the first degree under Section
22.04, Penal Code;
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) if the investigation of the offense shows that the
victim is younger than 17 years of age at the time the offense is
committed, 20 years from the 18th birthday of the victim of one of
the following offenses:
(A) sexual performance by a child under Section
43.25, Penal Code;
(B) aggravated kidnapping under Section
20.04(a)(4), Penal Code, if the defendant committed the offense
with the intent to violate or abuse the victim sexually; or
(C) burglary under Section 30.02, Penal Code, if
the offense is punishable under Subsection (d) of that section and
the defendant committed the offense with the intent to commit an
offense described by Subdivision (1)(B) or (D) of this article or
Paragraph (B) of this subdivision;
(6) ten years from the 18th birthday of the victim of
the offense:
(A) trafficking of persons under Section
20A.02(a)(5) or (6), Penal Code;
(B) injury to a child under Section 22.04, Penal
Code; or
(C) bigamy under Section 25.01, Penal Code, if
the investigation of the offense shows that the person, other than
the legal spouse of the defendant, whom the defendant marries or
purports to marry or with whom the defendant lives under the
appearance of being married is younger than 18 years of age at the
time the offense is committed;
(7) two years from the date the offense was
discovered: sexual assault punishable as a state jail felony under
Section 22.011(f)(2), Penal Code; or
(8) three years from the date of the commission of the
offense: all other felonies.
SECTION 3. Chapter 12, Code of Criminal Procedure, is
amended by adding Article 12.015 to read as follows:
Art. 12.015. RACKETEERING AND UNLAWFUL DEBT COLLECTION.
(a) Except as provided by Subsection (b), a felony indictment for
an offense under Section 72.02, 72.03, or 72.04, Penal Code, must be
presented not later than five years from the date of the commission
of the offense.
(b) If the attorney general or a local prosecutor, as
defined by Section 140B.001, Civil Practice and Remedies Code,
brings an action in the name of the state under Chapter 140B, Civil
Practice and Remedies Code, during the limitations period described
by Subsection (a), that limitations period is suspended while the
attorney general's or local prosecutor's action is pending. If a
limitations period is suspended under this subsection, the
limitations period is extended for two years.
SECTION 4. Section 71.01(d), Penal Code, is amended to read
as follows:
(d) "Criminal street gang" means two [three] or more persons
having a common identifying sign or symbol or an identifiable
leadership who continuously or regularly associate in the
commission of criminal activities.
SECTION 5. Section 71.02(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, continuous sexual abuse of young child or disabled
individual, solicitation of a minor, forgery, deadly conduct,
assault punishable as a Class A misdemeanor, burglary of a motor
vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or
distribution of a controlled substance or dangerous drug in
violation of Subtitle B, Title 3, Occupations Code;
(5-b) any unlawful possession with intent to deliver a
controlled substance or dangerous drug;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) any offense under Section 42.10;
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06;
(18) any offense under Section 16.02; or
(19) any offense classified as a felony under the Tax
Code.
SECTION 6. Title 11, Penal Code, is amended by adding
Chapter 72 to read as follows:
CHAPTER 72. RACKETEERING AND UNLAWFUL DEBT COLLECTION
Sec. 72.01. DEFINITIONS. In this chapter:
(1) "Enterprise" has the meaning assigned by Section
140B.001, Civil Practice and Remedies Code.
(2) "Pattern of racketeering" means engaging in at
least two incidents of racketeering conduct that have the same or
similar intents, results, accomplices, victims, or methods of
commission or that otherwise are interrelated by distinguishing
characteristics and are not isolated incidents, the last of which
occurred not later than the fifth anniversary of the date of a
previous incident of racketeering conduct.
(3) "Pecuniary value" means:
(A) anything of value in the form of money, a
negotiable instrument, or a commercial interest or anything else
the primary significance of which is economic advantage; or
(B) any other property or service that has a
value in excess of $100.
(4) "Racketeering" means to commit, to attempt to
commit, to conspire to commit, or to solicit, coerce, or intimidate
another person to commit:
(A) a felony offense under The Securities Act
(Title 12, Government Code);
(B) an offense under Chapter 20A (trafficking of
persons);
(C) a felony offense under Chapter 37 (perjury
and other falsification);
(D) an offense under Section 38.03 (resisting
arrest, search, or transportation);
(E) an offense under Section 38.05 (hindering
apprehension or prosecution); or
(F) an offense under Section 71.02 (engaging in
organized criminal activity).
(5) "Real property" has the meaning assigned by
Section 140B.001, Civil Practice and Remedies Code.
(6) "Unlawful debt" means any money or other thing of
value constituting principal or interest of a debt that is wholly or
partly legally unenforceable in this state because the debt was
incurred or contracted:
(A) in violation of:
(i) the Texas Racing Act (Subtitle A-1,
Title 13, Occupations Code, and Article 179e, Revised Civil
Statutes);
(ii) Subtitle A, Title 4, Finance Code, or
Section 11, Article 16, Texas Constitution, relating to interest
and usury; or
(iii) Chapter 47, relating to gambling; or
(B) in gambling activity in violation of federal
law or in the business of lending money at a rate usurious under
state or federal law.
Sec. 72.02. USE OF PROCEEDS DERIVED FROM RACKETEERING OR
UNLAWFUL DEBT COLLECTION. (a) A person commits an offense if the
person intentionally uses or invests, whether directly or
indirectly, any part of any proceeds knowingly derived, directly or
indirectly, from a pattern of racketeering or through the
collection of an unlawful debt, or the proceeds derived from the
investment or use of those proceeds, in acquiring title to, or any
right, interest, or equity in, real property or in the
establishment or operation of any enterprise.
(b) An offense under this section is a felony of the second
degree.
Sec. 72.03. ACQUISITION OF INTEREST IN PROPERTY OR CONTROL
OF ENTERPRISE THROUGH RACKETEERING OR UNLAWFUL DEBT COLLECTION.
(a) A person commits an offense if the person, knowingly through a
pattern of racketeering or through the collection of an unlawful
debt, acquires or maintains, directly or indirectly, any interest
in or control of any enterprise or real property.
(b) An offense under this section is a felony of the second
degree.
Sec. 72.04. PARTICIPATION IN ENTERPRISE THROUGH
RACKETEERING OR UNLAWFUL DEBT COLLECTION. (a) A person commits an
offense if the person is employed by or associated with an
enterprise and knowingly conducts or participates, directly or
indirectly, in that enterprise through a pattern of racketeering or
the collection of an unlawful debt.
(b) An offense under this section is a felony of the second
degree.
Sec. 72.05. ALTERNATIVE FINE. Notwithstanding any other
law, a court, after a hearing, may impose a fine, instead of an
otherwise applicable fine, on a person convicted of an offense
under Section 72.02, 72.03, or 72.04, through which the person
derived pecuniary value or by which the person caused personal
injury, property damage, or other loss, that does not exceed:
(1) the greater of:
(A) three times the gross value gained as a
result of the offense; or
(B) three times the gross loss caused as a result
of the offense; and
(2) the amount of the court costs and the reasonably
incurred costs of investigation and prosecution.
SECTION 7. Subtitle B, Title 5, Property Code, is amended by
adding Chapter 68 to read as follows:
CHAPTER 68. RICO LIENS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 68.001. DEFINITIONS. In this chapter:
(1) "Beneficial interest," "investigative agency,"
"local prosecutor," and "real property" have the meanings assigned
by Section 140B.001, Civil Practice and Remedies Code.
(2) "RICO lien notice" means a lien notice filed under
Section 68.051 or 68.052.
(3) "Trustee":
(A) means:
(i) a person acting as trustee under a trust
established under the Texas Trust Code (Subtitle B, Title 9,
Property Code) in which the trustee holds legal or record title to
real property;
(ii) a person who holds legal or record
title to real property in which another person has a beneficial
interest; or
(iii) a successor trustee to a person
described by Subparagraph (i) or (ii); and
(B) does not include a person appointed or acting
as a personal representative as defined by Section 22.031, Estates
Code, or appointed or acting as a trustee of a testamentary trust or
as a trustee of an indenture of trust under which any bonds have
been or are to be issued.
SUBCHAPTER B. RICO LIEN NOTICE
Sec. 68.051. GENERAL RICO LIEN NOTICE. (a) On the
institution of a civil action, the investigative agency, then or at
any time during the pendency of the action, may file a RICO lien
notice in the official records of any one or more counties.
(b) A filing fee or other charge may not be required as a
condition for filing the RICO lien notice, and the clerk of the
district court, on the presentation of a RICO lien notice, shall
immediately record it in the official records.
Sec. 68.052. ATTORNEY GENERAL OR LOCAL PROSECUTOR RICO LIEN
NOTICE. (a) In addition to the authority to file a RICO lien notice
under Section 68.051, the attorney general or a local prosecutor
may apply ex parte to a district court and, on petition supported by
sworn affidavit, obtain an order authorizing the filing of a RICO
lien notice against real property on a showing of probable cause to
believe that the property was used in the course of, intended for
use in the course of, derived from, or realized through conduct
constituting an offense under Section 72.02, 72.03, or 72.04, Penal
Code.
(b) If the RICO lien notice authorization is granted, the
attorney general or local prosecutor shall, after filing the
notice, immediately provide notice to the owner of the property by:
(1) serving the notice in the manner provided by law
for the service of process;
(2) mailing the notice, postage prepaid, by certified
mail to the owner at the owner's last known address and obtaining
evidence of the delivery; or
(3) if service by a method described by Subdivision
(1) or (2) cannot be accomplished, posting the notice on the
premises.
(c) The owner of the property may move the court to
discharge the lien, and that motion shall be set for hearing at the
earliest possible time.
(d) The court shall discharge the lien if the court finds
that:
(1) there is no probable cause to believe that the
property was used in the course of, intended for use in the course
of, derived from, or realized through conduct constituting an
offense under Section 72.02, 72.03, or 72.04, Penal Code; or
(2) the owner of the property neither knew nor
reasonably should have known that the property was used in the
course of, intended for use in the course of, derived from, or
realized through conduct constituting an offense under Section
72.02, 72.03, or 72.04, Penal Code.
(e) Testimony presented by the property owner at the
hearing:
(1) is not admissible against the property owner in
any criminal proceeding except in a criminal prosecution for
perjury or false statement; and
(2) does not constitute a waiver of the property
owner's constitutional right against self-incrimination.
(f) Except as provided by Subsection (g), a RICO lien notice
secured under this section is valid for a period of 90 days from the
date the court granted authorization and may be extended for an
additional 90 days by the court for good cause shown.
(g) If a civil action is instituted under Chapter 140B,
Civil Practice and Remedies Code, and a RICO lien notice is filed
under this subchapter, the term of the lien notice is governed by
this subchapter.
(h) The filing of a RICO lien notice, regardless of whether
subsequently discharged or otherwise lifted, constitutes notice to
the owner and knowledge by the owner that the property was used in
the course of, intended for use in the course of, derived from, or
realized through conduct constituting an offense under Section
72.02, 72.03, or 72.04, Penal Code, such that lack of such notice
and knowledge is not a defense in any subsequent civil action under
Chapter 140B, Civil Practice and Remedies Code, or a subsequent
criminal proceeding under Chapter 72, Penal Code.
Sec. 68.053. FORMAT OF NOTICE. (a) A RICO lien notice must
be signed by the attorney general or the attorney general's
designee or by a local prosecutor or the local prosecutor's
designee.
(b) A RICO lien notice must be in the form prescribed by the
attorney general and must include:
(1) the name of the person against whom a civil action
has been brought under Chapter 140B, Civil Practice and Remedies
Code, and at the discretion of the investigative agency may also
include any other aliases, names, or fictitious names under which
the person may be known and any corporation, partnership, or other
entity that is either controlled or entirely owned by the person;
(2) if known to the investigative agency, the current
residence and business addresses of the person named in the notice
and of the other names included in the notice;
(3) a reference to an applicable civil action,
stating:
(A) that an action under Chapter 140B, Civil
Practice and Remedies Code, has been brought against the person
named in the notice;
(B) the name of each county in which the action
has been brought; and
(C) if known to the investigative agency at the
time of filing the notice, the cause number of the action;
(4) a statement that the notice is being filed under
this chapter; and
(5) the name and address of the investigative agency
filing the notice and the name of the individual signing the notice.
(c) A RICO lien notice must apply only to one person and, to
the extent applicable, any other aliases, names, or fictitious
names of that person, including the names of corporations,
partnerships, or other entities, to the extent permitted by
Subsection (b)(1). A separate notice must be filed for each person
against whom the investigative agency desires to file a RICO lien
notice under this subchapter.
Sec. 68.054. SERVICE OF NOTICE. (a) An investigative
agency shall, as soon as practicable after the filing of each RICO
lien notice, provide to the person named in the notice:
(1) a copy of the recorded notice; or
(2) a copy of the notice that states each county in
which the notice has been recorded.
(b) The failure of the investigative agency to provide a
copy of a RICO lien notice under this section does not invalidate or
otherwise affect the notice.
Sec. 68.055. CREATION AND PRIORITY OF RICO LIEN. (a)
Filing a RICO lien notice creates, from the time of its filing, a
lien in favor of the state on the following property of the person
named in the notice and against any other names set forth in the
notice:
(1) any real property situated in the county where the
notice is filed then or thereafter owned by the person or under any
of the names; and
(2) any beneficial interest situated in the county
where the notice is filed then or thereafter owned by the person or
under any of the names.
(b) The lien shall commence and attach as of the time of
filing of a RICO lien notice and shall continue thereafter until
expiration, termination, or release of the notice under this
subchapter. The lien created in favor of the state is superior to
the interest of any other person in the real property or beneficial
interest if the interest is acquired subsequent to the filing of the
notice.
(c) For purposes of this section, a beneficial interest is
considered to be located where real property owned by the trustee is
located.
Sec. 68.056. LIS PENDENS; INTERESTS OF PERSONS ACQUIRING
INTEREST IN PROPERTY. (a) In conjunction with a civil action
brought under Chapter 140B, Civil Practice and Remedies Code, an
investigative agency may file without prior court order in any
county a notice of lis pendens under Section 12.007. In such case,
a person acquiring an interest in the subject real property or
beneficial interest, if the real property or beneficial interest is
acquired subsequent to the filing of the notice of lis pendens,
shall take the interest subject to the civil action and any
subsequent judgment of forfeiture.
(b) In conjunction with a civil action brought under Chapter
140B, Civil Practice and Remedies Code, if a RICO lien notice has
been filed, an investigative agency may name as a defendant, in
addition to the person named in the notice, any person acquiring an
interest in the real property or beneficial interest subsequent to
the filing of the notice. If a judgment of forfeiture is entered in
the action in favor of the state, the interest of any person in the
property that was acquired subsequent to the filing of the notice
shall be subject to the notice and judgment of forfeiture.
Sec. 68.057. DUTIES OF TRUSTEE; CRIMINAL OFFENSE. (a) A
trustee who acquires actual knowledge that a RICO lien notice or a
civil action brought under Chapter 140B, Civil Practice and
Remedies Code, or criminal proceeding brought under Chapter 72,
Penal Code, has been filed against a person for whom the trustee
holds legal or record title to real property shall immediately
furnish to the appropriate investigative agency:
(1) the name and address of the person, as known to the
trustee;
(2) the name and address, as known to the trustee, of
each other person for whose benefit the trustee holds title to the
real property; and
(3) if requested by the investigative agency, a copy
of the trust agreement or other instrument under which the trustee
holds legal or record title to the real property.
(b) A trustee who violates this section commits an offense.
An offense under this subsection is a Class B misdemeanor.
Sec. 68.058. LIABILITY OF TRUSTEE FOR CONVEYANCE OF TITLE.
(a) A trustee who conveys title to real property for which, at the
time of the conveyance, a RICO lien notice naming a person who, to
the actual knowledge of the trustee, holds a beneficial interest in
the trust has been filed in the county where the real property is
situated is liable to the state for the greatest of:
(1) the amount of proceeds received directly by the
person named in the notice as a result of the conveyance;
(2) the amount of proceeds received by the trustee as a
result of the conveyance and distributed to the person named in the
notice; or
(3) the fair market value of the interest of the person
named in the notice in the real property conveyed.
(b) Notwithstanding Subsection (a)(3), if a trustee conveys
the real property and holds the proceeds that would otherwise be
paid or distributed to the beneficiary or at the direction of the
beneficiary or the beneficiary's designee, the trustee's liability
does not exceed the amount of the proceeds held for so long as the
proceeds are held by the trustee.
(c) An investigative agency may bring a civil action in any
district court against a trustee to recover from the trustee the
amount described by Subsection (a) and is entitled to recover
investigative costs and attorney's fees incurred by the
investigative agency.
Sec. 68.059. EFFECT ON TRUST OF RICO LIEN NOTICE. (a) The
filing of a RICO lien notice does not constitute a lien on the
record title to real property as owned by a trustee except to the
extent that the trustee is named in the notice.
(b) The filing of a RICO lien notice does not affect the use
to which real property or a beneficial interest owned by the person
named in the notice may be put or the right of the person to receive
any avails, rents, or other proceeds resulting from the use and
ownership, but not the sale, of the property until a judgment of
forfeiture is entered.
Sec. 68.060. TRUST EXCEPTIONS. (a) This chapter does not
apply to a conveyance by a trustee under a court order, unless that
court order is entered in an action between the trustee and the
beneficiary.
(b) Unless the trustee has actual knowledge that a person
owning a beneficial interest in the trust is named in a RICO lien
notice or is otherwise a defendant in a civil action brought under
Chapter 140B, Civil Practice and Remedies Code, this subchapter
does not apply to a conveyance by the trustee:
(1) required under the terms of the trust agreement
that is a matter of public record before the filing of the lien
notice; or
(2) to all of the persons who own beneficial interests
in the trust.
Sec. 68.061. RIGHTS OF INNOCENT PERSONS. All forfeitures
or dispositions under this chapter must be made with due provision
for the rights of innocent persons.
Sec. 68.062. EXPIRATION, RENEWAL, AND RELEASE OF RICO LIEN
NOTICE. (a) Unless renewed by the investigative agency, a RICO
lien notice expires on the sixth anniversary of the date it was
filed. If the investigative agency renews the notice, the notice
expires on the sixth anniversary of the date it was renewed. The
investigative agency may renew the notice only once.
(b) The investigative agency filing a RICO lien notice may
wholly or partly release the notice or may release any specific real
property or beneficial interest from the notice on the
investigative agency's own terms. A release of the notice may be
filed in the official records of any county. A charge or fee may not
be imposed for the filing of the release.
Sec. 68.063. EFFECT OF CRIMINAL CASE ON RICO LIEN NOTICE.
If a civil action has not been brought by an investigative agency
seeking a forfeiture of any property owned by the person named in
the RICO lien notice, the acquittal in a criminal proceeding
brought under Chapter 72, Penal Code, of the person named in the
notice or the dismissal of the criminal proceeding terminates the
notice and, in such case, the filing of the notice is void. If the
criminal proceeding has been dismissed or the person named in the
notice has been acquitted in the criminal proceeding, the notice
continues for the duration of a civil action brought under Chapter
140B, Civil Practice and Remedies Code.
Sec. 68.064. TERMINATION OR RELEASE OF RICO LIEN NOTICE BY
COURT. (a) If a civil action brought under Chapter 140B, Civil
Practice and Remedies Code, is not pending against a person named in
a RICO lien notice, the person may bring an action in the county
where the notice has been filed against the investigative agency
that filed the notice seeking a release or extinguishment of the
notice.
(b) In an action brought under this section, the court
shall, on the motion of the person named in the RICO lien notice,
immediately enter an order setting a date for hearing that is not
earlier than the fifth day and not later than the 10th day after the
date the action is filed, and the order and a copy of the complaint
shall be served on the investigative agency not later than the third
day after the date the action is filed.
(c) At the hearing set under Subsection (b), the court shall
take evidence on the issue of whether any real property or
beneficial interest owned by the person named in the RICO lien
notice is covered by the notice or is otherwise subject to
forfeiture under Chapter 140B, Civil Practice and Remedies Code.
(d) If, at the hearing under Subsection (b), the person
named in the RICO lien notice shows by a preponderance of the
evidence that the notice is not applicable to the person or that any
real property or beneficial interest owned by the person is not
subject to forfeiture under Chapter 140B, Civil Practice and
Remedies Code, the court shall enter a judgment terminating the
notice or releasing the real property or beneficial interest from
the notice.
(e) A court shall immediately enter its order releasing from
a RICO lien notice any specific real property or beneficial
interest if a sale of that real property or beneficial interest is
pending and the filing of the notice prevents the sale of the
property or interest. Proceeds resulting from the sale of that real
property or beneficial interest shall be deposited into the
registry of the court, subject to the further order of the court.
(f) At the hearing under Subsection (b), the court may
release any real property or beneficial interest from the RICO lien
notice, on the posting by the person named in the notice of security
that is equal to the value of the real property or beneficial
interest owned by the person.
(g) If a civil action brought under Chapter 140B, Civil
Practice and Remedies Code, is pending against a person named in a
RICO lien notice, the court on motion by the person may grant the
relief described by this section.
SECTION 8. (a) Chapter 140B, Civil Practice and Remedies
Code, as added by this Act, applies only to a cause of action that
accrues on or after the effective date of this Act.
(b) Sections 71.01 and 71.02, Penal Code, as amended by this
Act, apply only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of
this Act is governed by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
SECTION 9. This Act takes effect September 1, 2023.