| 1 | 1 | | 88R10932 AJZ-D |
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| 2 | 2 | | By: Hinojosa S.B. No. 793 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to criminal asset forfeiture proceedings and the seizure |
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| 8 | 8 | | and forfeiture of certain property. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Article 59.02, Code of Criminal Procedure, is |
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| 11 | 11 | | amended by amending Subsection (a) and adding Subsection (a-1) to |
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| 12 | 12 | | read as follows: |
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| 13 | 13 | | (a) Except as otherwise provided by Subsection (a-1), |
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| 14 | 14 | | property [Property] that is contraband is subject to seizure and |
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| 15 | 15 | | forfeiture under this chapter. |
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| 16 | 16 | | (a-1) Property that is contraband is not subject to seizure |
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| 17 | 17 | | and forfeiture under this chapter if: |
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| 18 | 18 | | (1) the property is not otherwise unlawful to possess; |
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| 19 | 19 | | and |
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| 20 | 20 | | (2) the admissibility of the property as evidence |
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| 21 | 21 | | would be prohibited under Article 38.23 in the prosecution of the |
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| 22 | 22 | | underlying offense. |
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| 23 | 23 | | SECTION 2. Article 59.021(d), Code of Criminal Procedure, |
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| 24 | 24 | | is amended to read as follows: |
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| 25 | 25 | | (d) After seizure of the substitute property, the |
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| 26 | 26 | | disposition shall proceed as other cases in this chapter except |
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| 27 | 27 | | that the attorney representing the state must prove by clear and |
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| 28 | 28 | | convincing [a preponderance of the] evidence: |
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| 29 | 29 | | (1) that the contraband described by Subsection (b) |
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| 30 | 30 | | was subject to seizure and forfeiture under this chapter; |
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| 31 | 31 | | (2) the highest fair market value of that contraband |
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| 32 | 32 | | during the period in which the owner of the substitute property |
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| 33 | 33 | | owned, or had an interest in, the contraband; |
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| 34 | 34 | | (3) the fair market value of the substitute property |
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| 35 | 35 | | at the time it was seized; and |
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| 36 | 36 | | (4) that the owner of the substitute property owned or |
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| 37 | 37 | | had an interest in contraband with an aggregate value of $200,000 or |
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| 38 | 38 | | more in connection with the commission of an underlying offense |
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| 39 | 39 | | giving rise to the forfeiture. |
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| 40 | 40 | | SECTION 3. Article 59.05, Code of Criminal Procedure, is |
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| 41 | 41 | | amended by amending Subsection (b) and adding Subsection (b-1) to |
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| 42 | 42 | | read as follows: |
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| 43 | 43 | | (b) All cases under this chapter shall proceed to trial in |
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| 44 | 44 | | the same manner as in other civil cases. The state has the burden of |
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| 45 | 45 | | proving by clear and convincing [a preponderance of the] evidence |
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| 46 | 46 | | that property is subject to forfeiture. |
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| 47 | 47 | | (b-1) In a forfeiture proceeding under this chapter, the |
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| 48 | 48 | | attorney representing the state may only present evidence the |
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| 49 | 49 | | admissibility of which would not be prohibited under Article 38.23 |
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| 50 | 50 | | in the prosecution of the underlying offense giving rise to the |
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| 51 | 51 | | forfeiture. |
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| 52 | 52 | | SECTION 4. Section 12.1106(d), Parks and Wildlife Code, is |
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| 53 | 53 | | amended to read as follows: |
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| 54 | 54 | | (d) The court shall order the seized property: |
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| 55 | 55 | | (1) forfeited to the department if the court |
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| 56 | 56 | | determines by clear and convincing [a preponderance of the] |
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| 57 | 57 | | evidence that: |
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| 58 | 58 | | (A) the seized property is contraband and a |
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| 59 | 59 | | person pleaded guilty or nolo contendere to, was convicted of, or |
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| 60 | 60 | | was placed on deferred adjudication for: |
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| 61 | 61 | | (i) an offense under Section 66.006, |
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| 62 | 62 | | Section 66.2011, or Subchapter G, Chapter 43, of this code; or |
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| 63 | 63 | | (ii) a second or subsequent offense under |
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| 64 | 64 | | Section 61.022, 62.003, 62.004, or 62.005 of this code; or |
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| 65 | 65 | | (B) the seized property is contraband and no |
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| 66 | 66 | | person was arrested for an offense immediately after the warden or |
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| 67 | 67 | | officer seized the property; or |
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| 68 | 68 | | (2) released to the owner if: |
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| 69 | 69 | | (A) the person charged with an offense under |
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| 70 | 70 | | Section 66.006, Section 66.2011, or Subchapter G, Chapter 43, of |
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| 71 | 71 | | this code or a second or subsequent offense under Section 61.022, |
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| 72 | 72 | | 62.003, 62.004, or 62.005 of this code is acquitted or the charge is |
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| 73 | 73 | | dismissed; or |
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| 74 | 74 | | (B) the court determines that the seized property |
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| 75 | 75 | | is not contraband. |
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| 76 | 76 | | SECTION 5. Articles 59.02, 59.021, and 59.05, Code of |
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| 77 | 77 | | Criminal Procedure, and Section 12.1106, Parks and Wildlife Code, |
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| 78 | 78 | | as amended by this Act, apply only to a forfeiture proceeding that |
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| 79 | 79 | | begins on or after the effective date of this Act. A forfeiture |
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| 80 | 80 | | proceeding that begins before the effective date of this Act is |
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| 81 | 81 | | governed by the law in effect on the date the proceeding begins, and |
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| 82 | 82 | | the former law is continued in effect for that purpose. |
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| 83 | 83 | | SECTION 6. This Act takes effect September 1, 2023. |
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