By Eckels H.B. No. 463
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the disposition of abandoned or unclaimed property,
1-3 gambling paraphernalia, prohibited weapon, criminal instrument, and
1-4 other contraband.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 18.17, Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 Art. 18.17. (332a) DISPOSITION OF ABANDONED OR UNCLAIMED
1-9 PROPERTY. (a) All unclaimed or abandoned personal property of
1-10 every kind, other than contraband subject to forfeiture under
1-11 Chapter 59 of this code and whiskey, wine and beer, seized by any
1-12 peace officer in the State of Texas which is not held as evidence
1-13 to be used in any pending case and has not been ordered destroyed
1-14 or returned to the person entitled to possession of the same by a
1-15 magistrate, which shall remain unclaimed for a period of 30 days
1-16 shall be delivered for disposition <sale> to a person designated by
1-17 the municipality or to the purchasing agent of the <municipality
1-18 or> county in which the property was seized. If a peace officer of
1-19 a municipality seizes the property, the peace officer shall deliver
1-20 the property to a person designated by the municipality <the
1-21 purchasing agent of the municipality>. If any other peace officer
1-22 seizes the property, the peace officer shall deliver the property
1-23 to the purchasing agent of the county. If the county has no
2-1 purchasing agent, then such property shall be disposed of <sold> by
2-2 the sheriff of the county.
2-3 (b) The person designated by the municipality, the
2-4 <municipal or> county purchasing agent or the sheriff of the
2-5 county, as the case may be, shall mail a notice to the last known
2-6 address of the owner of such property by certified mail. Such
2-7 notice shall describe the property being held, give the name and
2-8 address of the officer holding such property, and shall state that
2-9 if the owner does not claim such property within thirty days <six
2-10 months> from the date of the notice such property will be disposed
2-11 of <sold> and the proceeds of such disposition, if any, <sale>
2-12 after deducting the reasonable expense of keeping such property and
2-13 the costs of the disposition <sale>, placed in the treasury of the
2-14 municipality or county giving the notice.
2-15 (c) If the owner of such property is unknown or if the
2-16 address of the owner is unknown, then the person designated by the
2-17 city, the <municipal or> county purchasing agent or the sheriff, as
2-18 the case may be, shall cause to be published once in a paper of
2-19 general circulation in the municipality or county a notice
2-20 containing a general description of the property held, the name of
2-21 the owner if known, the name and address of the officer holding
2-22 such property, and a statement that if the owner does not claim
2-23 such property within thirty days <six months> from the date of the
2-24 publication such property will be disposed of <sold> and the
2-25 proceeds of such disposition, if any <sale>, after deducting the
3-1 reasonable expense of keeping such property and the costs of the
3-2 disposition <sale>, placed in the treasury of the municipality or
3-3 county disposing of <selling> the property.
3-4 (d) The sale of any property hereunder shall be preceded by
3-5 a notice published once at least fourteen days <three weeks> prior
3-6 to the date of such sale in a newspaper of general circulation in
3-7 the municipality or county where the sale is to take place, stating
3-8 the general description of the property, the names of the owner if
3-9 known, and the date and place that such sale will occur. If the
3-10 person designated by the municipality, the <municipal or> county
3-11 purchasing agent or sheriff, as the case may be, shall consider any
3-12 bid as insufficient, he need not sell such property but may decline
3-13 such bid and reoffer such property for sale. Nothing in this
3-14 article shall be construed to require disposition by sale.
3-15 (e) The real owner of any property disposed of <sold> shall
3-16 have the right to file a claim to the proceeds of such disposition,
3-17 if any, <sale> with the commissioners court of the county or with
3-18 the governing body of the municipality in which the disposition
3-19 <sale> took place. A claim by the real owner of any property that
3-20 has been disposed of must be filed within thirty days after the
3-21 date of the disposition. If the claim is allowed by the
3-22 commissioners court or the governing body of the municipality, the
3-23 municipal or county treasurer shall pay the owner such funds as
3-24 were paid into the treasury of the municipality or county as
3-25 proceeds of the disposition <sale>. If the claim is denied by the
4-1 commissioners court or the governing body or if said court or body
4-2 fails to act upon such claim within 90 days, the claimant may sue
4-3 the municipal or county treasurer in a court of competent
4-4 jurisdiction in the county, and upon sufficient proof of ownership,
4-5 recover judgment against such municipality or county for the
4-6 recovery of the proceeds of the disposition <sale>.
4-7 <(f) For the purposes of this article, "purchasing agent of
4-8 the municipality" means the person who is primarily responsible for
4-9 making purchases on behalf of a municipality.>
4-10 (f) <(g)> If the provisions of this section have been met
4-11 and the property is scheduled for disposition <sale>, the municipal
4-12 or county law enforcement agency that originally seized the
4-13 property may request and have the property converted to agency use.
4-14 The agency at any time may transfer the property to another
4-15 municipal or county law enforcement agency for the use of that
4-16 agency. The agency last using the property shall return the
4-17 property to the person designated by the municipality, purchasing
4-18 agent or sheriff for disposition <sale> when the agency has
4-19 completed the intended use of the property.
4-20 (g) For the purposes of this article, "property held as
4-21 evidence" means any property related to a charge which has been
4-22 filed or to a matter which is being investigated for the purpose of
4-23 filing a charge.
4-24 SECTION 2. Article 18.18, Subsection (a), Code of Criminal
4-25 Procedure, is amended to read as follows:
5-1 (a) Following the final conviction of a person for
5-2 possession of a gambling device or equipment, altered gambling
5-3 equipment, or gambling paraphernalia, for an offense involving a
5-4 criminal instrument, for an offense involving an obscene device or
5-5 material, the court entering the judgment of conviction shall order
5-6 that the machine, device, gambling equipment or gambling
5-7 paraphernalia, instrument, obscene device or material be destroyed
5-8 or forfeited to the state. Following the final conviction of a
5-9 person for an offense involving a prohibited weapon, the court
5-10 entering the judgment of conviction shall order that the prohibited
5-11 weapon be destroyed or forfeited to the law enforcement agency
5-12 which initiated the complaint. It is the responsibility of the
5-13 prosecuting attorney to present the motion for the destruction of
5-14 or forfeiture of the prohibited weapon to the appropriate law
5-15 enforcement agency. If the prosecuting attorney fails to present
5-16 such a motion, the law enforcement agency initiating the complaint
5-17 may present such a motion to the court. Upon such a motion by the
5-18 prosecuting attorney or by the appropriate law enforcement agency,
5-19 or upon the court's own motion, the court shall consider the
5-20 matter, and an order concerning the disposition of the prohibited
5-21 weapon will be signed within 30 days from the date of the judgment.
5-22 If the court fails to enter such an order, any magistrate may enter
5-23 an order concerning the disposition of the prohibited weapon <state
5-24 or to a political subdivision of the state for use by law
5-25 enforcement agencies>. Following the final conviction of a person
6-1 for an offense involving dog fighting, the court entering the
6-2 judgment of conviction shall order that any dog-fighting equipment
6-3 be destroyed or forfeited to the state. Destruction of dogs, if
6-4 necessary, must be carried out by a veterinarian licensed in this
6-5 state or, if one is not available, by trained personnel of a humane
6-6 society or an animal shelter. If forfeited, the court shall order
6-7 the contraband delivered to the state, any political subdivision of
6-8 the state, or to any state institution or agency. If gambling
6-9 proceeds were seized, the court shall order them forfeited to the
6-10 state and shall transmit them to the grand jury of the county in
6-11 which they were seized for use in investigating alleged violations
6-12 of the Penal Code, or to the state, any political subdivision of
6-13 the state, or to any state institution or agency.
6-14 SECTION 3. Article 18.18, Subsection (b), Code of Criminal
6-15 Procedure, is amended to read as follows:
6-16 (b) If there is no prosecution or conviction following
6-17 seizure, the magistrate to whom the return was made shall notify in
6-18 writing the person found in possession of the alleged gambling
6-19 device or equipment, altered gambling equipment or gambling
6-20 paraphernalia, gambling proceeds, prohibited weapon, obscene device
6-21 or material, criminal instrument, or dog-fighting equipment to show
6-22 cause why the property seized should not be destroyed or the
6-23 proceeds forfeited. If there is no prosecution or conviction
6-24 following seizure of a prohibited weapon, any magistrate shall hear
6-25 a motion brought by the law enforcement agency seizing the weapon,
7-1 requesting that the weapon be destroyed or forfeited to the law
7-2 enforcement agency seizing the prohibited weapon. The motion
7-3 brought by the law enforcement agency seizing the prohibited weapon
7-4 shall be timely made upon receipt of notification to the law
7-5 enforcement agency that no prosecution will be forthcoming.
7-6 SECTION 4. Article 18.18, Subsection (g)(5), Code of
7-7 Criminal Procedure, is amended to read as follows:
7-8 (5) "use for law enforcement purposes" includes the
7-9 sale or trade of forfeited, prohibited weapons, if the sale or
7-10 trade is made to a licensed gun dealer. The law enforcement agency
7-11 shall record identifying numbers and markings of such weapons, and
7-12 shall retain such records indefinitely.
7-13 SECTION 5. The importance of this legislation and the
7-14 crowded condition of the calendars in both houses create an
7-15 emergency and an imperative public necessity that the
7-16 constitutional rule requiring bills to be read on three several
7-17 days in each house be suspended, and this rule is hereby suspended.
7-18 COMMITTEE AMENDMENT NO. 1
7-19 Amend H.B. 463 as follows:
7-20 (1) On page 2, line 24 strike the word "thirty" and
7-21 substitute "ninety".
7-22 (2) On page 3, line 22 strike the word "thirty" and
7-23 substitute "ninety".
7-24 Greenberg