S.B. No. 191
AN ACT
1-1 relating to the disposition of property involved in a criminal
1-2 offense.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Article 18.17, Code of Criminal Procedure, is
1-5 amended to read as follows:
1-6 Art. 18.17. Disposition of Abandoned or Unclaimed Property.
1-7 (a) All unclaimed or abandoned personal property of every kind,
1-8 other than contraband subject to forfeiture under Chapter 59 of
1-9 this code and whiskey, wine and beer, seized by any peace officer
1-10 in the State of Texas which is not held as evidence to be used in
1-11 any pending case and has not been ordered destroyed or returned to
1-12 the person entitled to possession of the same by a magistrate,
1-13 which shall remain unclaimed for a period of 30 days shall be
1-14 delivered for disposition <sale> to a person designated by the
1-15 municipality or the purchasing agent of the <municipality or>
1-16 county in which the property was seized. If a peace officer of a
1-17 municipality seizes the property, the peace officer shall deliver
1-18 the property to a person designated by <the purchasing agent of>
1-19 the municipality. If any other peace officer seizes the property,
1-20 the peace officer shall deliver the property to the purchasing
1-21 agent of the county. If the county has no purchasing agent, then
1-22 such property shall be disposed of <sold> by the sheriff of the
1-23 county.
2-1 (b) The <municipal or> county purchasing agent, the person
2-2 designated by the municipality, or the sheriff of the county, as
2-3 the case may be, shall mail a notice to the last known address of
2-4 the owner of such property by certified mail. Such notice shall
2-5 describe the property being held, give the name and address of the
2-6 officer holding such property, and shall state that if the owner
2-7 does not claim such property within 90 days <six months> from the
2-8 date of the notice such property will be disposed of <sold> and the
2-9 proceeds <of such sale>, after deducting the reasonable expense of
2-10 keeping such property and the costs of the disposition <sale>,
2-11 placed in the treasury of the municipality or county giving the
2-12 notice.
2-13 (c) If the owner of such property is unknown or if the
2-14 address of the owner is unknown, then the person designated by the
2-15 municipality, the <municipal or> county purchasing agent, or the
2-16 sheriff, as the case may be, shall cause to be published once in a
2-17 paper of general circulation in the municipality or county a notice
2-18 containing a general description of the property held, the name of
2-19 the owner if known, the name and address of the officer holding
2-20 such property, and a statement that if the owner does not claim
2-21 such property within 90 days <six months> from the date of the
2-22 publication such property will be disposed of <sold> and the
2-23 proceeds <of such sale>, after deducting the reasonable expense of
2-24 keeping such property and the costs of the disposition <sale>,
2-25 placed in the treasury of the municipality or county disposing of
3-1 <selling> the property.
3-2 (d) The sale of any property hereunder shall be preceded by
3-3 a notice published once at least 14 days <three weeks> prior to the
3-4 date of such sale in a newspaper of general circulation in the
3-5 municipality or county where the sale is to take place, stating the
3-6 general description of the property, the names of the owner if
3-7 known, and the date and place that such sale will occur. If the
3-8 person designated by the municipality, <municipal or> county
3-9 purchasing agent, or sheriff, as the case may be, shall consider
3-10 any bid as insufficient, he need not sell such property but may
3-11 decline such bid and reoffer such property for sale. This article
3-12 does not require disposition by sale.
3-13 (e) The real owner of any property disposed of <sold> shall
3-14 have the right to file a claim to the proceeds <of such sale> with
3-15 the commissioners court of the county or with the governing body of
3-16 the municipality in which the disposition <sale> took place. A
3-17 claim by the real owner must be filed not later than the 30th day
3-18 after the date of disposition. If the claim is allowed by the
3-19 commissioners court or the governing body of the municipality, the
3-20 municipal or county treasurer shall pay the owner such funds as
3-21 were paid into the treasury of the municipality or county as
3-22 proceeds of the disposition <sale>. If the claim is denied by the
3-23 commissioners court or the governing body or if said court or body
3-24 fails to act upon such claim within 90 days, the claimant may sue
3-25 the municipal or county treasurer in a court of competent
4-1 jurisdiction in the county, and upon sufficient proof of ownership,
4-2 recover judgment against such municipality or county for the
4-3 recovery of the proceeds of the disposition <sale>.
4-4 (f) For the purposes of this article:
4-5 (1) "Person designated by a municipality" means an
4-6 officer or employee of a municipality who is designated by the
4-7 municipality to be primarily responsible for the disposition of
4-8 property under this article.
4-9 (2) "Property held as evidence" means property
4-10 related to a charge that has been filed or to a matter that is
4-11 being investigated for the filing of a charge<, "purchasing agent
4-12 of the municipality" means the person who is primarily responsible
4-13 for making purchases on behalf of a municipality>.
4-14 (g) If the provisions of this section have been met and the
4-15 property is scheduled for disposition <sale>, the municipal or
4-16 county law enforcement agency that originally seized the property
4-17 may request and have the property converted to agency use. The
4-18 agency at any time may transfer the property to another municipal
4-19 or county law enforcement agency for the use of that agency. The
4-20 agency last using the property shall return the property to the
4-21 person designated by the municipality, county purchasing agent, or
4-22 sheriff, as the case may be, for disposition <sale> when the agency
4-23 has completed the intended use of the property.
4-24 (h) If the abandoned or unclaimed personal property is
4-25 money, the person designated by the municipality or county
5-1 purchasing agent, or the sheriff of the county, as appropriate,
5-2 may, after giving notice under Subsection (b) or (c) of this
5-3 article, deposit the money in the treasury of the municipality or
5-4 county giving notice without conducting the sale as required by
5-5 Subsection (d) of this article.
5-6 SECTION 2. Subsections (a) and (b), Article 18.18, Code of
5-7 Criminal Procedure, are amended to read as follows:
5-8 (a) Following the final conviction of a person for
5-9 possession of a gambling device or equipment, altered gambling
5-10 equipment, or gambling paraphernalia, for an offense involving a
5-11 criminal instrument, for an offense involving an obscene device or
5-12 material, the court entering the judgment of conviction shall order
5-13 that the machine, device, gambling equipment or gambling
5-14 paraphernalia, instrument, obscene device or material be destroyed
5-15 or forfeited to the state. Not later than the 30th day after
5-16 <Following> the final conviction of a person for an offense
5-17 involving a prohibited weapon, the court entering the judgment of
5-18 conviction on its own motion, on the motion of the prosecuting
5-19 attorney in the case, or on the motion of the law enforcement
5-20 agency initiating the complaint on notice to the prosecuting
5-21 attorney in the case if the prosecutor fails to move for the order
5-22 shall order that the prohibited weapon be destroyed or forfeited to
5-23 the <state or to a political subdivision of the state for use by>
5-24 law enforcement agency that initiated the complaint. If the court
5-25 fails to enter the order within the time required by this
6-1 subsection, any magistrate in the county in which the offense
6-2 occurred may enter the order <agencies>. Following the final
6-3 conviction of a person for an offense involving dog fighting, the
6-4 court entering the judgment of conviction shall order that any
6-5 dog-fighting equipment be destroyed or forfeited to the state.
6-6 Destruction of dogs, if necessary, must be carried out by a
6-7 veterinarian licensed in this state or, if one is not available, by
6-8 trained personnel of a humane society or an animal shelter. If
6-9 forfeited, the court shall order the contraband delivered to the
6-10 state, any political subdivision of the state, or to any state
6-11 institution or agency. If gambling proceeds were seized, the court
6-12 shall order them forfeited to the state and shall transmit them to
6-13 the grand jury of the county in which they were seized for use in
6-14 investigating alleged violations of the Penal Code, or to the
6-15 state, any political subdivision of the state, or to any state
6-16 institution or agency.
6-17 (b) If there is no prosecution or conviction following
6-18 seizure, the magistrate to whom the return was made shall notify in
6-19 writing the person found in possession of the alleged gambling
6-20 device or equipment, altered gambling equipment or gambling
6-21 paraphernalia, gambling proceeds, prohibited weapon, obscene device
6-22 or material, criminal instrument, or dog-fighting equipment to show
6-23 cause why the property seized should not be destroyed or the
6-24 proceeds forfeited. The magistrate, on the motion of the law
6-25 enforcement agency seizing a prohibited weapon, shall order the
7-1 weapon destroyed or forfeited to the law enforcement agency seizing
7-2 the weapon, unless a person shows cause as to why the prohibited
7-3 weapon should not be destroyed or forfeited. A law enforcement
7-4 agency shall make a motion under this section in a timely manner
7-5 after the time at which the agency is informed in writing by the
7-6 attorney representing the state that no prosecution will arise from
7-7 the seizure.
7-8 SECTION 3. Subsection (d), Article 18.19, Code of Criminal
7-9 Procedure, is amended to read as follows:
7-10 (d) A person either convicted or receiving deferred
7-11 adjudication under Penal Code Chapter 46 is entitled to the weapon
7-12 seized upon request to the law enforcement agency holding the
7-13 weapon. However, the court entering the judgment of conviction
7-14 shall order the weapon destroyed or forfeited to the state for use
7-15 by the law enforcement agency holding the weapon if:
7-16 (1) the person does not request the weapon within 60
7-17 days after the date of the judgment of conviction;
7-18 (2) the person has been previously convicted under
7-19 Penal Code Chapter 46; <or>
7-20 (3) the weapon is one defined as a prohibited weapon
7-21 under Penal Code Chapter 46; or
7-22 (4) the court determines based on the prior criminal
7-23 history of the defendant or based on the circumstances surrounding
7-24 the commission of the offense that possession of the seized weapon
7-25 would pose a threat to the community or one or more individuals.
8-1 SECTION 4. This Act takes effect September 1, 1993, and
8-2 applies to all property involved in a criminal offense that is in
8-3 the possession of a law enforcement agency on or after that date.
8-4 SECTION 5. The importance of this legislation and the
8-5 crowded condition of the calendars in both houses create an
8-6 emergency and an imperative public necessity that the
8-7 constitutional rule requiring bills to be read on three several
8-8 days in each house be suspended, and this rule is hereby suspended.