By: Brown S.B. No. 191
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the disposition of abandoned or unclaimed property,
1-2 gambling paraphernalia, prohibited weapon, criminal instrument, and
1-3 other contraband.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 18.17, Code of Criminal Procedure, is
1-6 amended to read as follows:
1-7 Art. 18.17. (332a) DISPOSITION OF ABANDONED OR UNCLAIMED
1-8 PROPERTY. (a) All unclaimed or abandoned personal property of
1-9 every kind, other than contraband subject to forfeiture under
1-10 Chapter 59 of this code and whiskey, wine and beer, seized by any
1-11 peace officer in the State of Texas which is not held as evidence
1-12 to be used in any pending case and has not been ordered destroyed
1-13 or returned to the person entitled to possession of the same by a
1-14 magistrate, which shall remain unclaimed for a period of 30 days
1-15 shall be delivered for disposition <sale> to a person designated by
1-16 the municipality or to the purchasing agent of the <municipality
1-17 or> county in which the property was seized. If a peace officer of
1-18 a municipality seizes the property, the peace officer shall deliver
1-19 the property to a person designated by the municipality <the
1-20 purchasing agent of the municipality>. If any other peace officer
1-21 seizes the property, the peace officer shall deliver the property
1-22 to the purchasing agent of the county. If the county has no
1-23 purchasing agent, then such property shall be disposed of <sold> by
2-1 the sheriff of the county.
2-2 (b) The person designated by the municipality, the
2-3 <municipal or> county purchasing agent or the sheriff of the
2-4 county, as the case may be, shall mail a notice to the last known
2-5 address of the owner of such property by certified mail. Such
2-6 notice shall describe the property being held, give the name and
2-7 address of the officer holding such property, and shall state that
2-8 if the owner does not claim such property within thirty days <six
2-9 months> from the date of the notice such property will be disposed
2-10 of <sold> and the proceeds of such disposition, if any, <sale>
2-11 after deducting the reasonable expense of keeping such property and
2-12 the costs of the disposition <sale>, placed in the treasury of the
2-13 municipality or county giving the notice.
2-14 (c) If the owner of such property is unknown or if the
2-15 address of the owner is unknown, then the person designated by the
2-16 city, the <municipal or> county purchasing agent or the sheriff, as
2-17 the case may be, shall cause to be published once in a paper of
2-18 general circulation in the municipality or county a notice
2-19 containing a general description of the property held, the name of
2-20 the owner if known, the name and address of the officer holding
2-21 such property, and a statement that if the owner does not claim
2-22 such property within thirty days <six months> from the date of the
2-23 publication such property will be disposed of <sold> and the
2-24 proceeds of such disposition, if any <sale>, after deducting the
2-25 reasonable expense of keeping such property and the costs of the
3-1 disposition <sale>, placed in the treasury of the municipality or
3-2 county disposing of <selling> the property.
3-3 (d) The sale of any property hereunder shall be preceded by
3-4 a notice published once at least fourteen days <three weeks> prior
3-5 to the date of such sale in a newspaper of general circulation in
3-6 the municipality or county where the sale is to take place, stating
3-7 the general description of the property, the names of the owner if
3-8 known, and the date and place that such sale will occur. If the
3-9 person designated by the municipality, the <municipal or> county
3-10 purchasing agent or sheriff, as the case may be, shall consider any
3-11 bid as insufficient, he need not sell such property but may decline
3-12 such bid and reoffer such property for sale. Nothing in this
3-13 article shall be construed to require disposition by sale.
3-14 (e) The real owner of any property disposed of <sold> shall
3-15 have the right to file a claim to the proceeds of such disposition,
3-16 if any, <sale> with the commissioners court of the county or with
3-17 the governing body of the municipality in which the disposition
3-18 <sale> took place. A claim by the real owner of any property that
3-19 has been disposed of must be filed within thirty days after the
3-20 date of the disposition. If the claim is allowed by the
3-21 commissioners court or the governing body of the municipality, the
3-22 municipal or county treasurer shall pay the owner such funds as
3-23 were paid into the treasury of the municipality or county as
3-24 proceeds of the disposition <sale>. If the claim is denied by the
3-25 commissioners court or the governing body or if said court or body
4-1 fails to act upon such claim within 90 days, the claimant may sue
4-2 the municipal or county treasurer in a court of competent
4-3 jurisdiction in the county, and upon sufficient proof of ownership,
4-4 recover judgment against such municipality or county for the
4-5 recovery of the proceeds of the disposition <sale>.
4-6 <(f) For the purposes of this article, "purchasing agent of
4-7 the municipality" means the person who is primarily responsible for
4-8 making purchases on behalf of a municipality.>
4-9 (f) <(g)> If the provisions of this section have been met
4-10 and the property is scheduled for disposition <sale>, the municipal
4-11 or county law enforcement agency that originally seized the
4-12 property may request and have the property converted to agency use.
4-13 The agency at any time may transfer the property to another
4-14 municipal or county law enforcement agency for the use of that
4-15 agency. The agency last using the property shall return the
4-16 property to the person designated by the municipality, purchasing
4-17 agent or sheriff for disposition <sale> when the agency has
4-18 completed the intended use of the property.
4-19 (g) For the purposes of this article, "property held as
4-20 evidence" means any property related to a charge which has been
4-21 filed or to a matter which is being investigated for the purpose of
4-22 filing a charge.
4-23 SECTION 2. Article 18.18, Subsection (a), Code of Criminal
4-24 Procedure, is amended to read as follows:
4-25 (a) Following the final conviction of a person for
5-1 possession of a gambling device or equipment, altered gambling
5-2 equipment, or gambling paraphernalia, for an offense involving a
5-3 criminal instrument, for an offense involving an obscene device or
5-4 material, the court entering the judgment of conviction shall order
5-5 that the machine, device, gambling equipment or gambling
5-6 paraphernalia, instrument, obscene device or material be destroyed
5-7 or forfeited to the state. Following the final conviction of a
5-8 person for an offense involving a prohibited weapon, the court
5-9 entering the judgment of conviction shall order that the prohibited
5-10 weapon be destroyed or forfeited to the law enforcement agency
5-11 which initiated the complaint. It is the responsibility of the
5-12 prosecuting attorney to present the motion for the destruction of
5-13 or forfeiture of the prohibited weapon to the appropriate law
5-14 enforcement agency. If the prosecuting attorney fails to present
5-15 such a motion, the law enforcement agency initiating the complaint
5-16 may present such a motion to the court. Upon such a motion by the
5-17 prosecuting attorney or by the appropriate law enforcement agency,
5-18 or upon the court's own motion, the court shall consider the
5-19 matter, and an order concerning the disposition of the prohibited
5-20 weapon will be signed within 30 days from the date of the judgment.
5-21 If the court fails to enter such an order, any magistrate may enter
5-22 an order concerning the disposition of the prohibited weapon <state
5-23 or to a political subdivision of the state for use by law
5-24 enforcement agencies>. Following the final conviction of a person
5-25 for an offense involving dog fighting, the court entering the
6-1 judgment of conviction shall order that any dog-fighting equipment
6-2 be destroyed or forfeited to the state. Destruction of dogs, if
6-3 necessary, must be carried out by a veterinarian licensed in this
6-4 state or, if one is not available, by trained personnel of a humane
6-5 society or an animal shelter. If forfeited, the court shall order
6-6 the contraband delivered to the state, any political subdivision of
6-7 the state, or to any state institution or agency. If gambling
6-8 proceeds were seized, the court shall order them forfeited to the
6-9 state and shall transmit them to the grand jury of the county in
6-10 which they were seized for use in investigating alleged violations
6-11 of the Penal Code, or to the state, any political subdivision of
6-12 the state, or to any state institution or agency.
6-13 SECTION 3. Article 18.18, Subsection (b), Code of Criminal
6-14 Procedure, is amended to read as follows:
6-15 (b) If there is no prosecution or conviction following
6-16 seizure, the magistrate to whom the return was made shall notify in
6-17 writing the person found in possession of the alleged gambling
6-18 device or equipment, altered gambling equipment or gambling
6-19 paraphernalia, gambling proceeds, prohibited weapon, obscene device
6-20 or material, criminal instrument, or dog-fighting equipment to show
6-21 cause why the property seized should not be destroyed or the
6-22 proceeds forfeited. If there is no prosecution or conviction
6-23 following seizure of a prohibited weapon, any magistrate shall hear
6-24 a motion brought by the law enforcement agency seizing the weapon,
6-25 requesting that the weapon be destroyed or forfeited to the law
7-1 enforcement agency seizing the prohibited weapon. The motion
7-2 brought by the law enforcement agency seizing the prohibited weapon
7-3 shall be timely made upon receipt of notification to the law
7-4 enforcement agency that no prosecution will be forthcoming.
7-5 SECTION 4. Article 18.18, Subsection (g)(5), Code of
7-6 Criminal Procedure, is amended to read as follows:
7-7 (5) "use for law enforcement purposes" includes the
7-8 sale or trade of forfeited, prohibited weapons, if the sale or
7-9 trade is made to a licensed gun dealer. The law enforcement agency
7-10 shall record identifying numbers and markings of such weapons, and
7-11 shall retain such records indefinitely.
7-12 SECTION 5. The importance of this legislation and the
7-13 crowded condition of the calendars in both houses create an
7-14 emergency and an imperative public necessity that the
7-15 constitutional rule requiring bills to be read on three several
7-16 days in each house be suspended, and this rule is hereby suspended.