By: Bivins S.B. No. 1270
73R5925 MI-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the seizure, forfeiture, and disposition of contraband
1-3 used in the commission of certain offenses under the Parks and
1-4 Wildlife Code; providing immunity for certain department employees.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 12, Parks and Wildlife Code, is amended
1-7 by adding Subchapter H to read as follows:
1-8 SUBCHAPTER H. FORFEITURE OF CONTRABAND
1-9 Sec. 12.701. DEFINITIONS. In this subchapter:
1-10 (1) "Aircraft" means any device used or capable of use
1-11 for flight in the air, including airplanes, helicopters, and
1-12 ultralight airplanes.
1-13 (2) "Attorney representing the state" means the
1-14 prosecutor with felony jurisdiction in the county in which a
1-15 forfeiture proceeding is held under this subchapter.
1-16 (3) "Contraband" means:
1-17 (A) aircraft, vehicles, firearms, or other
1-18 devices used in the commission of a violation of Subchapter G,
1-19 Chapter 43, of this code or a regulation issued under that
1-20 subchapter; or
1-21 (B) a vessel that is not documented by the U.S.
1-22 Coast Guard or registered under an approved numbering system in
1-23 accord with the Federal Boating Act of 1958 and subsequent federal
1-24 legislation and that is used in the commission of a violation of
2-1 Section 66.006 of this code or a regulation issued under that
2-2 section.
2-3 (4) "Interest holder" means the bona fide holder of a
2-4 perfected lien or a perfected security interest in property.
2-5 (5) "Law enforcement agency" means an agency of the
2-6 state or an agency of a political subdivision of the state
2-7 authorized by law to employ peace officers.
2-8 (6) "Owner" means a person who claims an equitable or
2-9 legal ownership interest in property.
2-10 (7) "Seizure" means the restraint of property by a
2-11 game warden under Section 12.703 of this code, whether the game
2-12 warden restrains the property by physical force or by a display of
2-13 the game warden's authority.
2-14 (8) "Vessel" means any watercraft used or capable of
2-15 being used for transportation on water and includes motors attached
2-16 to the vessel.
2-17 Sec. 12.702. FORFEITURE OF CONTRABAND. (a) Property that
2-18 is contraband is subject to seizure and forfeiture under this
2-19 subchapter.
2-20 (b) Any property that is contraband, other than property
2-21 held as evidence in a criminal investigation or a pending criminal
2-22 case, that is seized under this subchapter may be replevied by the
2-23 owner or interest holder of the property on execution of a cash
2-24 bond in a sum equal to the appraised value of the property
2-25 replevied. In lieu of cash, the bond must be a good and valid bond
2-26 with sufficient surety in a sum equal to the appraised value of the
2-27 property replevied, executed by an insurance company that holds a
3-1 certificate of authority to transact the business of insurance in
3-2 this state. The bond may be approved as to form and substance by
3-3 the court after the court gives notice of the bond to the authority
3-4 holding the seized property. The bond must be conditioned:
3-5 (1) on return of the property to the custody of the
3-6 state on the day of hearing of the forfeiture proceedings; and
3-7 (2) that the interest holder or owner of the property
3-8 will abide by the decision that may be made in the cause.
3-9 (c) An owner's or interest holder's interest in property may
3-10 not be forfeited under this subchapter if the owner or interest
3-11 holder:
3-12 (1) acquired and perfected the interest before or
3-13 during the act or omission giving rise to forfeiture; and
3-14 (2) did not know or should not reasonably have known
3-15 of the act or omission giving rise to the forfeiture or that it was
3-16 likely to occur at or before the time of acquiring and perfecting
3-17 the interest.
3-18 (d) On motion by any party or on the motion of the court,
3-19 after notice in the manner provided by Section 12.704 of this code
3-20 to all known owners and interest holders of property subject to
3-21 forfeiture under this subchapter, and after a hearing on the
3-22 matter, the court may make appropriate orders to preserve and
3-23 maintain the value of the property until a final disposition of the
3-24 property is made under this subchapter, including the sale of the
3-25 property if that is the only method by which the value of the
3-26 property may be preserved until final disposition.
3-27 Sec. 12.703. SEIZURE OF CONTRABAND. (a) Property subject
4-1 to forfeiture under this subchapter may be seized by a game warden
4-2 under authority of a search warrant.
4-3 (b) Seizure of property subject to forfeiture may be made
4-4 without warrant if:
4-5 (1) the owner, operator, or agent in charge of the
4-6 property knowingly consents;
4-7 (2) the seizure is incident to a search to which the
4-8 owner, operator, or agent in charge of the property knowingly
4-9 consents;
4-10 (3) the property subject to seizure has been the
4-11 subject of a prior judgment in favor of the state in a forfeiture
4-12 proceeding under this subchapter; or
4-13 (4) the seizure was incident to a lawful arrest,
4-14 lawful search, or lawful search incident to arrest.
4-15 (c) A game warden who seizes property under this subchapter
4-16 has custody of the property, subject only to replevy under Section
4-17 12.702 of this code or an order of a court. A game warden who has
4-18 custody of property shall provide the attorney representing the
4-19 state with a sworn statement that contains a schedule of the
4-20 property seized, an acknowledgment that the officer has seized the
4-21 property, and a list of the officer's reasons for the seizure. Not
4-22 later than 72 hours after the seizure, the game warden shall:
4-23 (1) place the property under seal;
4-24 (2) remove the property to a place ordered by the
4-25 court; or
4-26 (3) remove the property to a place for safekeeping.
4-27 Sec. 12.704. NOTIFICATION OF FORFEITURE PROCEEDING. (a) If
5-1 a game warden seizes property under this subchapter, the attorney
5-2 representing the state shall commence proceedings under this
5-3 section not later than the 30th day after the date of the seizure.
5-4 (b) A forfeiture proceeding commences under this subchapter
5-5 when the attorney representing the state files a notice of the
5-6 seizure and intended forfeiture in the name of the state with the
5-7 clerk of the district court in the county in which the seizure is
5-8 made. The attorney representing the state must attach to the
5-9 notice the game warden's sworn statement under Section 12.703 of
5-10 this code. The attorney representing the state shall cause
5-11 certified copies of the notice to be served on the following
5-12 persons in the same manner as provided for the service of process
5-13 by citation in civil cases:
5-14 (1) the owner of the property; and
5-15 (2) any interest holder in the property.
5-16 (c) If the property is a motor vehicle, and if there is
5-17 reasonable cause to believe that the vehicle has been registered
5-18 under the laws of this state, the attorney representing the state
5-19 shall ask the Texas Transportation Department to identify from its
5-20 records the record owner of the vehicle and any interest holder.
5-21 (d) If the property is a motor vehicle and is not registered
5-22 in this state, the attorney representing the state shall attempt to
5-23 ascertain the name and address of the person in whose name the
5-24 vehicle is licensed in another state. If the vehicle is licensed
5-25 in a state that has a certificate of title law, the attorney
5-26 representing the state shall request the appropriate agency of that
5-27 state to identify the record owner of the vehicle and any interest
6-1 holder.
6-2 (e) If a financing statement is required by law to be filed
6-3 to perfect a security interest affecting the property, and if there
6-4 is reasonable cause to believe that a financing statement has been
6-5 filed, the attorney representing the state who commences the
6-6 proceedings shall ask the appropriate official designated by
6-7 Chapter 9, Business & Commerce Code, to identify the record owner
6-8 of the property and the person who is an interest holder.
6-9 (f) If the property is an aircraft or a part of an aircraft,
6-10 and if there is reasonable cause to believe that a perfected
6-11 security instrument affects the property, the attorney representing
6-12 the state shall request an administrator of the Federal Aviation
6-13 Administration to identify from the records of that agency the
6-14 record owner of the property and the holder of the perfected
6-15 security instrument.
6-16 (g) For all other property subject to forfeiture, if there
6-17 is reasonable cause to believe that a perfected security instrument
6-18 affects the property, the attorney representing the state shall
6-19 make a good faith inquiry to identify the holder of the perfected
6-20 security instrument.
6-21 (h) The attorney representing the state who commences the
6-22 proceedings shall cause the owner and any interest holder to be
6-23 named as a party and to be served with citation as provided by the
6-24 Texas Rules of Civil Procedure.
6-25 (i) If the owner of the property is unknown, the attorney
6-26 representing the state shall file with the clerk of the court in
6-27 which the proceedings are pending an affidavit stating that the
7-1 owner of the property is unknown. The clerk of the court shall
7-2 issue a citation for service by publication addressed to "The
7-3 Unknown Owner of _____________," filling in the blank space with a
7-4 reasonably detailed description of the property subject to
7-5 forfeiture. The citation must contain the other requisites
7-6 prescribed by and be served as provided by Rules 114 and 116, Texas
7-7 Rules of Civil Procedure.
7-8 Sec. 12.705. FORFEITURE HEARING. (a) All parties must
7-9 comply with the rules of pleading as required in civil suits.
7-10 (b) All cases under this subchapter shall proceed to trial
7-11 in the same manner as in other civil cases. The state has the
7-12 burden of proving by a preponderance of the evidence that property
7-13 is subject to forfeiture.
7-14 (c) A final conviction for an underlying offense is not a
7-15 requirement for forfeiture under this subchapter. An owner or
7-16 interest holder may present evidence of a dismissal or acquittal of
7-17 an underlying offense in a forfeiture proceeding, and evidence of
7-18 an acquittal raises a presumption that the property or interest
7-19 that is the subject of the hearing is nonforfeitable. This
7-20 presumption can be rebutted by evidence that the owner or interest
7-21 holder knew or should have known that the property was contraband.
7-22 (d) If the court finds that all or any part of the property
7-23 is subject to forfeiture, the judge shall forfeit the property to
7-24 the state, with the attorney representing the state as the agent
7-25 for the state, except that if the court finds that the
7-26 nonforfeitable interest of an interest holder in the property is
7-27 valued in an amount greater than or substantially equal to the
8-1 present value of the property, the court shall order the property
8-2 released to the interest holder. If the court finds that the
8-3 nonforfeitable interest of an interest holder is valued in an
8-4 amount substantially less than the present value of the property
8-5 and that the property is subject to forfeiture, the court shall
8-6 order the property forfeited to the state with the attorney
8-7 representing the state acting as the agent of the state, and making
8-8 necessary orders to protect the nonforfeitable interest of the
8-9 interest holder. On final judgment of forfeiture, the attorney
8-10 representing the state shall dispose of the property in the manner
8-11 required by Section 12.706 of this code.
8-12 Sec. 12.706. DISPOSITION OF FORFEITED PROPERTY. (a) All
8-13 forfeited property shall be administered by the attorney
8-14 representing the state, acting as the agent of the state, in
8-15 accordance with accepted accounting practices and with the
8-16 provisions of any local agreement entered into between the attorney
8-17 representing the state and the department. If a local agreement
8-18 has not been executed, the property shall be sold on the 75th day
8-19 after the date of the final judgment of forfeiture at public
8-20 auction under the direction of the county sheriff, after notice of
8-21 public auction as provided by law for other sheriff's sales. The
8-22 proceeds of the sale shall be distributed as follows:
8-23 (1) to any interest holder to the extent of the
8-24 interest holder's nonforfeitable interest; and
8-25 (2) the balance, if any, after deduction of all
8-26 storage and disposal costs, to be deposited not later than the 30th
8-27 day after the date of the sale in the state treasury to the credit
9-1 of the general revenue fund.
9-2 (b) If a local agreement exists between the attorney
9-3 representing the state and the department, the attorney
9-4 representing the state may transfer the property to the department
9-5 to maintain, repair, use, and operate the property for official
9-6 purposes if the property is free of any interest of an interest
9-7 holder. The department may purchase the interest of an interest
9-8 holder so that the property can be released for use by the
9-9 department. The department may maintain, repair, use, and operate
9-10 the property with money appropriated for current operations. If
9-11 the property is a motor vehicle subject to registration under the
9-12 motor vehicle registration laws of this state, the department is
9-13 considered to be the purchaser and the certificate of title shall
9-14 be issued to the department. The department at any time may
9-15 transfer the property to a state, municipal or county law
9-16 enforcement agency for the use of that agency, or may at any time
9-17 dispose of the property in accordance with applicable law.
9-18 (c) If a local agreement exists between the attorney
9-19 representing the state and the department, all proceeds from the
9-20 sale of property shall be deposited according to the terms of the
9-21 agreement into the following funds:
9-22 (1) a special fund in the county treasury for the
9-23 benefit of the office of the attorney representing the state, to be
9-24 used by the attorney solely for the official purposes of his
9-25 office; and
9-26 (2) the game, fish, and water safety fund of the
9-27 department, the amounts deposited to be used solely for law
10-1 enforcement purposes, including salaries and overtime pay for
10-2 officers, officer training, specialized investigative equipment and
10-3 supplies, and items or equipment used by game wardens in direct law
10-4 enforcement duties.
10-5 (d) Proceeds awarded under this chapter to the attorney
10-6 representing the state may be spent by the attorney in accordance
10-7 with the terms of Chapter 59, Code of Criminal Procedure.
10-8 Expenditures are subject to audit provisions established in Chapter
10-9 59, Code of Criminal Procedure.
10-10 (e) On the sale of contraband under this subchapter, the
10-11 appropriate state agency shall issue a certificate of title to the
10-12 recipient if a certificate of title is required for the property by
10-13 other law.
10-14 (f) A final judgment of forfeiture under this subchapter
10-15 perfects the title of the state to the property as of the date that
10-16 the contraband was seized or the date the forfeiture action was
10-17 filed, whichever occurred first.
10-18 (g) The department shall account for the receipt and
10-19 disbursement of all such proceeds and property in an audit, which
10-20 is to be performed annually by the state. Certified copies of the
10-21 audit shall be delivered to the attorney general and to the
10-22 governor not later than 30 days after the audit is completed.
10-23 Sec. 12.707. IMMUNITY. An employee of the department who
10-24 seizes property under this subchapter is immune from liability and
10-25 from suit arising out of the employee's performance of the
10-26 employee's duties under this subchapter.
10-27 Sec. 12.708. RIGHT TO ATTORNEY NOT TO BE ABRIDGED. This
11-1 subchapter does not abridge an accused person's right to counsel in
11-2 a criminal case.
11-3 Sec. 12.709. ELECTION OF LAWS. If property is subject to
11-4 forfeiture under this subchapter and under any other law of this
11-5 state, the attorney representing the state may bring forfeiture
11-6 proceedings under either law.
11-7 Sec. 12.710. REPORT OF SEIZED AND FORFEITED AIRCRAFT. Not
11-8 later than the 10th day after the last day of each quarter of the
11-9 fiscal year, the department shall report to the State Aircraft
11-10 Pooling Board:
11-11 (1) a description of each aircraft that the department
11-12 has received by forfeiture under this subchapter during the
11-13 preceding quarter and the purposes for which the department intends
11-14 to use the aircraft; and
11-15 (2) a description of each aircraft the department
11-16 knows to have been seized under this subchapter during the
11-17 preceding quarter and the purposes for which the department would
11-18 use the aircraft if it were forfeited to the department.
11-19 SECTION 2. Sections 12.1106 and 43.112, Parks and Wildlife
11-20 Code, are repealed.
11-21 SECTION 3. (a) The change in law made by this Act applies
11-22 only to property that is contraband under Subchapter H, Chapter 12,
11-23 Parks and Wildlife Code, as added by this Act, and that is used in
11-24 the commission of an offense on or after the effective date of this
11-25 Act. For purposes of this section, an offense is committed before
11-26 the effective date of this Act if any element of the offense occurs
11-27 before that date.
12-1 (b) An offense committed before the effective date of this
12-2 Act is governed by the law in effect when the offense was
12-3 committed, and the former law is continued in effect for that
12-4 purpose.
12-5 SECTION 4. This Act takes effect September 1, 1993.
12-6 SECTION 5. The importance of this legislation and the
12-7 crowded condition of the calendars in both houses create an
12-8 emergency and an imperative public necessity that the
12-9 constitutional rule requiring bills to be read on three several
12-10 days in each house be suspended, and this rule is hereby suspended.