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.