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.