1-1 By: Bivins S.B. No. 1270
1-2 (In the Senate - Filed March 15, 1993; March 17, 1993, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 15, 1993, rereferred to Committee on Natural Resources;
1-5 May 7, 1993, reported favorably by the following vote: Yeas 8,
1-6 Nays 0; May 7, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Sims x
1-10 Truan x
1-11 Armbrister x
1-12 Barrientos x
1-13 Bivins x
1-14 Brown x
1-15 Carriker x
1-16 Lucio x
1-17 Montford x
1-18 Ratliff x
1-19 Shelley x
1-20 A BILL TO BE ENTITLED
1-21 AN ACT
1-22 relating to the seizure, forfeiture, and disposition of contraband
1-23 used in the commission of certain offenses under the Parks and
1-24 Wildlife Code; providing immunity for certain department employees.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Chapter 12, Parks and Wildlife Code, is amended
1-27 by adding Subchapter H to read as follows:
1-28 SUBCHAPTER H. FORFEITURE OF CONTRABAND
1-29 Sec. 12.701. DEFINITIONS. In this subchapter:
1-30 (1) "Aircraft" means any device used or capable of use
1-31 for flight in the air, including airplanes, helicopters, and
1-32 ultralight airplanes.
1-33 (2) "Attorney representing the state" means the
1-34 prosecutor with felony jurisdiction in the county in which a
1-35 forfeiture proceeding is held under this subchapter.
1-36 (3) "Contraband" means:
1-37 (A) aircraft, vehicles, firearms, or other
1-38 devices used in the commission of a violation of Subchapter G,
1-39 Chapter 43, of this code or a regulation issued under that
1-40 subchapter; or
1-41 (B) a vessel that is not documented by the
1-42 United States Coast Guard or registered under an approved numbering
1-43 system in accord with the Federal Boating Act of 1958 and
1-44 subsequent federal legislation and that is used in the commission
1-45 of a violation of Section 66.006 of this code or a regulation
1-46 issued under that section.
1-47 (4) "Interest holder" means the bona fide holder of a
1-48 perfected lien or a perfected security interest in property.
1-49 (5) "Law enforcement agency" means an agency of the
1-50 state or an agency of a political subdivision of the state
1-51 authorized by law to employ peace officers.
1-52 (6) "Owner" means a person who claims an equitable or
1-53 legal ownership interest in property.
1-54 (7) "Seizure" means the restraint of property by a
1-55 game warden under Section 12.703 of this code, whether the game
1-56 warden restrains the property by physical force or by a display of
1-57 the game warden's authority.
1-58 (8) "Vessel" means any watercraft used or capable of
1-59 being used for transportation on water and includes motors attached
1-60 to the vessel.
1-61 Sec. 12.702. FORFEITURE OF CONTRABAND. (a) Property that
1-62 is contraband is subject to seizure and forfeiture under this
1-63 subchapter.
1-64 (b) Any property that is contraband, other than property
1-65 held as evidence in a criminal investigation or a pending criminal
1-66 case, that is seized under this subchapter may be replevied by the
1-67 owner or interest holder of the property on execution of a cash
1-68 bond in a sum equal to the appraised value of the property
2-1 replevied. In lieu of cash, the bond must be a good and valid bond
2-2 with sufficient surety in a sum equal to the appraised value of the
2-3 property replevied, executed by an insurance company that holds a
2-4 certificate of authority to transact the business of insurance in
2-5 this state. The bond may be approved as to form and substance by
2-6 the court after the court gives notice of the bond to the authority
2-7 holding the seized property. The bond must be conditioned:
2-8 (1) on return of the property to the custody of the
2-9 state on the day of hearing of the forfeiture proceedings; and
2-10 (2) that the interest holder or owner of the property
2-11 will abide by the decision that may be made in the cause.
2-12 (c) An owner's or interest holder's interest in property may
2-13 not be forfeited under this subchapter if the owner or interest
2-14 holder:
2-15 (1) acquired and perfected the interest before or
2-16 during the act or omission giving rise to forfeiture; and
2-17 (2) did not know or should not reasonably have known
2-18 of the act or omission giving rise to the forfeiture or that it was
2-19 likely to occur at or before the time of acquiring and perfecting
2-20 the interest.
2-21 (d) On motion by any party or on the motion of the court,
2-22 after notice in the manner provided by Section 12.704 of this code
2-23 to all known owners and interest holders of property subject to
2-24 forfeiture under this subchapter, and after a hearing on the
2-25 matter, the court may make appropriate orders to preserve and
2-26 maintain the value of the property until a final disposition of the
2-27 property is made under this subchapter, including the sale of the
2-28 property if that is the only method by which the value of the
2-29 property may be preserved until final disposition.
2-30 Sec. 12.703. SEIZURE OF CONTRABAND. (a) Property subject
2-31 to forfeiture under this subchapter may be seized by a game warden
2-32 under authority of a search warrant.
2-33 (b) Seizure of property subject to forfeiture may be made
2-34 without warrant if:
2-35 (1) the owner, operator, or agent in charge of the
2-36 property knowingly consents;
2-37 (2) the seizure is incident to a search to which the
2-38 owner, operator, or agent in charge of the property knowingly
2-39 consents;
2-40 (3) the property subject to seizure has been the
2-41 subject of a prior judgment in favor of the state in a forfeiture
2-42 proceeding under this subchapter; or
2-43 (4) the seizure was incident to a lawful arrest,
2-44 lawful search, or lawful search incident to arrest.
2-45 (c) A game warden who seizes property under this subchapter
2-46 has custody of the property, subject only to replevy under Section
2-47 12.702 of this code or an order of a court. A game warden who has
2-48 custody of property shall provide the attorney representing the
2-49 state with a sworn statement that contains a schedule of the
2-50 property seized, an acknowledgment that the officer has seized the
2-51 property, and a list of the officer's reasons for the seizure. Not
2-52 later than 72 hours after the seizure, the game warden shall:
2-53 (1) place the property under seal;
2-54 (2) remove the property to a place ordered by the
2-55 court; or
2-56 (3) remove the property to a place for safekeeping.
2-57 Sec. 12.704. NOTIFICATION OF FORFEITURE PROCEEDING. (a) If
2-58 a game warden seizes property under this subchapter, the attorney
2-59 representing the state shall commence proceedings under this
2-60 section not later than the 30th day after the date of the seizure.
2-61 (b) A forfeiture proceeding commences under this subchapter
2-62 when the attorney representing the state files a notice of the
2-63 seizure and intended forfeiture in the name of the state with the
2-64 clerk of the district court in the county in which the seizure is
2-65 made. The attorney representing the state must attach to the
2-66 notice the game warden's sworn statement under Section 12.703 of
2-67 this code. The attorney representing the state shall cause
2-68 certified copies of the notice to be served on the following
2-69 persons in the same manner as provided for the service of process
2-70 by citation in civil cases:
3-1 (1) the owner of the property; and
3-2 (2) any interest holder in the property.
3-3 (c) If the property is a motor vehicle and if there is
3-4 reasonable cause to believe that the vehicle has been registered
3-5 under the laws of this state, the attorney representing the state
3-6 shall ask the Texas Transportation Department to identify from its
3-7 records the record owner of the vehicle and any interest holder.
3-8 (d) If the property is a motor vehicle and is not registered
3-9 in this state, the attorney representing the state shall attempt to
3-10 ascertain the name and address of the person in whose name the
3-11 vehicle is licensed in another state. If the vehicle is licensed
3-12 in a state that has a certificate of title law, the attorney
3-13 representing the state shall request the appropriate agency of that
3-14 state to identify the record owner of the vehicle and any interest
3-15 holder.
3-16 (e) If a financing statement is required by law to be filed
3-17 to perfect a security interest affecting the property and if there
3-18 is reasonable cause to believe that a financing statement has been
3-19 filed, the attorney representing the state who commences the
3-20 proceedings shall ask the appropriate official designated by
3-21 Chapter 9, Business & Commerce Code, to identify the record owner
3-22 of the property and the person who is an interest holder.
3-23 (f) If the property is an aircraft or a part of an aircraft,
3-24 and if there is reasonable cause to believe that a perfected
3-25 security instrument affects the property, the attorney representing
3-26 the state shall request an administrator of the Federal Aviation
3-27 Administration to identify from the records of that agency the
3-28 record owner of the property and the holder of the perfected
3-29 security instrument.
3-30 (g) For all other property subject to forfeiture, if there
3-31 is reasonable cause to believe that a perfected security instrument
3-32 affects the property, the attorney representing the state shall
3-33 make a good faith inquiry to identify the holder of the perfected
3-34 security instrument.
3-35 (h) The attorney representing the state who commences the
3-36 proceedings shall cause the owner and any interest holder to be
3-37 named as a party and to be served with citation as provided by the
3-38 Texas Rules of Civil Procedure.
3-39 (i) If the owner of the property is unknown, the attorney
3-40 representing the state shall file with the clerk of the court in
3-41 which the proceedings are pending an affidavit stating that the
3-42 owner of the property is unknown. The clerk of the court shall
3-43 issue a citation for service by publication addressed to "The
3-44 Unknown Owner of _____________," filling in the blank space with a
3-45 reasonably detailed description of the property subject to
3-46 forfeiture. The citation must contain the other requisites
3-47 prescribed by and be served as provided by Rules 114 and 116, Texas
3-48 Rules of Civil Procedure.
3-49 Sec. 12.705. FORFEITURE HEARING. (a) All parties must
3-50 comply with the rules of pleading as required in civil suits.
3-51 (b) All cases under this subchapter shall proceed to trial
3-52 in the same manner as in other civil cases. The state has the
3-53 burden of proving by a preponderance of the evidence that property
3-54 is subject to forfeiture.
3-55 (c) A final conviction for an underlying offense is not a
3-56 requirement for forfeiture under this subchapter. An owner or
3-57 interest holder may present evidence of a dismissal or acquittal of
3-58 an underlying offense in a forfeiture proceeding, and evidence of
3-59 an acquittal raises a presumption that the property or interest
3-60 that is the subject of the hearing is nonforfeitable. This
3-61 presumption can be rebutted by evidence that the owner or interest
3-62 holder knew or should have known that the property was contraband.
3-63 (d) If the court finds that all or any part of the property
3-64 is subject to forfeiture, the judge shall forfeit the property to
3-65 the state, with the attorney representing the state as the agent
3-66 for the state, except that if the court finds that the
3-67 nonforfeitable interest of an interest holder in the property is
3-68 valued in an amount greater than or substantially equal to the
3-69 present value of the property, the court shall order the property
3-70 released to the interest holder. If the court finds that the
4-1 nonforfeitable interest of an interest holder is valued in an
4-2 amount substantially less than the present value of the property
4-3 and that the property is subject to forfeiture, the court shall
4-4 order the property forfeited to the state with the attorney
4-5 representing the state acting as the agent of the state, and making
4-6 necessary orders to protect the nonforfeitable interest of the
4-7 interest holder. On final judgment of forfeiture, the attorney
4-8 representing the state shall dispose of the property in the manner
4-9 required by Section 12.706 of this code.
4-10 Sec. 12.706. DISPOSITION OF FORFEITED PROPERTY. (a) All
4-11 forfeited property shall be administered by the attorney
4-12 representing the state, acting as the agent of the state, in
4-13 accordance with accepted accounting practices and with the
4-14 provisions of any local agreement entered into between the attorney
4-15 representing the state and the department. If a local agreement
4-16 has not been executed, the property shall be sold on the 75th day
4-17 after the date of the final judgment of forfeiture at public
4-18 auction under the direction of the county sheriff, after notice of
4-19 public auction as provided by law for other sheriff's sales. The
4-20 proceeds of the sale shall be distributed as follows:
4-21 (1) to any interest holder to the extent of the
4-22 interest holder's nonforfeitable interest; and
4-23 (2) the balance, if any, after deduction of all
4-24 storage and disposal costs, to be deposited not later than the 30th
4-25 day after the date of the sale in the state treasury to the credit
4-26 of the general revenue fund.
4-27 (b) If a local agreement exists between the attorney
4-28 representing the state and the department, the attorney
4-29 representing the state may transfer the property to the department
4-30 to maintain, repair, use, and operate the property for official
4-31 purposes if the property is free of any interest of an interest
4-32 holder. The department may purchase the interest of an interest
4-33 holder so that the property can be released for use by the
4-34 department. The department may maintain, repair, use, and operate
4-35 the property with money appropriated for current operations. If
4-36 the property is a motor vehicle subject to registration under the
4-37 motor vehicle registration laws of this state, the department is
4-38 considered to be the purchaser and the certificate of title shall
4-39 be issued to the department. The department at any time may
4-40 transfer the property to a state, municipal, or county law
4-41 enforcement agency for the use of that agency or may at any time
4-42 dispose of the property in accordance with applicable law.
4-43 (c) If a local agreement exists between the attorney
4-44 representing the state and the department, all proceeds from the
4-45 sale of property shall be deposited according to the terms of the
4-46 agreement into the following funds:
4-47 (1) a special fund in the county treasury for the
4-48 benefit of the office of the attorney representing the state, to be
4-49 used by the attorney solely for the official purposes of his
4-50 office; and
4-51 (2) the game, fish, and water safety fund of the
4-52 department, the amounts deposited to be used solely for law
4-53 enforcement purposes, including salaries and overtime pay for
4-54 officers, officer training, specialized investigative equipment and
4-55 supplies, and items or equipment used by game wardens in direct law
4-56 enforcement duties.
4-57 (d) Proceeds awarded under this chapter to the attorney
4-58 representing the state may be spent by the attorney in accordance
4-59 with the terms of Chapter 59, Code of Criminal Procedure.
4-60 Expenditures are subject to audit provisions established in Chapter
4-61 59, Code of Criminal Procedure.
4-62 (e) On the sale of contraband under this subchapter, the
4-63 appropriate state agency shall issue a certificate of title to the
4-64 recipient if a certificate of title is required for the property by
4-65 other law.
4-66 (f) A final judgment of forfeiture under this subchapter
4-67 perfects the title of the state to the property as of the date that
4-68 the contraband was seized or the date the forfeiture action was
4-69 filed, whichever occurred first.
4-70 (g) The department shall account for the receipt and
5-1 disbursement of all such proceeds and property in an audit, which
5-2 is to be performed annually by the state. Certified copies of the
5-3 audit shall be delivered to the attorney general and to the
5-4 governor not later than 30 days after the audit is completed.
5-5 Sec. 12.707. IMMUNITY. An employee of the department who
5-6 seizes property under this subchapter is immune from liability and
5-7 from suit arising out of the employee's performance of the
5-8 employee's duties under this subchapter.
5-9 Sec. 12.708. RIGHT TO ATTORNEY NOT TO BE ABRIDGED. This
5-10 subchapter does not abridge an accused person's right to counsel in
5-11 a criminal case.
5-12 Sec. 12.709. ELECTION OF LAWS. If property is subject to
5-13 forfeiture under this subchapter and under any other law of this
5-14 state, the attorney representing the state may bring forfeiture
5-15 proceedings under either law.
5-16 Sec. 12.710. REPORT OF SEIZED AND FORFEITED AIRCRAFT. Not
5-17 later than the 10th day after the last day of each quarter of the
5-18 fiscal year, the department shall report to the State Aircraft
5-19 Pooling Board:
5-20 (1) a description of each aircraft that the department
5-21 has received by forfeiture under this subchapter during the
5-22 preceding quarter and the purposes for which the department intends
5-23 to use the aircraft; and
5-24 (2) a description of each aircraft the department
5-25 knows to have been seized under this subchapter during the
5-26 preceding quarter and the purposes for which the department would
5-27 use the aircraft if it were forfeited to the department.
5-28 SECTION 2. Sections 12.1106 and 43.112, Parks and Wildlife
5-29 Code, are repealed.
5-30 SECTION 3. (a) The change in law made by this Act applies
5-31 only to property that is contraband under Subchapter H, Chapter 12,
5-32 Parks and Wildlife Code, as added by this Act, and that is used in
5-33 the commission of an offense on or after the effective date of this
5-34 Act. For purposes of this section, an offense is committed before
5-35 the effective date of this Act if any element of the offense occurs
5-36 before that date.
5-37 (b) An offense committed before the effective date of this
5-38 Act is governed by the law in effect when the offense was
5-39 committed, and the former law is continued in effect for that
5-40 purpose.
5-41 SECTION 4. This Act takes effect September 1, 1993.
5-42 SECTION 5. The importance of this legislation and the
5-43 crowded condition of the calendars in both houses create an
5-44 emergency and an imperative public necessity that the
5-45 constitutional rule requiring bills to be read on three several
5-46 days in each house be suspended, and this rule is hereby suspended.
5-47 * * * * *
5-48 Austin,
5-49 Texas
5-50 May 7, 1993
5-51 Hon. Bob Bullock
5-52 President of the Senate
5-53 Sir:
5-54 We, your Committee on Natural Resources to which was referred S.B.
5-55 No. 1270, have had the same under consideration, and I am
5-56 instructed to report it back to the Senate with the recommendation
5-57 that it do pass and be printed.
5-58 Sims,
5-59 Chairman
5-60 * * * * *
5-61 WITNESSES
5-62 No witnesses appeared on S.B. No. 1270.