By De La Garza, Solis                                 H.B. No. 1668
       74R5083 NSC-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the forfeiture of contraband.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Article 59.01(2), Code of Criminal Procedure, as
    1-5  amended by Section 5, Chapter 761, and Section 1, Chapter 828, Acts
    1-6  of the 73rd Legislature, Regular Session, 1993, is amended to read
    1-7  as follows:
    1-8              (2)  "Contraband" means property of any nature,
    1-9  including real, personal, tangible, or intangible, that is:
   1-10                    (A)  used in the commission of:
   1-11                          (i)  any first or second degree felony
   1-12  under the Penal Code;
   1-13                          (ii)  any felony under Chapters 29, 30, 31,
   1-14  or 32, Penal Code; or
   1-15                          (iii)  any felony under The Securities Act
   1-16  (Article 581-1 et seq., Vernon's Texas Civil Statutes);
   1-17                    (B)  used or intended to be used in the
   1-18  commission of:
   1-19                          (i)  any felony under Chapter 481, Health
   1-20  and Safety Code (Texas Controlled Substances Act);
   1-21                          (ii)  any felony under Chapter 483, Health
   1-22  and Safety Code;
   1-23                          (iii)  a felony under Article 350, Revised
   1-24  Statutes; <or>
    2-1                          (iv)  any felony under Chapter 34, Penal
    2-2  Code; <or>
    2-3                          (v) <(iv)>  a Class A misdemeanor under
    2-4  Subchapter B, Chapter 365, Health and Safety Code, if the defendant
    2-5  has been previously convicted twice of an offense under that
    2-6  subchapter;
    2-7                          (vi) <(v)>  any felony under The Sale of
    2-8  Checks Act (Article 489d, Vernon's Texas Civil Statutes);
    2-9                          (vii)  a felony under Section 38.07, 38.09,
   2-10  or 38.11, Penal Code; or
   2-11                          (viii)  a violation of Section 61.022,
   2-12  Parks and Wildlife Code;
   2-13                    (C)  the proceeds gained from the commission of
   2-14  an offense or violation <a felony> listed in Paragraph (A) or (B)
   2-15  of this subdivision or a crime of violence; or
   2-16                    (D)  acquired with proceeds gained from the
   2-17  commission of an offense or violation <a felony> listed in
   2-18  Paragraph (A) or (B) of this subdivision or a crime of violence.
   2-19        SECTION 2.  Article 59.02(g), Code of Criminal Procedure, is
   2-20  amended to read as follows:
   2-21        (g)  The forfeiture provisions of this chapter apply to
   2-22  contraband as defined by Article 59.01(2)(B)(v) <59.01(2)(B)(iv)>
   2-23  of this code only in a municipality with a population of 250,000 or
   2-24  more.
   2-25        SECTION 3.  Articles 59.05(a), (b), and (d), Code of Criminal
   2-26  Procedure, are amended to read as follows:
   2-27        (a)  All parties must comply with the rules of pleading as
    3-1  required in civil suits.  A complaint, information, or indictment
    3-2  must allege, with reasonable certainty, the property that may be
    3-3  subject to forfeiture under this chapter.  In lieu of filing an
    3-4  answer, the defendant in the criminal case for the underlying
    3-5  offense may enter a plea contesting or not contesting the
    3-6  forfeiture after the defendant enters a plea at an arraignment.
    3-7        (b)  A case <All cases> under this chapter shall proceed in a
    3-8  separate hearing after conviction and before the penalty phase of
    3-9  the criminal trial for the underlying offense <to trial in the same
   3-10  manner as in other civil cases>.  The trial court judge or a jury,
   3-11  if punishment is to be assessed by the jury in the trial, shall
   3-12  determine whether the property is subject to forfeiture.  The state
   3-13  has the burden of proving by a preponderance of the evidence that
   3-14  property is subject to forfeiture.
   3-15        (d)  A <final> conviction or a plea of guilty or nolo
   3-16  contendere for an underlying offense is <not> a requirement for
   3-17  forfeiture under this chapter.  <An owner or interest holder may
   3-18  present evidence of a dismissal or acquittal of an underlying
   3-19  offense in a forfeiture proceeding, and evidence of an acquittal
   3-20  raises a presumption that the property or interest that is the
   3-21  subject of the hearing is nonforfeitable.  This presumption can be
   3-22  rebutted by evidence that the owner or interest holder knew or
   3-23  should have known that the property was contraband.>
   3-24        SECTION 4.  Articles 59.06(g) and (h), Code of Criminal
   3-25  Procedure, are amended to read as follows:
   3-26        (g)(1)  All law enforcement agencies and attorneys
   3-27  representing the state who receive proceeds or property under this
    4-1  chapter shall account for the seizure, receipt, and disbursement of
    4-2  all such proceeds and property in an audit, which is to be
    4-3  performed annually by the commissioners court or governing body of
    4-4  a municipality, as appropriate.  The audit shall be completed on a
    4-5  form provided by the comptroller <Criminal Justice Division of the
    4-6  Governor's Office>.  Certified copies of the audit shall be
    4-7  delivered by the law enforcement agency or attorney representing
    4-8  the state to the comptroller <Criminal Justice Division of the
    4-9  Governor's Office> no later than January 1 of each year <30 days
   4-10  after the audit is completed>.  The comptroller shall submit
   4-11  annually to the legislature a report of the proceeds and property
   4-12  received under this chapter.
   4-13              (2)  A law enforcement agency or attorney representing
   4-14  the state is liable to the state for a civil penalty if the agency
   4-15  or attorney fails to submit an audit to the comptroller as required
   4-16  by Subdivision (1).  The amount of the penalty is equal to 10
   4-17  percent of the value of proceeds or property received by the agency
   4-18  or the office of the attorney representing the state during the
   4-19  year before the audit was due.  The attorney general may recover
   4-20  the penalty on behalf of the state in a suit brought in Travis
   4-21  County.
   4-22        (h)(1)  As a specific exception to the requirement of
   4-23  Subdivisions (1)-(3) of Subsection (c) of this article that the
   4-24  funds described by those subdivisions be used only for the official
   4-25  purposes of the attorney representing the state or for law
   4-26  enforcement purposes, on agreement between the attorney
   4-27  representing the state or the head of a law enforcement agency and
    5-1  the governing body of a political subdivision, the attorney
    5-2  representing the state or the head of the law enforcement agency
    5-3  shall <comply with the request of the governing body to> deposit
    5-4  not more than a total of 25 <10> percent of the gross amount
    5-5  credited to the attorney's or agency's fund into the treasury of
    5-6  the political subdivision.  The governing body of the political
    5-7  subdivision shall, by ordinance, order, or resolution, use funds
    5-8  received under this subdivision <subsection> for:
    5-9                    (A) <(1)>  nonprofit programs for the prevention
   5-10  of drug abuse;
   5-11                    (B) <(2)>  nonprofit chemical dependency
   5-12  treatment facilities licensed under Chapter 464, Health and Safety
   5-13  Code; <or>
   5-14                    (C) <(3)>  nonprofit drug and alcohol
   5-15  rehabilitation or prevention programs administered or staffed by
   5-16  professionals designated as qualified and credentialed by the Texas
   5-17  Commission on Alcohol and Drug Abuse; or
   5-18                    (D)  juvenile crime prevention or criminal gang
   5-19  prevention programs.
   5-20              (2)  The governing body of a political subdivision may
   5-21  not use funds received under this subchapter for programs or
   5-22  facilities listed under Paragraphs (A)-(C), Subsection (h)(1), of
   5-23  this article <Subdivisions (1)-(3) of this subsection> if an
   5-24  officer of or member of the Board of Directors of the entity
   5-25  providing the program or facility is related to a member of the
   5-26  governing body, the attorney representing the state, or the head of
   5-27  the law enforcement agency within the third degree by consanguinity
    6-1  or the second degree by affinity.  As a specific exception to
    6-2  Subdivision (4) of Subsection (c) of this article, the director of
    6-3  a state law enforcement agency shall <may> use not more than a
    6-4  total of 25 <10> percent of the amount credited to the special fund
    6-5  of the agency under that subdivision for:
    6-6                    (A)  the prevention of drug abuse and the
    6-7  treatment of persons with drug-related problems; or
    6-8                    (B)  the prevention of criminal gang activity or
    6-9  juvenile crime.
   6-10        SECTION 5.  (a)  Except as provided by Subsection (c) of this
   6-11  section, the change in law made by this Act applies only to the
   6-12  forfeiture of contraband from an offense committed on or after the
   6-13  effective date of this Act.  For purposes of this section, an
   6-14  offense is committed before the effective date of this Act if any
   6-15  element of the offense occurs before that date.
   6-16        (b)  The forfeiture of contraband from an offense committed
   6-17  before the effective date of this Act is covered by the law in
   6-18  effect when the offense was committed, and the former law is
   6-19  continued in effect for this purpose.
   6-20        (c)  The change in law made by Article 59.06(h), Code of
   6-21  Criminal Procedure, as amended by this Act, applies only to money
   6-22  credited to a special fund of the attorney representing the state
   6-23  or a law enforcement agency on or after the effective date of this
   6-24  Act.  Money credited to a special fund before the effective date of
   6-25  this Act is covered by the law in effect when the money was
   6-26  credited to the fund, and the former law is continued in effect for
   6-27  this purpose.
    7-1        SECTION 6.  This Act takes effect September 1, 1995.
    7-2        SECTION 7.  The importance of this legislation and the
    7-3  crowded condition of the calendars in both houses create an
    7-4  emergency and an imperative public necessity that the
    7-5  constitutional rule requiring bills to be read on three several
    7-6  days in each house be suspended, and this rule is hereby suspended.