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.