By Madla                                               S.B. No. 705
       74R5454 GWK-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to certain offenses and delinquent conduct involving motor
    1-3  vehicles, to the forfeiture of certain motor vehicles, and to the
    1-4  disposition of proceeds from the sale of forfeited motor vehicles.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 22.05(e), Penal Code, is amended to read
    1-7  as follows:
    1-8        (e)  An offense under Subsection (a) is a Class A
    1-9  misdemeanor.  An offense under Subsection (b) is a felony of the
   1-10  third degree, except that the offense is a felony of the second
   1-11  degree if it is shown on the trial of the offense that:
   1-12              (1)  a person suffered serious bodily injury or died as
   1-13  a result of the commission of the offense; or
   1-14              (2)  the actor:
   1-15                    (A)  discharged the firearm while in or within 10
   1-16  feet of a stolen vehicle or a vehicle operated without the
   1-17  effective consent of the owner; and
   1-18                    (B)  was a party to the theft or unauthorized use
   1-19  of the motor vehicle.
   1-20        SECTION 2.  Chapter 42, Code of Criminal Procedure, is
   1-21  amended by adding Article 42.039 to read as follows:
   1-22        Art. 42.039.  FORFEITURE OF MOTOR VEHICLE.  (a)  In addition
   1-23  to the penalty otherwise provided by law, if it is shown on the
   1-24  trial of an offense under Section 22.05(b), Penal  Code, that the
    2-1  defendant used a stolen motor vehicle during the commission of or
    2-2  in immediate flight after the commission of the offense, the court
    2-3  may order forfeited to the state a motor vehicle owned by the
    2-4  defendant both at the time of the offense and on the date of
    2-5  conviction.  If the defendant owns more than one motor vehicle and
    2-6  the court orders forfeiture, the court shall order forfeited a
    2-7  vehicle owned by the defendant on which no lien exists or, if all
    2-8  vehicles are encumbered by liens, the vehicle with the smallest
    2-9  encumbrance.
   2-10        (b)  If a child younger than 18 years of age commits an
   2-11  offense under Section 22.05(b), Penal Code, that involves the use
   2-12  of a stolen motor vehicle in the manner described by Subsection
   2-13  (a), the court may order forfeited to the state a motor vehicle
   2-14  owned both at the time of the offense and on the date of the
   2-15  conviction by a parent or other person who has the duty of control
   2-16  and reasonable discipline of the child.  If the parent or other
   2-17  person owns more than one motor vehicle and the court orders
   2-18  forfeiture, the court shall order forfeited a vehicle owned by the
   2-19  parent or other person on which no lien exists or, if all vehicles
   2-20  are encumbered by liens, the vehicle with the smallest encumbrance.
   2-21        (c)  Subsections (d)-(g) of this article apply to the
   2-22  forfeiture of a motor vehicle under an order issued under Section
   2-23  54.044, Family Code.
   2-24        (d)  The district or the county attorney may seek a temporary
   2-25  restraining order prohibiting the defendant or a person who may be
   2-26  subject to Section 54.044, Family Code, from selling or disposing
   2-27  of a vehicle described in Subsection (a) or (b) or Section 54.044,
    3-1  Family Code, and may, within 20 days from the date of the arrest of
    3-2  the defendant or child, request a hearing in a county court or
    3-3  district court in the county to determine whether the vehicle is
    3-4  subject to forfeiture.  The court in which the hearing is to be
    3-5  held shall set the cause for a hearing to be held no later than the
    3-6  20th day after the date on which the district or the county
    3-7  attorney requests the hearing.  The court shall serve notice of the
    3-8  hearing to the defendant, a party described by Subsection (b) or
    3-9  Section 54.044, Family Code, and any lienholder or other secured
   3-10  party whose interest in the motor vehicle is registered as provided
   3-11  by law, in the manner provided for service of process by citation
   3-12  in civil cases.
   3-13        (e)  If at a hearing requested under Subsection (c) no person
   3-14  entitled to notice files a denial stating that the motor vehicle is
   3-15  not subject to forfeiture, the court shall find that the vehicle is
   3-16  subject to forfeiture.  If a person files a denial denying that the
   3-17  motor vehicle is subject to forfeiture, the court shall hear
   3-18  evidence to determine whether the vehicle is subject to forfeiture.
   3-19  If the court determines that the vehicle is subject to forfeiture,
   3-20  the court shall enter an order enjoining the defendant, child, or
   3-21  other party from selling or disposing of the vehicle pending the
   3-22  outcome of the applicable prosecution or adjudication.  The court
   3-23  shall specify in the order that if the defendant or child is
   3-24  acquitted, the injunction shall expire on the date of the
   3-25  acquittal.  If after the court has issued an order under this
   3-26  subsection the defendant or other party proves by document or other
   3-27  evidence satisfactory to the court that the proceeding or
    4-1  prosecution of the defendant or the petition against the child has
    4-2  been dismissed, the court shall terminate the injunction.
    4-3        (f)  A motor vehicle to which this article applies and that
    4-4  has been forfeited shall be sold at a public auction under the
    4-5  direction of the sheriff after notice of public auction as provided
    4-6  by law for other sheriff's sales.  The proceeds of the sale shall
    4-7  be delivered to the county clerk and shall be disposed of as
    4-8  follows:
    4-9              (1)  to any person, including a bona fide lienholder,
   4-10  secured party, or other party holding an interest in the vehicle in
   4-11  the nature of a security interest, to the extent of that person's
   4-12  interest; and
   4-13              (2)  the balance, if any, to be deposited in a special
   4-14  fund in the county treasury established under Article 59.06(j).
   4-15        (g)  The Texas Department of Transportation shall issue a
   4-16  certificate of title to any person who purchases a motor vehicle
   4-17  under this article.
   4-18        SECTION 3.  Article 59.01(2), Code of Criminal Procedure, as
   4-19  amended by Chapters 761 and 828, Acts of the 73rd Legislature,
   4-20  Regular Session, 1993, is amended to read as follows:
   4-21              (2)  "Contraband" means property of any nature,
   4-22  including real, personal, tangible, or intangible, that is:
   4-23                    (A)  used in the commission of:
   4-24                          (i)  any first or second degree felony
   4-25  under the Penal Code;
   4-26                          (ii)  any felony under Chapters 29, 30, 31,
   4-27  or 32, Penal Code; <or>
    5-1                          (iii)  any felony under The Securities Act
    5-2  (Article 581-1 et seq., Vernon's Texas Civil Statutes); or
    5-3                          (iv)  a felony under Section 22.05(b),
    5-4  Penal Code;
    5-5                    (B)  used or intended to be used in the
    5-6  commission of:
    5-7                          (i)  any felony under Chapter 481, Health
    5-8  and Safety Code (Texas Controlled Substances Act);
    5-9                          (ii)  any felony under Chapter 483, Health
   5-10  and Safety Code;
   5-11                          (iii)  a felony under Article 350, Revised
   5-12  Statutes; <or>
   5-13                          (iv)  any felony under Chapter 34, Penal
   5-14  Code; <or>
   5-15                          (v) <(iv)>  a Class A misdemeanor under
   5-16  Subchapter B, Chapter 365, Health and Safety Code, if the defendant
   5-17  has been previously convicted twice of an offense under that
   5-18  subchapter; or
   5-19                          (vi) <(v)>  any felony under The Sale of
   5-20  Checks Act (Article 489d, Vernon's Texas Civil Statutes);
   5-21                    (C)  the proceeds gained from the commission of a
   5-22  felony listed in Paragraph (A) or (B) of this subdivision or a
   5-23  crime of violence; or
   5-24                    (D)  acquired with proceeds gained from the
   5-25  commission of a felony listed in Paragraph (A) or (B) of this
   5-26  subdivision or a crime of violence.
   5-27        SECTION 4.  Article 59.06, Code of Criminal Procedure, is
    6-1  amended by adding Subsection (j) to read as follows:
    6-2        (j)  Regardless of whether a local agreement exists between
    6-3  the attorney representing the state and law enforcement agencies, a
    6-4  forfeited vehicle that was used in the commission of an offense
    6-5  that involved the discharge of a firearm from the vehicle shall be
    6-6  sold by the sheriff in the same manner as forfeited property under
    6-7  Subsection (a).  After deducting the amount owed to an interest
    6-8  holder to the extent of the holder's nonforfeitable interest, the
    6-9  proceeds shall be deposited in a special fund in the county
   6-10  treasury.  The attorney shall use the fund only to support programs
   6-11  designed to suppress youth gang activity in the county where the
   6-12  offense leading to the forfeiture occurred.  The program may be
   6-13  sponsored by a local law enforcement agency, a school district, or
   6-14  another group the attorney determines is appropriate.
   6-15        SECTION 5.  Chapter 54, Family Code, is amended by adding
   6-16  Section 54.044 to read as follows:
   6-17        Sec. 54.044.  FORFEITURE OF VEHICLE.  If the court or jury
   6-18  makes the finding specified by Section 54.04(c) and the child was
   6-19  adjudicated as a delinquent child for having engaged in conduct
   6-20  that constitutes an offense under Section 22.05(b), Penal Code, and
   6-21  the court or jury determines that the child used a stolen motor
   6-22  vehicle during the commission of or in immediate flight after the
   6-23  commission of the offense,  the court may order forfeited to the
   6-24  state a motor vehicle owned at the time of the offense and at the
   6-25  time of the adjudication by a parent or other person who has the
   6-26  duty of control and reasonable discipline of the child.  If the
   6-27  parent or other person owns more than one motor vehicle and the
    7-1  court orders forfeiture, the court shall order forfeited a vehicle
    7-2  owned by the parent or other person on which no lien exists or, if
    7-3  all vehicles are encumbered by liens, the vehicle with the smallest
    7-4  encumbrance.
    7-5        SECTION 6.  (a)  The change in law made by Section 1 of this
    7-6  Act applies only to the punishment for an offense committed on or
    7-7  after the effective date of this Act.
    7-8        (b)  The changes in law made by Sections 2-5 of this Act
    7-9  apply only to the forfeiture of property as a result of an offense
   7-10  committed or conduct engaged in on or after the effective date of
   7-11  this Act.  For purposes of this section, an offense is committed or
   7-12  conduct is engaged in before the effective date of this Act if any
   7-13  element of the offense or conduct occurs before that date.
   7-14        (c)  The punishment for and forfeiture of property as a
   7-15  result of an offense committed or conduct engaged in before the
   7-16  effective date of this Act is governed by the law in effect when
   7-17  the offense was committed or the conduct engaged in, and the former
   7-18  law is continued in effect for that purpose.
   7-19        SECTION 7.  This Act takes effect September 1, 1995.
   7-20        SECTION 8.  The importance of this legislation and the
   7-21  crowded condition of the calendars in both houses create an
   7-22  emergency and an imperative public necessity that the
   7-23  constitutional rule requiring bills to be read on three several
   7-24  days in each house be suspended, and this rule is hereby suspended.