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.