By: Ellis S.B. No. 1217
A BILL TO BE ENTITLED
AN ACT
1-1 relating to notification of certain interest holders and owners of
1-2 seized contraband in forfeiture proceedings under Chapter 59, Code
1-3 of Criminal Procedure; providing that asset forfeiture is remedial
1-4 in nature, rather than punitive.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subsections (b), (c), and (i), Article 59.04,
1-7 Code of Criminal Procedure, are amended to read as follows:
1-8 (b) A forfeiture proceeding commences under this chapter
1-9 when the attorney representing the state files a notice of the
1-10 seizure and intended forfeiture in the name of the state with the
1-11 clerk of the district court in the county in which the seizure is
1-12 made. The attorney representing the state must attach to the
1-13 notice the peace officer's sworn statement under Article 59.03 of
1-14 this code. Except as provided by subsection (c) of this article,
1-15 the <The> attorney representing the state shall cause certified
1-16 copies of the notice to be served on the following persons in the
1-17 same manner as provided for the service of process by citation in
1-18 civil cases:
1-19 (1) the owner of the property; and
1-20 (2) any interest holder in the property.
1-21 (c) If the property is a motor vehicle, and if there is
1-22 reasonable cause to believe that the vehicle has been registered
1-23 under the laws of this state, the attorney representing the state
2-1 shall ask the State Department of Highways and Public
2-2 Transportation to identify from its records the owner of the
2-3 vehicle and any interest holder. If the addresses of the owner and
2-4 interest holder are not otherwise known, the attorney representing
2-5 the state shall request citation be served upon such persons at the
2-6 address listed with the State Department of Highways and Public
2-7 Transportation. If the citation to such address is returned
2-8 unserved, the attorney representing the State shall cause a copy of
2-9 the notice of seizure and intended forfeiture to be posted at the
2-10 court house door, to remain there for a period of not less than
2-11 thirty days. If the owner or interest holder does not answer or
2-12 appear after the notice has been so posted, the court shall enter a
2-13 judgment by default as to the owner or interest holder, provided
2-14 that the attorney representing the state files a written motion
2-15 supported by affidavit setting forth the attempted service. An
2-16 owner or interest holder whose interest is forfeited in this manner
2-17 shall not be liable for court costs. If the person in possession
2-18 of the vehicle at the time of seizure is not the owner or the
2-19 interest holder of the vehicle, notification shall be provided to
2-20 the possessor in the same manner specified for notification to an
2-21 owner or interest holder.
2-22 (i) Except as provided by Section (c) of this article, the
2-23 <The> attorney representing the state who commences the proceedings
2-24 shall cause the owner and any interest holder to be named as a
2-25 party and to be served with citation as provided by the Texas Rules
3-1 of Civil Procedure.
3-2 SECTION 2. Subsection (e), Article 59.05, Code of Criminal
3-3 Procedure, is amended to read as follows:
3-4 It is the intention of the legislature that asset forfeiture
3-5 serve as restitution to the state, designed to make the state and
3-6 its agencies whole. It is remedial in nature and not a form of
3-7 punishment. If the court finds that all or any part of the
3-8 property is subject to forfeiture, the judge shall forfeit the
3-9 property to the state, with the attorney representing the state as
3-10 the agent of the state, except that if the court finds that the
3-11 nonforfeitable interest of an interest holder in the property is
3-12 valued in an amount greater than or substantially equal to the
3-13 present value of the property, the court shall order the property
3-14 released to the interest holder. If the court finds that the
3-15 nonforfeitable interest of an interest holder is valued in an
3-16 amount substantially less than the present value of the property
3-17 and that the property is subject to forfeiture, the court shall
3-18 order the property forfeited to the state with the attorney
3-19 representing the state acting as the agent of the state, and making
3-20 necessary orders to protect the nonforfeitable interest of the
3-21 interest holder. On final judgment of forfeiture, the attorney
3-22 representing the state shall dispose of the property in the manner
3-23 required by Article 59.06 of this code.
3-24 SECTION 3. SEVERABILITY. If any section, sentence, clause,
3-25 or part of this Act shall, for any reason, be held invalid, such
4-1 invalidity shall not affect the remaining portions of the Act, and
4-2 it is hereby declared to be the intention of this legislature to
4-3 have passed each section, sentence, clause, or part irrespective of
4-4 the fact that any other section, sentence, clause, or part may be
4-5 declared invalid.
4-6 SECTION 4. EFFECTIVE DATE. This Act takes effect on
4-7 September 1, 1995.
4-8 SECTION 5. EMERGENCY. The importance of this legislation
4-9 and the crowded condition of the calendars in both houses create an
4-10 emergency and an imperative public necessity that the
4-11 constitutional rule requiring bills to be read on three several
4-12 days in each house be suspended, and this rule is hereby suspended,
4-13 and that this Act take effect and be in force from and after its
4-14 passage, and it is so enacted.