By Elkins H.B. No. 3171
76R6625 WP-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to law enforcement procedures for obtaining electronic
1-3 data from pawnshops, information requirements for transactions
1-4 records, firearms background checks, and recovery of stolen
1-5 property.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 371.003, Finance Code, is amended by
1-8 adding Subdivisions (10)-(14) to read as follows:
1-9 (10) "Chief law enforcement official" means the
1-10 sheriff of the county in which a pawnshop is located or, if a
1-11 pawnshop is located in a municipality, the police chief of the
1-12 municipality in which the pawnshop is located.
1-13 (11) "Designated law enforcement official" means any
1-14 law enforcement official or employee working for a recognized law
1-15 enforcement agency who is designated by the chief law enforcement
1-16 official of the jurisdiction in which the pawnshop operates to
1-17 monitor and work with pawnshops.
1-18 (12) "Misappropriated" means stolen, embezzled,
1-19 converted, or otherwise wrongfully appropriated against the will of
1-20 the rightful owner.
1-21 (13) "Pledgor" means an individual who pledges goods
1-22 to a pawnbroker in connection with a pawn transaction.
1-23 (14) "NICS" means the National Instant Criminal
1-24 Background Check System operated by the Federal Bureau of
2-1 Investigation.
2-2 SECTION 2. Section 371.157, Finance Code, is amended to read
2-3 as follows:
2-4 Sec. 371.157. PAWN TICKET. A pawnbroker, at the time a pawn
2-5 transaction is entered, shall deliver to the pledgor a pawn ticket
2-6 or other memorandum that clearly shows:
2-7 (1) the name and address of the pawnshop;
2-8 (2) the pledgor's name, address, telephone number, and
2-9 physical description and the number of the identification of [a
2-10 driver's license number, military identification number,
2-11 identification certificate number, or other official number that
2-12 can identify] the pledgor acceptable under Section 371.174;
2-13 (3) the date of the transaction;
2-14 (4) an identification and complete description of the
2-15 pledged goods, including serial numbers if reasonably available;
2-16 (5) the amount of cash advanced or credit extended to
2-17 the pledgor, designated as "Amount Financed";
2-18 (6) the amount of the pawn service charge, designated
2-19 as "Finance Charge";
2-20 (7) the total amount, consisting of the amount
2-21 financed plus the finance charge, and the NICS fee, if applicable,
2-22 that must be paid to redeem the pledged goods on the maturity date,
2-23 designated as "Total of Payments";
2-24 (8) the "Annual Percentage Rate," computed according
2-25 to regulations issued by the Federal Reserve Board under the Truth
2-26 in Lending Act (15 U.S.C. Section 1601 et seq.), as amended;
2-27 (9) the maturity date of the pawn transaction; [and]
3-1 (10) a statement that:
3-2 (A) the pledgor is not obligated to redeem the
3-3 pledged goods; and
3-4 (B) the pledged goods may be forfeited to the
3-5 pawnbroker on the 61st day after the maturity date; and
3-6 (11) a legible record of the pledgor's thumbprint.
3-7 SECTION 3. Section 371.159(a), Finance Code, is amended to
3-8 read as follows:
3-9 (a) A pawnbroker may not contract for, charge, or receive an
3-10 amount, other than a pawn service charge, as a charge for credit in
3-11 connection with a pawn transaction. A NICS fee is not a charge for
3-12 credit and may be charged to the pledgor before the redemption of a
3-13 pledged firearm in accordance with Section 371.189.
3-14 SECTION 4. Section 371.165, Finance Code, is amended to read
3-15 as follows:
3-16 Sec. 371.165. RETURN OF PLEDGED GOODS. A pawnbroker shall
3-17 return pledged goods to the pledgor on payment of the total amount
3-18 due the pawnbroker in connection with the pawn transaction, unless
3-19 the pledged good is a firearm and the pledgor is denied authority
3-20 to receive the firearm after the NICS check.
3-21 SECTION 5. Section 371.177, Finance Code, is amended to read
3-22 as follows:
3-23 Sec. 371.177. PURCHASE OF USED [PERSONAL] PROPERTY. A
3-24 pawnbroker may not purchase used [personal] property from a person
3-25 other than another pawnbroker unless a record is established that
3-26 contains:
3-27 (1) the seller's name, address, telephone number, and
4-1 physical description and the number of the identification of [a
4-2 driver's license number, military identification number,
4-3 identification certificate number, or other official number that
4-4 can identify] the seller acceptable under Section 371.174;
4-5 (2) a complete description of the property, including
4-6 the serial number, if reasonably available, or other identifying
4-7 characteristics; [and]
4-8 (3) the seller's signed statement that the seller has
4-9 the right to sell the property; and
4-10 (4) a legible record of the seller's thumbprint.
4-11 SECTION 6. Section 371.182, Finance Code, is amended to read
4-12 as follows:
4-13 Sec. 371.182. HOLD PERIOD. A pawnbroker [The commissioner]
4-14 shall hold for not less than 20 days an item of tangible personal
4-15 property purchased or otherwise acquired from the public before the
4-16 property may be modified, changed, sold, or disposed of in any
4-17 manner. The commissioner may reduce the hold period to 10 days on
4-18 written application by a pawnbroker but only if the pawnbroker and
4-19 the chief law enforcement officer have implemented a procedure for
4-20 transmitting reportable electronic data under Section 371.186 or
4-21 371.187. An application for a reduced hold period must be approved
4-22 by the chief law enforcement official before the application is
4-23 submitted to the commissioner by the pawnbroker [designate a
4-24 reasonable hold period during which a pawnbroker may not sell or
4-25 otherwise dispose of an item of goods acquired and offered for sale
4-26 or other disposition by the pawnbroker].
4-27 SECTION 7. Subchapter D, Chapter 371, Finance Code, is
5-1 amended by adding Sections 371.186, 371.187, 371.188, and 371.189
5-2 to read as follows:
5-3 Sec. 371.186. PROVIDING DATA TO LAW ENFORCEMENT OFFICIALS BY
5-4 ELECTRONIC MEANS. (a) In this section, "reportable data" means
5-5 the information required to be recorded by pawnbrokers for pawn
5-6 transactions under Section 371.157 and the information required to
5-7 be recorded by pawnbrokers for purchase transactions under Section
5-8 371.177.
5-9 (b) A chief law enforcement official, by formal action of
5-10 the commissioners court or governing body of the municipality, as
5-11 appropriate, may require reporting pawnbrokers within the
5-12 jurisdiction of the official to provide all reportable data to a
5-13 designated law enforcement official by electronic means as
5-14 described by this section.
5-15 (c) This section applies only to a pawnbroker who, at the
5-16 time of receipt of notice from a chief law enforcement official
5-17 under Subsection (d), possesses and uses the computer equipment
5-18 capable of complying with the requirements for providing reportable
5-19 data under this section and, for the preceding calendar year,
5-20 conducted at least 1,200 pawn transactions. A pawnbroker who
5-21 becomes eligible for application of this section remains eligible
5-22 regardless of the number of pawn transactions conducted in
5-23 subsequent years.
5-24 (d) If the pawnbroker possesses and uses adequate computer
5-25 equipment, the pawnbroker shall, before the end of the six-month
5-26 period after the date of the receipt of the notice from the chief
5-27 law enforcement official, make available all reportable data to the
6-1 designated law enforcement official in a format prescribed by the
6-2 commissioner or as agreed on by the chief law enforcement official
6-3 and the pawnbroker. The data shall be reported on reusable
6-4 diskette media provided by the chief law enforcement official or by
6-5 a secure telephone modem transmission or posted on an electronic
6-6 bulletin board system that is mutually acceptable to the reporting
6-7 pawnbroker and the designated law enforcement official. A
6-8 pawnbroker who does not possess and use adequate computer hardware
6-9 and software shall comply with this section within 180 days of the
6-10 date that the pawnbroker obtains capable computer hardware and
6-11 software. A pawnbroker is not responsible for any delay that
6-12 results from the chief law enforcement official's delay in
6-13 facilitating the receipt of the data.
6-14 (e) The medium by which a pawnbroker provides data to the
6-15 designated law enforcement official must contain the reportable
6-16 data for all transactions during a particular business period of
6-17 not less than one business day and must be made available to be
6-18 picked up by or transmitted to the designated law enforcement
6-19 official by the end of the second business day after the business
6-20 period to which the data relates.
6-21 (f) During a test period beginning on the date a pawnbroker
6-22 begins to provide reportable data under this section, the
6-23 pawnbroker shall also make available paper copies of each of the
6-24 underlying pawn or purchase transaction documents to enable the
6-25 designated law enforcement official to ensure the proper operation
6-26 of the system for providing the data. The test period continues
6-27 until the system is properly operating and transmitting data to the
7-1 satisfaction of the designated law enforcement official.
7-2 (g) A pawnbroker is responsible for training the
7-3 pawnbroker's employees in correct data reporting and shall make
7-4 every effort to provide complete and accurate data to the
7-5 designated law enforcement official. If a pawnbroker or the
7-6 designated law enforcement official discovers an error in the
7-7 provision of reportable data by that pawnbroker, the pawnbroker is
7-8 allowed a period of 30 days after the date of receipt of notice
7-9 from the chief law enforcement official to correct the error. If a
7-10 pawnbroker experiences a computer malfunction, the pawnbroker is
7-11 allowed a period of 30 days in which to correct the malfunction. A
7-12 pawnbroker who makes a bona fide effort to make the appropriate
7-13 system repairs during the periods prescribed by this subsection
7-14 does not violate this section during those periods. During the
7-15 periods of error or malfunction, the pawnbroker shall provide paper
7-16 copies of the transaction tickets to the designated law enforcement
7-17 official and is subject to the standard hold period for property
7-18 required under Section 371.182.
7-19 (h) All reportable data transmitted or furnished to a law
7-20 enforcement official under this chapter is confidential and may be
7-21 used by that official only for official law enforcement purposes.
7-22 Sec. 371.187. ALTERNATIVE RECIPIENTS OF ELECTRONIC DATA. A
7-23 chief law enforcement official, by formal action of the
7-24 commissioners court or governing body of the municipality, as
7-25 appropriate, may require reporting pawnbrokers within the
7-26 jurisdiction of the official to provide all reportable data
7-27 required under Section 351.186 to one alternative law enforcement
8-1 agency, in lieu of transmitting reportable data to the chief law
8-2 enforcement official, for the operation of a regional clearinghouse
8-3 of pawn information. The alternative recipient is considered the
8-4 designated law enforcement official for that jurisdiction for
8-5 reporting purposes only.
8-6 Sec. 371.188. POLICE HOLDS. (a) If any law enforcement
8-7 official has reasonable suspicion to believe that property in the
8-8 possession of a pawnbroker has been misappropriated, the official
8-9 may place a hold order on the property as provided by this section.
8-10 (b) Any law enforcement official may place a hold order
8-11 verbally, but the verbal hold order automatically expires at the
8-12 end of the 10th day after the date of the verbal order if the
8-13 pawnbroker does not receive a written order before that time. The
8-14 term of a written hold order may not exceed 60 days after the
8-15 earlier of the date of the verbal hold order or the date of receipt
8-16 by the pawnbroker of the written hold order. If there is an
8-17 unexpected delay in the investigation relating to the property, the
8-18 law enforcement official may extend the term of the hold order for
8-19 up to 30 days by notifying the pawnbroker in writing. The hold
8-20 order automatically expires on the expiration of the holding period
8-21 and any extension.
8-22 (c) A hold order must specify:
8-23 (1) the name and address of the pawnbroker;
8-24 (2) the name, title, identification number, and
8-25 telephone number of the law enforcement official placing the hold
8-26 order;
8-27 (3) a complete description of the property to be held,
9-1 including model number and serial number, if applicable, and the
9-2 ticket number assigned to the property;
9-3 (4) the name of the person reporting the property to
9-4 be misappropriated;
9-5 (5) the expiration date of the holding period; and
9-6 (6) the name of the law enforcement agency that
9-7 prepared the offense report and the number of the offense report.
9-8 (d) A written hold order may be transmitted to the
9-9 pawnbroker by facsimile machine, mail, or personal delivery.
9-10 (e) Except as provided by this subsection, the pawnbroker
9-11 may not release or dispose of property subject to a hold order
9-12 except under a court order, release authorization from the official
9-13 placing the item on hold, seizure by a law enforcement official, or
9-14 the expiration of the hold period. A pawnbroker shall release
9-15 property to the custody of the law enforcement official on the
9-16 official's request for use in a criminal investigation if the
9-17 official has furnished the pawnbroker with a written receipt for
9-18 the property. The release of the property to the custody of the
9-19 official is not considered to be a waiver or release of the
9-20 pawnbroker's rights or interest in the property. On the earlier of
9-21 the date of the completion of the criminal investigation or the
9-22 expiration of the hold period, the property shall be returned to
9-23 the pawnbroker who released it unless a court order provides for
9-24 other disposition. If other disposition is ordered, the court may
9-25 order the pledgor to pay restitution to the pawnbroker in the
9-26 amount received by the pledgor for the property, plus accrued pawn
9-27 service charges to the date of seizure, in the case of pawn
10-1 transactions, and reasonable attorney's fees and costs.
10-2 Sec. 371.189. NATIONAL INSTANT CRIMINAL BACKGROUND CHECK
10-3 SYSTEM PROCEDURES. (a) Federal law requires a federal firearms
10-4 licensee to request a NICS check before transferring any firearm to
10-5 an unlicensed individual. The amount of the fee for the check may
10-6 be collected directly from the person redeeming the firearm.
10-7 (b) A pawnbroker, at the time a firearm is pledged, shall
10-8 inform the person pledging the firearm that:
10-9 (1) a federally mandated NICS background check is
10-10 required before redemption of the firearm;
10-11 (2) the pledgor is required to pay the fee for the
10-12 NICS background check required by federal law; and
10-13 (3) the pawnbroker is forbidden from returning the
10-14 firearm to the pledgor if the NICS check does not authorize the
10-15 pledgor to receive a firearm.
10-16 SECTION 8. Article 47.01a, Code of Criminal Procedure, is
10-17 amended to read as follows:
10-18 Art. 47.01a. RESTORATION OF PROPERTY TO OWNER [WHEN NO TRIAL
10-19 IS PENDING]. (a) A [If a criminal action relating to allegedly
10-20 stolen property is not pending, a] district judge, county court
10-21 judge, statutory county court judge, or justice of the peace having
10-22 jurisdiction [as a magistrate] in the county in which the property
10-23 is held or a municipal judge having jurisdiction [as a magistrate]
10-24 in the municipality in which the property is being held may hold a
10-25 hearing to determine the right to possession of the property, upon
10-26 the petition of an interested person, a county, a city, or the
10-27 state. [Jurisdiction under this section is based solely on
11-1 jurisdiction as a criminal magistrate under this code and not
11-2 jurisdiction as a civil court. The court shall:]
11-3 [(1) order the property delivered to whoever has the
11-4 superior right to possession, without conditions; or]
11-5 [(2) on the filing of a written motion before trial by
11-6 an attorney representing the state, order the property delivered to
11-7 whoever has the superior right to possession, subject to the
11-8 condition that the property be made available to the prosecuting
11-9 authority should it be needed in future prosecutions; or]
11-10 [(3) order the property awarded to the custody of the
11-11 peace officer, pending resolution of criminal investigations
11-12 regarding the property.]
11-13 (b) If it is shown in a hearing that probable cause exists
11-14 to believe that the property was acquired by theft or by another
11-15 manner that makes its acquisition an offense and that the identity
11-16 of the actual owner of the property cannot be determined, the court
11-17 shall order the peace officer to:
11-18 (1) deliver the property to a government agency for
11-19 official purposes;
11-20 (2) deliver the property to a person authorized by
11-21 Article 18.17 of this code to receive and dispose of the property;
11-22 or
11-23 (3) destroy the property.
11-24 (c) At a hearing under Subsection (a) of this article, any
11-25 interested person may present evidence showing that the property
11-26 was not acquired by theft or another offense or that the person is
11-27 entitled to possess the property. At the hearing, hearsay evidence
12-1 is admissible.
12-2 (d) Venue for a hearing under this article is in any
12-3 justice, county, statutory county, or district court in the county
12-4 in which the property is seized or in any municipal court in any
12-5 municipality in which the property is seized, except that the court
12-6 may transfer venue to a court in another county on the motion of
12-7 any interested party.
12-8 SECTION 9. This Act takes effect September 1, 1999.
12-9 SECTION 10. The importance of this legislation and the
12-10 crowded condition of the calendars in both houses create an
12-11 emergency and an imperative public necessity that the
12-12 constitutional rule requiring bills to be read on three several
12-13 days in each house be suspended, and this rule is hereby suspended.