By Barrientos S.B. No. 963
76R7745 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to law enforcement procedures for electronically obtaining
1-3 data from pawn shops, recording thumbprints on transaction records,
1-4 and holding hearings for recovery of stolen property.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. The Texas Pawnshop Act (Chapter 371, of the Texas
1-7 Finance Code), Section 371.003, is amended to read as follows:
1-8 Sec. 371.003. Definitions. In this chapter:
1-9 (1) "Applicable liabilities" include trade or other accounts
1-10 payable; accrued sales, income, or other taxes; accrued expenses;
1-11 and notes or other payables that are unsecured or secured in whole
1-12 or part by current assets. The term does not include a liability
1-13 secured by assets other than current assets.
1-14 (2) "Chief law enforcement official" means the sheriff of
1-15 the county in which a pawnshop is located or, if a pawnshop is
1-16 located in a municipality, the police chief of the municipality in
1-17 which the pawnshop is located.
1-18 (3) "Commissioner" means the consumer credit commissioner.
1-19 (4) "Current assets" include an investment made in cash,
1-20 bank deposits, merchandise inventory, and loans due from customers,
1-21 excluding the pawn service charge. The term does not include an
1-22 investment made in:
1-23 (a) fixed assets of real estate, furniture, fixtures,
1-24 or equipment;
2-1 (b) stocks, bonds, or other securities; or
2-2 (c) prepaid expenses or other general intangibles.
2-3 (4) "Designated law enforcement official" means any law
2-4 enforcement official or employee working for a recognized law
2-5 enforcement agency, who is designated by the Chief law enforcement
2-6 official over the jurisdiction in which the pawn shop operates, to
2-7 monitor and work with pawn shops.
2-8 (5) "Goods" means tangible personal property.
2-9 (6) "Misappropriated" means stolen, embezzled, converted, or
2-10 otherwise wrongfully appropriated against the will or without the
2-11 effective consent of the rightful owner.
2-12 (7) "Net assets" means the book value of current assets less
2-13 applicable liabilities.
2-14 (8) "Pawnbroker" means a person engaged in the business of:
2-15 (a) lending money on the security of pledged goods; or
2-16 (b) purchasing goods on condition that the goods be
2-17 redeemed or repurchased by the seller for a fixed price within a
2-18 fixed period.
2-19 (9) "Pawnshop" means a location at which or premises in
2-20 which a pawnbroker regularly conducts business.
2-21 (10) "Pawn transaction" means the pledging with a pawnbroker
2-22 of a single item of goods as security for a loan of money.
2-23 (11) "Pledged goods" means goods deposited with or otherwise
2-24 delivered into the possession of a pawnbroker in connection with a
2-25 pawn transaction.
2-26 (12) "Pledgor" means an individual who pledges goods to a
2-27 pawnbroker in connection with a pawn transaction.
3-1 SECTION 2. The Texas Pawnshop Act (Chapter 371, Texas
3-2 Finance Code), is amended by adding Section 371.186 to read as
3-3 follows:
3-4 Sec. 371.186. PROVIDING DATA TO LAW ENFORCEMENT OFFICIALS BY
3-5 ELECTRONIC MEANS. (a) In this section, "reportable data" means
3-6 the information required to be recorded by pawnbrokers for pawn
3-7 transactions under Sections 371.157 of this Act and the
3-8 information required to be recorded by pawnbrokers for purchase
3-9 transactions under Section 371.177 of this Act.
3-10 (b) A Chief law enforcement official may, by formal action
3-11 of the governing body of the county or municipality, require
3-12 reporting pawnbrokers within the jurisdiction of such official to
3-13 provide all reportable data to a designated law enforcement
3-14 official by electronic means, in lieu of the paper documents, as
3-15 described in this section.
3-16 (c) This section applies only to a pawnbroker who, at the
3-17 time of receipt of written notice from a Chief law enforcement
3-18 official under subsection (d) of this section, possesses and uses
3-19 the computer equipment capable of complying with the requirements
3-20 for providing reportable data under this section and, for the most
3-21 recent preceding period of January 1 through December 31, conducted
3-22 at least 1,200 pawn and or purchase transactions. A pawnbroker who
3-23 becomes eligible for application of this section remains eligible
3-24 regardless of the number of pawn and or purchase transactions
3-25 conducted in subsequent periods.
3-26 (d) If the pawnbroker possesses and uses adequate computer
3-27 equipment, the pawnbroker shall, before the end of the six-month
4-1 period after the date of the receipt of the notice from the Chief
4-2 law enforcement official, make available all reportable data to the
4-3 designated law enforcement official in an ASCII text form utilizing
4-4 the Texas uniform reporting format as prescribed by the
4-5 commissioner or a format agreed upon by the Chief law enforcement
4-6 official and the pawnbroker. The data shall be reported on
4-7 reusable diskette media provided by the law enforcement official,
4-8 or on a secure telephone modem transmission, or hosted bulletin
4-9 board system that is mutually acceptable to the reporting
4-10 pawnbroker and the designated law enforcement official. A
4-11 pawnbroker who does not possess and use adequate computer hardware
4-12 and software shall comply with the requirements of this section
4-13 within 180 days from the date the pawnbroker obtains capable
4-14 computer hardware and software. A pawnbroker is not responsible
4-15 for any delay that results from the law enforcement official's
4-16 delay in facilitating the receipt of the data.
4-17 (e) The medium in which a pawnbroker provides data to the
4-18 designated law enforcement official must contain the reportable
4-19 data for all transactions during a particular business period of
4-20 not less than one business day and must be made available to be
4-21 picked up by or transmitted to the designated law enforcement
4-22 official by the end of the second business day after the business
4-23 period to which the data relates.
4-24 (f) During a test period beginning on the date a pawnbroker
4-25 begins to provide reportable data under this section, the
4-26 pawnbroker shall continue to make available copies of each of the
4-27 underlying pawn or purchase transaction documents to enable the
5-1 designated law enforcement official to ensure the proper operation
5-2 of the system for providing the data. The test period shall
5-3 continue until the system is properly operating and transmitting
5-4 data to the satisfaction of the designated law enforcement
5-5 official.
5-6 (g) A pawnbroker is responsible for training the
5-7 pawnbroker's employees in correct data reporting and shall make
5-8 every effort to provide complete and accurate data to the
5-9 designated law enforcement official. If a pawnbroker or the
5-10 designated law enforcement official discovers an error in the
5-11 provision of reportable data by that pawnbroker, the pawnbroker
5-12 shall be allowed a period of 30 days after the date of receipt of
5-13 notice from the law enforcement official to correct the error. If
5-14 a pawnbroker experiences a computer malfunction, the pawnbroker
5-15 shall be allowed a period of 30 days in which to correct the
5-16 malfunction. A pawnbroker who makes a bona fide effort to make the
5-17 appropriate system repairs during the periods prescribed by this
5-18 subsection is not in violation of this section during those
5-19 periods. During those periods of error or malfunction, the
5-20 pawnbroker shall provide paper copies of the transaction tickets to
5-21 the designated law enforcement official and any reduced hold period
5-22 for purchased goods shall revert to the standard hold period for
5-23 property as set out in Section 371.182 of this Act.
5-24 (h) All reportable data transmitted or furnished to any law
5-25 enforcement official under this Act is confidential and may be used
5-26 by that official only for official law enforcement related
5-27 investigations. A pawnbroker may not be held liable for furnishing
6-1 the information required by this Act to a law enforcement agency.
6-2 (i) In order to provide a uniform means of communication
6-3 between the pawnbrokers and law enforcement, a Texas uniform
6-4 reporting format shall be established. A committee shall be formed
6-5 under the direction of the Consumer Credit Commissioner consisting
6-6 of representatives of the pawnbroker industry, law enforcement and
6-7 computer software industry. The committee shall review and
6-8 recommend to the Commissioner, no later than November 1, 1999, a
6-9 format to be designated by the Commissioner as the Texas uniform
6-10 reporting format for use by pawnbrokers transmitting reportable
6-11 data to law enforcement agencies.
6-12 SECTION 3. The Texas Pawnshop Act (Chapter 371, Texas
6-13 Finance Code), is amended by adding Section 371.187 to read as
6-14 follows:
6-15 Sec. 371.187. ALTERNATIVE RECIPIENTS OF ELECTRONIC DATA. A
6-16 Chief law enforcement official may, by formal action of the
6-17 governing body of the county or municipality, require pawnbrokers
6-18 within the jurisdiction of such official to provide all reportable
6-19 data, pursuant to Section 351.186, to an alternative law
6-20 enforcement agency (but not more than one such alternative
6-21 recipient) in lieu of transmitting reportable data to that Chief
6-22 law enforcement official, for the purpose of operating a regional
6-23 clearinghouse of the reportable data. That alternative recipient
6-24 shall be known as the designated law enforcement official for that
6-25 jurisdiction for reporting purposes only.
6-26 SECTION 4. The Texas Pawnshop Act (Chapter 371, Texas
6-27 Finance Code), is amended by adding Section 371.188 to read as
7-1 follows:
7-2 Sec. 371.188. POLICE HOLDS. (a) If any law enforcement
7-3 official has reasonable suspicion to believe that property in the
7-4 possession of a pawnbroker has been misappropriated, the official
7-5 may place a hold order on the property as provided by this section.
7-6 (b) Any law enforcement official may place a hold order
7-7 verbally, but if the pawnbroker does not receive a written order
7-8 within 10 days after the date of the verbal order, the verbal hold
7-9 order automatically expires. The term of a written hold order may
7-10 not exceed 60 days from the earlier of the date of the verbal hold
7-11 order or the date of receipt by the pawnbroker of the written hold
7-12 order. If there is an unexpected delay in the investigation
7-13 relating to the property, the law enforcement official may extend
7-14 the term of the hold order for up to an additional 30 days by
7-15 notifying the pawnbroker in writing. The hold order shall
7-16 automatically expire upon expiration of the hold period and/or
7-17 extension.
7-18 (c) A hold order must specify:
7-19 (1) the name and address of the pawnbroker;
7-20 (2) the name, title, identification number and phone
7-21 number of the law enforcement official placing the hold order;
7-22 (3) a complete description of the property to be held,
7-23 including model number and serial number, if applicable, and the
7-24 ticket number assigned to the property;
7-25 (4) the name of the person reporting the property to
7-26 be misappropriated, if known;
7-27 (5) the expiration date of the holding period; and
8-1 (6) the name of the law enforcement agency that
8-2 prepared the investigative report and the number of the report the
8-3 investigation is being based upon.
8-4 (d) A written hold order may be transmitted to the
8-5 pawnbroker by facsimile machine, mail, or personally delivered.
8-6 (e) Except as provided by this subsection, the pawnbroker
8-7 may not release or dispose of property subject to a hold order
8-8 except under a search warrant, court order, release authorization
8-9 from the official placing the item on hold, seizure by a law
8-10 enforcement official, or the expiration of the hold period. A
8-11 pawnbroker shall release property to the custody of a law
8-12 enforcement official on the official's request for use in a
8-13 criminal investigation if the official has furnished the pawnbroker
8-14 with a written receipt for the property. The release of the
8-15 property to the custody of the official is not considered to be a
8-16 waiver or release of the pawnbroker's rights or interest in the
8-17 property. On the earlier of the completion of the criminal
8-18 investigation or the expiration of the hold period, the property
8-19 shall be returned to the pawnbroker who released it unless a court
8-20 order provides for other disposition. If other disposition is
8-21 ordered, the court may order the pledgor or seller to pay
8-22 restitution to the pawnbroker in the amount received by the pledgor
8-23 or seller for the property, plus accrued pawn service charges to
8-24 the date of seizure, in the case of pawn transactions, and
8-25 reasonable attorney's fees and costs.
8-26 SECTION 5. The Texas Pawnshop Act (Chapter 371, Texas
8-27 Finance Code), Section 371.182 is amended to read as follows:
9-1 Sec. 371.182. HOLD PERIOD. A pawnbroker [The commissioner]
9-2 shall [designate a reasonable] hold for not less than 20 calendar
9-3 days [period before a sale or other disposition of] an item of
9-4 tangible personal property purchased or otherwise acquired from the
9-5 general public before the property may be modified, changed, sold,
9-6 or disposed of in any manner [by a pawnbroker and offered for sale
9-7 or other disposition by the pawnbroker]. The Commissioner may
9-8 provide for a hold period of 10 days upon written application by a
9-9 pawnbroker. A reduction in the hold period may be granted only if
9-10 the pawnbroker and the chief law enforcement officer have
9-11 implemented a procedure for transmitting reportable electronic data
9-12 under Sections 371.186 or 371.187 of this Act. An application for
9-13 a shorter hold period must be approved by the Chief law enforcement
9-14 official before the application is submitted to the Commissioner by
9-15 the pawnbroker.
9-16 SECTION 6. The Texas Pawnshop Act (Chapter 371, Texas
9-17 Finance Code), Section 371.157, is amended to read as follows:
9-18 Sec. 371.157. Pawn Ticket. (a) A pawnbroker, at the time a
9-19 pawn transaction is entered, shall deliver to the pledgor a pawn
9-20 ticket or other memorandum that clearly shows:
9-21 (1) the name and address of the pawnshop;
9-22 (2) the pledgor's name, address, telephone number, and
9-23 physical description and [a driver's license number, military
9-24 identification number, identification certificate number, or other
9-25 official number that can identify the pledgor] the number of the
9-26 unexpired identification of the pledgor as required in section
9-27 371.174;
10-1 (3) the date of the transaction;
10-2 (4) an identification and complete description of the
10-3 pledged goods, including serial numbers if reasonably available;
10-4 (5) the amount of cash advanced or credit extended to
10-5 the pledgor, designated as "Amount Financed";
10-6 (6) the amount of the pawn service charge, designated
10-7 as "Finance Charge";
10-8 (7) the total amount, consisting of the amount
10-9 financed plus the finance charge, that must be paid to redeem the
10-10 pledged goods on the maturity date, designated as "Total of
10-11 Payments";
10-12 (8) the "Annual Percentage Rate," computed according
10-13 to regulations issued by the Federal Reserve Board under the Truth
10-14 in lending Act (15 U.S.C. Section 1601 et seq.), as amended;
10-15 (9) the maturity date of the pawn transaction; and
10-16 (10) a statement that:
10-17 (A) the pledgor is not obligated to redeem the
10-18 pledged goods; and
10-19 (B) the pledged goods may be forfeited to the
10-20 pawnbroker on the 61st day after the maturity date.
10-21 (b) The pawnbroker shall record a legible thumbprint of the
10-22 pledgor on the forth part of the pawn ticket or that part
10-23 numerically filed and retained by the pawnbroker.
10-24 SECTION 7. The Texas Pawnshop Act (Chapter 371, Texas
10-25 Finance Code), Section 371.177, is amended to read as follows:
10-26 Sec. 371.177. Purchase of Used Personal Property. (a) A
10-27 pawnbroker may not purchase property from a person other than
11-1 another pawnbroker or authorized vendor unless a record is
11-2 established that contains:
11-3 (1) the seller's name, address, telephone number, and
11-4 physical description and [a driver's license number, military
11-5 identification number, identification certificate number, or other
11-6 official number that can identify the seller] the number of the
11-7 unexpired identification of the seller as required in section
11-8 371.174;
11-9 (2) a complete description of the property, including
11-10 the serial number, if reasonably available, or other identifying
11-11 characteristics;
11-12 (3) the seller's signed statement that the seller has
11-13 the right to sell the property.
11-14 (b) The pawnbroker shall record a legible thumbprint of the
11-15 seller on the part of the purchase ticket numerically filed and
11-16 retained by the pawnbroker.
11-17 SECTION 8. Chapter 47, Texas Code of Criminal Procedure,
11-18 Article 47.01a is amended to read as follows:
11-19 Art. 47.01a. RESTORING [WHEN NO TRIAL IS PENDING] PROPERTY
11-20 TO OWNER. (a) [If a criminal action relating to stolen property
11-21 is not pending, a] A district judge, county court judge, statutory
11-22 county court judge, or justice of the peace having jurisdiction in
11-23 the county in which the property is being held or a municipal judge
11-24 having jurisdiction in the municipality in which the property is
11-25 being held may hold a hearing to determine the right to possession
11-26 of the property, upon the petition of an interested person, a
11-27 county, a city, or the state.
12-1 SECTION 9. This Act takes effect September 1, 1999.
12-2 SECTION 10. The importance of this legislation and the
12-3 crowded condition of the calendars in both houses create an
12-4 emergency and an imperative public necessity that the
12-5 constitutional rule requiring bills to be read on three several
12-6 days in each house be suspended, and this rule is hereby suspended.