HBA-AMW H.B. 2696 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2696 By: Hinojosa Criminal Jurisprudence 4/2/2001 Introduced BACKGROUND AND PURPOSE Recently, several states, including Texas, have been examining the use of criminal asset forfeiture as a tool to further discourage and impede criminal activities. Problems found with the existing forfeiture system include the lack of adequate enforcement of auditing requirements, the availability of more lenient federal forfeiture remedies, and reports of seizures of cash without proper cause. House Bill 2696 modifies current asset forfeiture provisions and procedures. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS House Bill 2696 amends the Code of Criminal Procedure to modify provisions relating to civil asset forfeiture. The bill excludes from the definition of "contraband" proceeds or property acquired from the commission of certain felonies that is valued less than $10,000 and in personal possession at the time of seizure. The bill provides that for any property which is contraband by virtue of a temporary conveyance, and which is contraband in related offenses three separate times in any two-year period, the transferor cannot offer the defense that the transferor did not know or should not reasonably have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest or, if the property is real property, at or before the time of acquiring the ownership interest, security interest, or lien interest. The bill provides that if an interested party is also a defendant in the underlying criminal action, and counsel is provided by the state, the counsel can be available for the forfeiture action with the attorney's remuneration to follow the standards in criminal indigent representation. The bill provides that no forfeiture proceeding shall be brought more than one year after trial or a plea of guilty or nolo contendre, or if none of the preceding conditions are met, two years after the date of the illegal activities alleged. The bill removes the provision that in a forfeiture hearing a presumption can be rebutted by evidence that the owner or interest holder knew or should have known that the property was contraband and adds that evidence of an acquittal raises an unrebuttable presumption that the property or interest that is the subject of the hearing is nonforfeitable. The bill prohibits a final judgment on a forfeiture action from being entered until after the resolution of all criminal matters associated with the forfeited property, or, for cases in which no criminal charges are pursued, one year. The bill prohibits contraband from being directed though the federal forfeiture procedures unless a judge has found more than incidental federal involvement. The bill requires the attorney general to notify the comptroller of public accounts (comptroller) if the audit of a law enforcement agency or attorney of the state who receives proceeds from contraband is not received by the attorney general by the 30th day after the date on which the annual period that is the subject of the audit ends and provides that the comptroller will then audit the defaulting agency or office. The bill requires the costs to be deducted from the proceeds and property, not to exceed the value of the proceeds and property, at the conclusion of the audit. The bill requires any remaining proceeds and property to enter into a fund to be administered by the governor's office and prohibits the funds from being directed to the defaulting agency or office. EFFECTIVE DATE September 1, 2001. If the provisions regarding audits of an agency or office that receives profits from contraband property fall outside of the agency's or office's annual period, these provisions take effect at the beginning of the next annual period subsequent to September 1, 2001.