SRC-JBJ C.S.S.B. 626 77(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 626
77R9651 GWK-FBy: Duncan
Jurisprudence
3/13/2001
Committee Report (Substituted)


DIGEST AND PURPOSE 

Under current Texas law, the holder of a bona fide security interest in
property other than real property may lose that lien or security to
forfeiture even though the lienholder is innocent, not knowing or having
reason to suspect that the property constitutes contraband.  C.S.S.B. 626
addresses several problems that may arise in the seizure of accounts held
at banks and assets that have been pledged to secure loans made by banks. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency.    

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 59.01, Code of Criminal Procedure, by adding
Subdivisions (9)(11), to define "depository account," "primary state or
federal financial institution regulator," and "regulated financial
institution." 

SECTION 2.  Amends Articles 59.02(c)-(g), Code of Criminal Procedure, to
prohibit an owner or interest holder's interest in property from being
forfeited under this chapter if the owner or interest holder proves by a
preponderance of the evidence that certain specific conditions were met,
including that the owner or interest holder, after the act or omission
giving rise to the forfeiture, but before the seizure of the property, and
only if the owner or interest holder was, at the time that the interest in
the property was acquired, an owner or interest holder for value, and was
without reasonable cause to believe that the property was contraband and
did not purposefully avoid learning that the property was contraband.
Provides that if property is seized from the possession of an owner or
interest holder who asserts an ownership interest, security interest, or
lien interest in the property under applicable law, notwithstanding any
other law,  the owner or interest holder's rights remain in effect during
the pendency of proceedings under this chapter as if possession of the
property had remained with the owner or interest holder.   

SECTION 3.  Amends Article 59.03, Code of Criminal Procedure, by amending
Subsection (a) and adding Subsection (d), to authorize property subject to
forfeiture under this chapter, other than property described by Article
59.12 of this code, to be seized by any peace officer under authority of a
search warrant.  Authorizes a peace officer who intentionally subjects
another to seizure that the peace officer knows is unlawful to be held
criminally liable under Section 39.03 (Official Oppression), Penal Code, or
any other law of this state. 

SECTION 4.  Amends Article 59.04(b), Code of Criminal Procedure, to require
the attorney representing the state to attach to the notice the peace
officer's sworn statement under Article 59.03 of this code or, if the
property has been seized under Article 59.12(b), the statement of the terms
and amount of the depository account or inventory of assets provided by the
regulated financial institution to the peace officer executing the warrant
in the manner described by Article 59.12(b). 

SECTION 5.  Amends Chapter 59, Code of Criminal Procedure, by adding
Articles 59.12-59.14, as follows: 

 Art. 59.12.  SEIZURE OF ACCOUNTS AND ASSETS AT REGULATED FINANCIAL
INSTITUTION.  (a)  Provides that this article applies to property
consisting of a depository account or assets in a regulated financial
institution. 

(b)  Authorizes a regulated financial institution, at the time a seizure
warrant issued under Chapter 18 is served on the institution, to take
either of two enumerated actions. 

(c)  Requires the regulated financial institution, immediately on service
of the seizure warrant, to take action as necessary to segregate the
account or assets and to provide evidence, certified by an officer of the
institution, of the terms and amount of the account or a detailed inventory
of assets to the peace officer serving the warrant.  Provides that a
transaction involving an account or assets, other than the deposit or
reinvestment of interest and except as otherwise provided by this article,
or other normally recurring payments on the account or assets that do not
involve distribution of proceeds to the owner is not authorized unless
approved by the court that issued the seizure warrant or, if a forfeiture
action has been instituted, the court in which that action is pending. 

(d)  Provides that any accrual to the value of the account or assets during
the pendency of the forfeiture proceedings is subject to the procedures for
the disbursement of interest under Article 59.08. 

(e)  Requires the court, if the regulated financial institution fails to
release the depository account or assets to a peace officer pursuant to a
seizure warrant or transfer the account or assets as required by Subsection
(b), and as a result cannot comply with the court's forfeiture order, to
order the regulated financial institution and its culpable officers,
agents, or employees to pay actual damages, attorney's fees, and court
costs incurred as a result of the institution's failure to comply, and
authorizes the court to find the regulated financial institution and its
culpable officers, agents, or employees in contempt. 

(f)  Provides that a regulated financial institution that complies with
this article is not liable in damages because of the compliance. 

(g)  Provides that this article does not impair the right of the state to
obtain possession of physical evidence or to seize a depository account or
other assets for purposes other than forfeiture under this chapter, or
waive criminal remedies available under other law. 

Art. 59.13.  DISCLOSURE OF INFORMATION RELATING TO ACCOUNTS AND ASSETS AT
REGULATED FINANCIAL INSTITUTION.  (a)  Authorizes the attorney representing
the state to disclose information to the primary state or federal financial
institution regulator, including grand jury information or otherwise
confidential information, relating to any action contemplated or brought
under this chapter that involves property consisting of a depository
account in a regulated financial institution or assets held by a regulated
financial institution as security for an obligation owed to a regulated
financial institution.  Provides that an attorney representing the state
who discloses information as permitted by this subsection is not subject to
contempt under Article 20.02 for that disclosure. 

(b)  Requires a primary state or federal financial institution regulator to
keep confidential any information provided by the attorney representing the
state under Subsection (a).  Provides that the sharing of information under
Subsection (a) by a representative of the state is not considered a waiver
by the state of any privilege or claim of confidentiality. 

(c)  Provides that a regulator described by Subsection (b) commits an
offense if the regulator knowingly discloses information in violation of
this article.  Provides  that an offense under this subsection is
punishable by confinement in jail for a period not to exceed 30 days, a
fine not to exceed $500, or both such confinement and fine. 

Art. 59.14.  NOTICE TO PRIMARY STATE AND FEDERAL FINANCIAL INSTITUTION
REGULATORS.  (a)  Requires the attorney representing the state, before
taking any action under this chapter that implicates a potentially culpable
officer or director of a regulated financial institution, to notify the
banking commissioner, who is required to then notify the appropriate state
or federal financial institution regulator. 

(b)  Requires a state or federal financial institution regulator to keep
confidential any information provided by the attorney representing the
state under Subsection (a). 
  
(c)  Provides that a regulator described by Subsection (b) commits an
offense if the regulator knowingly discloses information in violation of
this article.  Provides that an offense under this subsection is punishable
by confinement in jail for a period not to exceed 30 days, a fine not to
exceed $500, or both such confinement and fine. 

(d)  Provides that the provision of notice under Subsection (a) is not
considered a waiver of any privilege or claim of confidentiality. 

SECTION 6.  Makes application of this Act prospective.

SECTION 7.  Effective date: September 1, 2001.

SUMMARY OF COMMITTEE CHANGES

Differs from the original by amending the relating clause to include
provisions for penalties. 

SECTION 1.  No change.

SECTION 2.  Differs from the original by amending provisions pertaining to
the prohibition, under certain conditions, of interest in property being
forfeited.  Amends previously proposed language regarding a lien interest
during the pendency of proceedings. 

SECTION 3.  Differs from the original by adding Subsection (d) pertaining
to a peace officer's potential criminal liability under Section 39.03
(Official Oppression), Penal Code. 

SECTION 4.  Differs from the original to replace a reference to certain
documents received by the attorney representing the state with a reference
to those documents received by the peace officer executing the warrant in a
certain manner. 

SECTION 5.  Differs from the original by amending provisions pertaining to
the procedures for seizure of accounts and assets at regulated financial
institutions.  Deletes previously proposed Subsection (d) pertaining to
liquidation of assets without court action.  Adds provisions pertaining to
an attorney representing the state who discloses certain information not
being subject to contempt for that disclosure.  Adds provisions providing
for an offense by a regulator if the regulator knowingly discloses
information in violation of this article.  Amends provisions pertaining to
notification before certain actions are taken.   Deletes previously
proposed Subsection (b) pertaining to a limitation of the effect of an
action.  Adds provisions providing for an offense by a regulator knowingly
discloses information in violation of this article. 

Deletes previously proposed SECTION 6 which amended Section 34.03, Penal
Code.   
 
Redesignates previously proposed SECTIONS 7 and 8 as SECTION 6 and 7, as
follows: 

SECTION 6.  Differs from the original by making the entire Act prospective.

SECTION 7.  Effective date: No change.