By Duncan                                              S.B. No. 626
         77R2449 KEL-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to liens on certain property related to certain criminal
 1-3     offenses and the effect of forfeiture of that property.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Article 59.01, Code of Criminal Procedure, is
 1-6     amended by adding Subdivisions (9)-(11) to read as follows:
 1-7                 (9)  "Depository account" means the obligation of a
 1-8     regulated financial institution to pay the account owner under a
 1-9     written agreement, including a checking account, savings account,
1-10     money market account, time deposit, NOW account, or certificate of
1-11     deposit.
1-12                 (10)  "Primary state or federal financial institution
1-13     regulator" means the state or federal regulatory agency that
1-14     chartered and comprehensively regulates a regulated financial
1-15     institution.
1-16                 (11)  "Regulated financial institution" means a
1-17     depository institution chartered by a state or federal government,
1-18     the deposits of which are insured by the Federal Deposit Insurance
1-19     Corporation or the National Credit Union Administration.
1-20           SECTION 2. Articles 59.02(c)-(g), Code of Criminal Procedure,
1-21     are amended to read as follows:
1-22           (c)  An owner or interest holder's interest in property may
1-23     not be forfeited under this chapter if the owner or interest
1-24     holder:
 2-1                 (1)  acquired and perfected the interest before the
 2-2     seizure [or during the act or omission giving rise to forfeiture]
 2-3     or, if the property is real property, [he] acquired an ownership
 2-4     interest, security interest, or lien interest before a lis pendens
 2-5     notice was filed under Article 59.04(g) of this code; and
 2-6                 (2)  did not know or should not reasonably have known
 2-7     of the act or omission giving rise to the forfeiture or that it was
 2-8     likely to occur at or before the time of acquiring and perfecting
 2-9     the interest or, if the property is real property, at or before the
2-10     time of acquiring the ownership interest, security interest, or
2-11     lien interest.
2-12           (d)  Notwithstanding any other law, if property is seized
2-13     from the possession of an interest holder who asserts a possessory
2-14     lien interest in the property under applicable law, the interest
2-15     holder's lien remains in effect during the pendency of proceedings
2-16     under this chapter as if possession of the property had remained
2-17     with the interest holder.
2-18           (e)  On motion by any party or on the motion of the court,
2-19     after notice in the manner provided by Article 59.04 of this code
2-20     to all known owners and interest holders of property subject to
2-21     forfeiture under this chapter, and after a hearing on the matter,
2-22     the court may make appropriate orders to preserve and maintain the
2-23     value of the property until a final disposition of the property is
2-24     made under this chapter, including the sale of the property if that
2-25     is the only method by which the value of the property may be
2-26     preserved until final disposition.
2-27           (f) [(e)]  Any property that is contraband and has been
 3-1     seized by the institutional division of the Texas Department of
 3-2     Criminal Justice shall be forfeited to the institutional division
 3-3     under the same rules and conditions as for other forfeitures.
 3-4           (g) [(f)]  An individual, firm, corporation, or other entity
 3-5     insured under a policy of title insurance may not assert a claim or
 3-6     cause of action on or because of the policy if the claim or cause
 3-7     of action is based on forfeiture under this chapter and, at or
 3-8     before the time of acquiring the ownership of real property,
 3-9     security interest in real property, or lien interest against real
3-10     property, the insured knew or reasonably should have known of the
3-11     act or omission giving rise to the forfeiture or that the act or
3-12     omission was likely to occur.
3-13           (h) [(g)]  The forfeiture provisions of this chapter apply to
3-14     contraband as defined by Article 59.01(2)(B)(iv) of this code only
3-15     in a municipality with a population of 250,000 or more.
3-16           SECTION 3. Article 59.03(a), Code of Criminal Procedure, is
3-17     amended to read as follows:
3-18           (a)  Property subject to forfeiture under this chapter, other
3-19     than property described by  Article 59.12 of this code, may be
3-20     seized by any peace officer under authority of a search warrant.
3-21           SECTION 4. Article 59.04(b), Code of Criminal Procedure, is
3-22     amended to read as follows:
3-23           (b)  A forfeiture proceeding commences under this chapter
3-24     when the attorney representing the state files a notice of the
3-25     seizure and intended forfeiture in the name of the state with the
3-26     clerk of the district court in the county in which the seizure is
3-27     made.  The attorney representing the state must attach to the
 4-1     notice the peace officer's sworn statement under Article 59.03 of
 4-2     this code or, if the property has been seized under Article 59.12
 4-3     of this code, the statement of the terms and amount of the
 4-4     depository account or inventory of assets provided by the regulated
 4-5     financial institution to the attorney representing the state.
 4-6     Except as provided by Subsection (c) of this article, the attorney
 4-7     representing the state shall cause certified copies of the notice
 4-8     to be served on the following persons in the same manner as
 4-9     provided for the service of process by citation in civil cases:
4-10                 (1)  the owner of the property; and
4-11                 (2)  any interest holder in the property.
4-12           SECTION 5. Chapter 59, Code of Criminal Procedure, is amended
4-13     by adding Articles 59.12-59.14 to read as follows:
4-14           Art. 59.12.  SEIZURE OF ACCOUNTS AND ASSETS AT REGULATED
4-15     FINANCIAL INSTITUTION. (a)  This article applies to property
4-16     consisting of a depository account in a regulated financial
4-17     institution or assets held by a regulated financial institution as
4-18     security for an obligation owed to the regulated financial
4-19     institution.
4-20           (b)  A regulated financial institution is not required to pay
4-21     an account or tender assets held as security for an obligation owed
4-22     to the institution until the time has expired for an appeal from a
4-23     decision of the court relating to the forfeiture of accounts or
4-24     assets under Article 59.05.  The account or assets are
4-25     constructively seized at the time a seizure warrant issued under
4-26     Chapter 18 is served on the regulated financial institution.  The
4-27     regulated financial institution shall preserve and maintain the
 5-1     account or assets pending entry of a final judgment of forfeiture.
 5-2           (c)  Immediately on service of the seizure warrant, the
 5-3     regulated financial institution shall take action as necessary to
 5-4     freeze the account or assets and shall provide evidence of the
 5-5     terms and amount of the account or a detailed inventory of the
 5-6     assets to the attorney representing the state.  Except as otherwise
 5-7     provided by this article, a transaction involving an account or
 5-8     assets, other than the deposit or reinvestment of interest,
 5-9     dividends, or other normally recurring payments on the account or
5-10     assets that do not involve distribution of proceeds to the owner,
5-11     is not authorized unless approved by the court that issued the
5-12     seizure warrant or, if a forfeiture action has been instituted, the
5-13     court in which that action is pending.
5-14           (d)  Notwithstanding any other provision of this chapter,
5-15     assets subject to diminution in value may be liquidated without
5-16     court action by agreement between the regulated financial
5-17     institution and the attorney representing the state.  If agreement
5-18     cannot be reached, the court, on motion, may order liquidation if
5-19     liquidation is consistent with the terms of the security agreement
5-20     between the regulated financial institution and the property owner.
5-21           (e)  Any accrual to the value of the account or assets during
5-22     the pendency of the forfeiture proceedings is subject to the
5-23     procedures for the disbursement of interest under Article 59.08.
5-24           (f)  If the regulated financial institution fails to comply
5-25     with the obligations imposed by this article to freeze and preserve
5-26     the account or assets constructively seized, and as a result cannot
5-27     comply with the court's forfeiture order, the court may order the
 6-1     regulated financial institution to pay damages in an amount not to
 6-2     exceed two times the actual loss caused by the regulated financial
 6-3     institution's failure to comply.
 6-4           (g)  A regulated financial institution that complies with
 6-5     this article is not liable in damages to the owner of a seized
 6-6     account or asset.
 6-7           (h)  This article does not impair the right of the state to
 6-8     obtain possession of physical evidence.
 6-9           Art. 59.13.  DISCLOSURE OF INFORMATION RELATING TO ACCOUNTS
6-10     AND ASSETS AT REGULATED FINANCIAL INSTITUTION. (a)  The attorney
6-11     representing the state may disclose information to the primary
6-12     state or federal financial institution regulator, including grand
6-13     jury information or otherwise confidential information, relating to
6-14     any action contemplated or brought under this chapter that involves
6-15     property consisting of a depository account in a regulated
6-16     financial institution or assets held by a regulated financial
6-17     institution as security for an obligation owed to a regulated
6-18     financial institution.
6-19           (b)  A primary state or federal financial institution
6-20     regulator shall keep confidential any information provided by the
6-21     attorney representing the state under Subsection (a).  The sharing
6-22     of information under Subsection (a)  is not considered a waiver of
6-23     any privilege or claim of confidentiality.
6-24           Art. 59.14.  NOTICE TO PRIMARY STATE AND FEDERAL FINANCIAL
6-25     INSTITUTION REGULATORS. (a)  The attorney representing the state
6-26     shall notify the primary state or federal financial institution
6-27     regulator before taking any action under this chapter that may have
 7-1     a substantial adverse effect on a regulated financial institution.
 7-2           (b)  An action may have a substantial adverse effect for
 7-3     purposes of Subsection (a)  if the amount involved is the lesser of
 7-4     $1 million or an amount equal to one-half percent of the regulated
 7-5     financial institution's total assets as determined by its most
 7-6     recently published quarterly report of condition.
 7-7           (c)  A primary state or federal financial institution
 7-8     regulator shall keep confidential any information provided by the
 7-9     attorney representing the state under Subsection (a).
7-10           (d)  The provision of notice under Subsection (a)  is not
7-11     considered a waiver of any privilege or claim of confidentiality.
7-12           SECTION 6. Section 34.02, Penal Code, is amended by adding
7-13     Subsection (f) to read as follows:
7-14           (f)  It is an exception to the application of this section
7-15     that the transaction was, under Chapter 62, Code of Criminal
7-16     Procedure, an assertion by an owner or interest holder of interest
7-17     in seized property or opposition by an owner or interest holder to
7-18     the nature of property as proceeds of criminal activity or
7-19     contraband.
7-20           SECTION 7. (a)  The change in law made by Sections 1-5 of
7-21     this Act applies only to a forfeiture proceeding that commences on
7-22     or after the effective date of this Act.  A forfeiture proceeding
7-23     that commences before the effective date of this Act is covered by
7-24     the law in effect when the proceeding commenced, and the former law
7-25     is continued in effect for that purpose.
7-26           (b)  The change in law made by Section 6 of this Act applies
7-27     only to an offense committed before the effective date of this Act.
 8-1     For purposes of this subsection, an offense is committed before the
 8-2     effective date of this Act if any element of the offense occurs
 8-3     before that date.
 8-4           SECTION 8. This Act takes effect September 1, 2001.