1-1     By:  Duncan                                            S.B. No. 626
 1-2           (In the Senate - Filed February 9, 2001; February 12, 2001,
 1-3     read first time and referred to Committee on Jurisprudence;
 1-4     March 13, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 6, Nays 0; March 13, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 626                   By:  Duncan
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to liens on certain property related to certain criminal
1-11     offenses and the effect of forfeiture of that property; providing
1-12     penalties.
1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14           SECTION 1.  Article 59.01, Code of Criminal Procedure, is
1-15     amended by adding Subdivisions (9), (10), and (11) to read as
1-16     follows:
1-17                 (9)  "Depository account" means the obligation of a
1-18     regulated financial institution to pay the account owner under a
1-19     written agreement, including a checking account, savings account,
1-20     money market account, time deposit, NOW account, or certificate of
1-21     deposit.
1-22                 (10)  "Primary state or federal financial institution
1-23     regulator" means the state or federal regulatory agency that
1-24     chartered and comprehensively regulates a regulated financial
1-25     institution.
1-26                 (11)  "Regulated financial institution" means a
1-27     depository institution chartered by a state or federal government,
1-28     the deposits of which are insured by the Federal Deposit Insurance
1-29     Corporation or the National Credit Union Administration.
1-30           SECTION 2.  Subsections (c) through (g), Article 59.02, Code
1-31     of Criminal Procedure, are amended to read as follows:
1-32           (c)  An owner or interest holder's interest in property may
1-33     not be forfeited under this chapter if the owner or interest holder
1-34     proves by a preponderance of the evidence that the owner or
1-35     interest holder[:]
1-36                 [(1)]  acquired and perfected the interest:
1-37                 (1)  before or during the act or omission giving rise
1-38     to forfeiture or, if the property is real property, he acquired an
1-39     ownership interest, security interest, or lien interest before a
1-40     lis pendens notice was filed under Article 59.04(g) of this code[;]
1-41     and
1-42                 [(2)]  did not know or should not reasonably have known
1-43     of the act or omission giving rise to the forfeiture or that it was
1-44     likely to occur at or before the time of acquiring and perfecting
1-45     the interest or, if the property is real property, at or before the
1-46     time of acquiring the ownership interest, security interest, or
1-47     lien interest; or
1-48                 (2)  after the act or omission giving rise to the
1-49     forfeiture, but before the seizure of the property, and only if the
1-50     owner or interest holder:
1-51                       (A)  was, at the time that the interest in the
1-52     property was acquired, an owner or interest holder for value; and
1-53                       (B)  was without reasonable cause to believe that
1-54     the property was contraband and did not purposefully avoid learning
1-55     that the property was contraband.
1-56           (d)  Notwithstanding any other law, if property is seized
1-57     from the possession of an owner or interest holder who asserts an
1-58     ownership interest, security interest, or lien interest in the
1-59     property under applicable law, the owner or interest holder's
1-60     rights remain in effect during the pendency of proceedings under
1-61     this chapter as if possession of the property had remained with the
1-62     owner or interest holder.
1-63           (e)  On motion by any party or on the motion of the court,
1-64     after notice in the manner provided by Article 59.04 of this code
 2-1     to all known owners and interest holders of property subject to
 2-2     forfeiture under this chapter, and after a hearing on the matter,
 2-3     the court may make appropriate orders to preserve and maintain the
 2-4     value of the property until a final disposition of the property is
 2-5     made under this chapter, including the sale of the property if that
 2-6     is the only method by which the value of the property may be
 2-7     preserved until final disposition.
 2-8           (f) [(e)]  Any property that is contraband and has been
 2-9     seized by the institutional division of the Texas Department of
2-10     Criminal Justice shall be forfeited to the institutional division
2-11     under the same rules and conditions as for other forfeitures.
2-12           (g) [(f)]  An individual, firm, corporation, or other entity
2-13     insured under a policy of title insurance may not assert a claim or
2-14     cause of action on or because of the policy if the claim or cause
2-15     of action is based on forfeiture under this chapter and, at or
2-16     before the time of acquiring the ownership of real property,
2-17     security interest in real property, or lien interest against real
2-18     property, the insured knew or reasonably should have known of the
2-19     act or omission giving rise to the forfeiture or that the act or
2-20     omission was likely to occur.
2-21           (h) [(g)]  The forfeiture provisions of this chapter apply to
2-22     contraband as defined by Article 59.01(2)(B)(iv) of this code only
2-23     in a municipality with a population of 250,000 or more.
2-24           SECTION 3.  Article 59.03, Code of Criminal Procedure, is
2-25     amended by amending Subsection (a) and adding Subsection (d) to
2-26     read as follows:
2-27           (a)  Property subject to forfeiture under this chapter, other
2-28     than property described by Article 59.12 of this code, may be
2-29     seized by any peace officer under authority of a search warrant.
2-30           (d)  A peace officer who intentionally subjects another to
2-31     seizure that the peace officer knows is unlawful may be criminally
2-32     liable under Section 39.03, Penal Code, or any other law of this
2-33     state.
2-34           SECTION 4.  Subsection (b), Article 59.04, Code of Criminal
2-35     Procedure, is amended to read as follows:
2-36           (b)  A forfeiture proceeding commences under this chapter
2-37     when the attorney representing the state files a notice of the
2-38     seizure and intended forfeiture in the name of the state with the
2-39     clerk of the district court in the county in which the seizure is
2-40     made.  The attorney representing the state must attach to the
2-41     notice the peace officer's sworn statement under Article 59.03 of
2-42     this code or, if the property has been seized under Article
2-43     59.12(b) of this code, the statement of the terms and amount of the
2-44     depository account or inventory of assets provided by the regulated
2-45     financial institution to the peace officer executing the warrant in
2-46     the manner described by Article 59.12(b) of this code.  Except as
2-47     provided by Subsection (c) of this article, the attorney
2-48     representing the state shall cause certified copies of the notice
2-49     to be served on the following persons in the same manner as
2-50     provided for the service of process by citation in civil cases:
2-51                 (1)  the owner of the property; and
2-52                 (2)  any interest holder in the property.
2-53           SECTION 5.  Chapter 59, Code of Criminal Procedure, is
2-54     amended by adding Articles 59.12, 59.13, and 59.14 to read as
2-55     follows:
2-56           Art. 59.12.  SEIZURE OF ACCOUNTS AND ASSETS AT REGULATED
2-57     FINANCIAL INSTITUTION.  (a)  This article applies to property
2-58     consisting of a depository account or assets in a regulated
2-59     financial institution.
2-60           (b)  A regulated financial institution, at the time a seizure
2-61     warrant issued under Chapter 18 is served on the institution, may
2-62     either:
2-63                 (1)  pay an account or tender assets held as security
2-64     for an obligation owed to the institution at the time of the
2-65     service of the seizure warrant; or
2-66                 (2)  transfer the depository account or assets to a
2-67     segregated interest-bearing account in the name of the attorney
2-68     representing the state as trustee, to remain in the account until
2-69     the time has expired for an appeal from a decision of the court
 3-1     relating to the forfeiture of accounts or assets under Article
 3-2     59.05.
 3-3           (c)  Immediately on service of the seizure warrant, the
 3-4     regulated financial institution shall take action as necessary to
 3-5     segregate the account or assets and shall provide evidence,
 3-6     certified by an officer of the institution, of the terms and amount
 3-7     of the account or a detailed inventory of the assets to the peace
 3-8     officer serving the warrant.  Except as otherwise provided by this
 3-9     article, a transaction involving an account or assets, other than
3-10     the deposit or reinvestment of interest, dividends, or other
3-11     normally recurring payments on the account or assets that do not
3-12     involve distribution of proceeds to the owner, is not authorized
3-13     unless approved by the court that issued the seizure warrant or, if
3-14     a forfeiture action has been instituted, the court in which that
3-15     action is pending.
3-16           (d)  Any accrual to the value of the account or assets during
3-17     the pendency of the forfeiture proceedings is subject to the
3-18     procedures for the disbursement of interest under Article 59.08.
3-19           (e)  If the regulated financial institution fails to release
3-20     the depository account or assets to a peace officer pursuant to a
3-21     seizure warrant or transfer the account or assets as required by
3-22     Subsection (b), and as a result cannot comply with the court's
3-23     forfeiture order, the court:
3-24                 (1)  shall order the regulated financial institution
3-25     and its culpable officers, agents, or employees to pay actual
3-26     damages, attorney's fees, and court costs incurred as a result of
3-27     the institution's failure to comply; and
3-28                 (2)  may find the regulated financial institution and
3-29     its culpable officers, agents, or employees in contempt.
3-30           (f)  A regulated financial institution that complies with
3-31     this article is not liable in damages because of the compliance.
3-32           (g)  This article does not:
3-33                 (1)  impair the right of the state to obtain possession
3-34     of physical evidence or to seize a depository account or other
3-35     assets for purposes other than forfeiture under this chapter; or
3-36                 (2)  waive criminal or civil remedies available under
3-37     other law.
3-38           Art. 59.13.  DISCLOSURE OF INFORMATION RELATING TO ACCOUNTS
3-39     AND ASSETS AT REGULATED FINANCIAL INSTITUTION.  (a)  The attorney
3-40     representing the state may disclose information to the primary
3-41     state or federal financial institution regulator, including grand
3-42     jury information or otherwise confidential information, relating to
3-43     any action contemplated or brought under this chapter that involves
3-44     property consisting of a depository account in a regulated
3-45     financial institution or assets held by a regulated financial
3-46     institution as security for an obligation owed to a regulated
3-47     financial institution.  An attorney representing the state who
3-48     discloses information as permitted by this subsection is not
3-49     subject to contempt under Article 20.02 for that disclosure.
3-50           (b)  A primary state or federal financial institution
3-51     regulator shall keep confidential any information provided by the
3-52     attorney representing the state under Subsection (a).  The sharing
3-53     of information under Subsection (a) by a representative of the
3-54     state is not considered a waiver by the state of any privilege or
3-55     claim of confidentiality.
3-56           (c)  A regulator described by Subsection (b) commits an
3-57     offense if the regulator knowingly discloses information in
3-58     violation of this article.  An offense under this subsection is
3-59     punishable by confinement in jail for a period not to exceed 30
3-60     days, a fine not to exceed $500, or both such confinement and fine.
3-61           Art. 59.14.  NOTICE TO PRIMARY STATE AND FEDERAL FINANCIAL
3-62     INSTITUTION REGULATORS.  (a)  Before taking any action under this
3-63     chapter that implicates a potentially culpable officer or director
3-64     of a regulated financial institution, the attorney representing the
3-65     state shall notify the banking commissioner, who shall notify the
3-66     appropriate state or federal financial institution regulator.
3-67           (b)  A state or federal financial institution regulator shall
3-68     keep confidential any information provided by the attorney
3-69     representing the state under Subsection (a).
 4-1           (c)  A regulator described by Subsection (b) commits an
 4-2     offense if the regulator knowingly discloses information in
 4-3     violation of this article.  An offense under this subsection is
 4-4     punishable by confinement in jail for a period not to exceed 30
 4-5     days, a fine not to exceed $500, or both such confinement and fine.
 4-6           (d)  The provision of notice under Subsection (a) is not
 4-7     considered a waiver by the state of any privilege or claim of
 4-8     confidentiality.
 4-9           SECTION 6.  The change in law made by this Act applies only
4-10     to a seizure that occurs on or after the effective date of this
4-11     Act.  A seizure that occurs before the effective date of this Act
4-12     is covered by the law in effect when the seizure occurred, and the
4-13     former law is continued in effect for that purpose.
4-14           SECTION 7.  This Act takes effect September 1, 2001.
4-15                                  * * * * *