|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to property in the custody of a pawnbroker; providing |
|
criminal penalties. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Subchapter D, Chapter 371, Finance Code, is |
|
amended by adding Section 371.1821 to read as follows: |
|
Sec. 371.1821. LAW ENFORCEMENT HOLD PROCEDURE; PLEDGE OR |
|
SALE OF MISAPPROPRIATED PROPERTY. (a) In this section: |
|
(1) "Chief law enforcement officer" means: |
|
(A) the sheriff of the county in which the |
|
pawnshop is located or an officer of the sheriff's department |
|
designated by the sheriff, if the pawnshop is not located in a |
|
municipality that maintains a police department; or |
|
(B) the police chief of the municipality in which |
|
the pawnshop is located or a police officer designated by the police |
|
chief, if the pawnshop is located in a municipality that maintains a |
|
police department. |
|
(2) "Misappropriated" means stolen, embezzled, |
|
converted, or otherwise wrongfully appropriated, or pledged |
|
against the will of the owner of the goods or a person holding a |
|
perfected security interest in the goods. |
|
(b) If a chief law enforcement officer has reasonable |
|
suspicion to believe that goods in the possession of a pawnbroker |
|
are misappropriated, the officer may place a hold order on the |
|
goods. |
|
(c) Goods subject to a hold order must be physically |
|
retained by the pawnbroker in a secure area and may not be released, |
|
sold, redeemed, or disposed of unless: |
|
(1) the chief law enforcement officer delivers a |
|
written release to the pawnbroker; |
|
(2) the hold order and any extension of the hold order |
|
expire; or |
|
(3) a court order, including a search warrant, |
|
requires the release, sale, or disposal of the property. |
|
(d) A hold order is effective only if it contains: |
|
(1) the name of the pawnbroker; |
|
(2) the name and mailing address of the pawnshop where |
|
the goods are located; |
|
(3) the name, title, badge number, and phone number of |
|
the chief law enforcement officer placing the hold order; |
|
(4) the case number of the criminal proceeding or |
|
investigation involving the goods to be held; |
|
(5) a complete description of the goods to be held, |
|
including any available model number and serial number, and the |
|
related pawn or purchase ticket number; |
|
(6) the expiration date of the hold order; and |
|
(7) the name of the law enforcement agency that |
|
prepared the investigative report and the associated number of the |
|
report. |
|
(e) The hold order and any extension of the hold order must |
|
be signed and dated by the chief law enforcement officer and the |
|
pawnbroker or the pawnbroker's designee, as evidence of the hold |
|
order's issuance by the chief law enforcement officer, the |
|
pawnbroker's receipt of the hold order, and the beginning of the |
|
holding period. The chief law enforcement officer shall provide at |
|
no cost to the pawnbroker an executed copy of the hold order for the |
|
pawnbroker's records. |
|
(f) The initial holding period of the hold order may not |
|
exceed 60 days. A hold order may be extended for up to three |
|
successive 60-day periods on written notification to the pawnbroker |
|
before the expiration of the immediately preceding holding period |
|
or extension. A hold order may be released before the expiration of |
|
the holding period or extension by written release from the chief |
|
law enforcement officer. A hold order is considered expired on the |
|
expiration date stated on the hold order if the holding period is |
|
not extended under this subsection. |
|
(g) Notwithstanding Subsection (e) or (f), the chief law |
|
enforcement officer may place a verbal hold order on property, or |
|
may verbally extend a hold order, for up to 10 days while a written |
|
hold order or extension is being prepared. A verbal hold order must |
|
include the information required by Subsection (d). |
|
(h) Goods subject to a hold order may be released to the |
|
custody of the chief law enforcement officer for use in a criminal |
|
investigation if the officer: |
|
(1) has probable cause to believe that the goods |
|
subject to a hold order are misappropriated; and |
|
(2) furnishes a written receipt for the goods. |
|
(i) The release of the goods to the custody of the chief law |
|
enforcement officer is not considered a waiver or release of the |
|
pawnbroker's rights or interest in the goods. Goods in the custody |
|
of the chief law enforcement officer are subject to Chapter 47, Code |
|
of Criminal Procedure. |
|
(j) A person commits an offense if the person pledges with |
|
or sells to a pawnbroker misappropriated property. An offense |
|
under this subsection is a Class B misdemeanor. If conduct that |
|
constitutes an offense under this subsection also constitutes an |
|
offense under any other law, the person may be prosecuted under this |
|
subsection or the other law. |
|
(k) This section does not affect the authority of a peace |
|
officer to seize property under Chapter 18 or 59, Code of Criminal |
|
Procedure. |
|
SECTION 2. Chapter 371, Finance Code, is amended by adding |
|
Subchapter H to read as follows: |
|
SUBCHAPTER H. PROVIDING DATA TO LAW ENFORCEMENT AGENCIES BY |
|
ELECTRONIC MEANS |
|
Sec. 371.351. DEFINITIONS. In this subchapter: |
|
(1) "Chief law enforcement officer" has the meaning |
|
assigned by Section 371.1821. |
|
(2) "Law enforcement agency" means the department of |
|
the chief law enforcement officer. |
|
(3) "Provider" means a commercial enterprise |
|
primarily engaged in the business of establishing and maintaining |
|
one or more Internet repositories. |
|
(4) "Reportable data" means the following information |
|
from a transaction in which a pawnshop customer pledges or sells |
|
personal property: |
|
(A) the name and address of the pawnshop; |
|
(B) the date of the transaction; |
|
(C) an identification and complete description |
|
of the goods pledged or sold, including any available model numbers |
|
and serial numbers, and other identifying characteristics; and |
|
(D) the pawn or purchase ticket number related to |
|
the transaction. |
|
(5) "Repository" means an electronic storage of |
|
transaction data. |
|
(6) "Transaction data" means information from a |
|
transaction in which a pawnshop customer pledges or sells personal |
|
property, including: |
|
(A) the name and address of the pawnshop; |
|
(B) the date of the transaction; |
|
(C) an identification and complete description |
|
of the goods pledged or sold, including any available model numbers |
|
and serial numbers, and other identifying characteristics; |
|
(D) the customer's name, address, and physical |
|
description; |
|
(E) a driver's license number, military |
|
identification number, identification certificate number, or other |
|
official number that identifies the customer; and |
|
(F) the pawn or purchase ticket number related to |
|
the transaction. |
|
Sec. 371.352. ELECTRONIC REPORTING TO LAW ENFORCEMENT |
|
AGENCY OR PROVIDER. (a) A pawnbroker who generates computerized |
|
pawn and purchase tickets shall, as required by the chief law |
|
enforcement officer, transmit all: |
|
(1) reportable data to the law enforcement agency |
|
electronically in a format used by the pawnbroker's computer |
|
software; or |
|
(2) transaction data electronically in the format used |
|
by the pawnbroker's computer software directly to the provider of |
|
the repository system approved by the commissioner under Section |
|
371.358. |
|
(b) A pawnbroker may transmit transaction data to the chief |
|
law enforcement officer. A pawnbroker and the chief law |
|
enforcement officer may agree to another means of transferring |
|
transaction data to a law enforcement agency. |
|
(c) A pawnbroker who reports information under this |
|
subchapter shall transmit data pertaining to a transaction not |
|
later than the seventh day after the date of the transaction, or |
|
within a shorter period as agreed to by the chief law enforcement |
|
officer and the pawnbroker. |
|
(d) If the chief law enforcement officer requires a |
|
pawnbroker to submit reportable data to the law enforcement agency, |
|
the law enforcement agency shall maintain a secure database using a |
|
minimum of 128-bit encryption for all electronic transmissions |
|
under this subchapter that occur through the Internet. The law |
|
enforcement agency shall implement appropriate security measures |
|
to ensure that its database of reportable data may be accessed only |
|
by the chief law enforcement officer. |
|
(e) A law enforcement agency may not charge a fee to a |
|
pawnbroker or customer of a pawnbroker for the preparation, |
|
compilation, conversion, or transmission of data under this |
|
section. |
|
Sec. 371.353. PROVIDER REPOSITORY. (a) A provider may |
|
establish a repository for the purpose of providing law enforcement |
|
agencies with access to transaction data to facilitate the |
|
investigation of alleged property crimes. |
|
(b) A provider shall collect and maintain the transaction |
|
data and shall update the repository at least daily. |
|
(c) A provider shall implement appropriate security |
|
measures and data recovery measures necessary to ensure the |
|
integrity of the data. A provider shall ensure that the repository |
|
can be accessed only by a chief law enforcement officer in |
|
accordance with this subchapter. |
|
Sec. 371.354. CHARGES FOR USE OF REPOSITORY. (a) A |
|
provider may charge a law enforcement agency a fee to access the |
|
repository. The fee must be reasonable in relation to the |
|
provider's costs in establishing and maintaining the repository. |
|
(b) A provider may not charge a pawnbroker or customer of a |
|
pawnbroker a fee for the compilation or transmission of reportable |
|
data or for the creation, maintenance, or use of any repository. |
|
Sec. 371.355. REPOSITORY REQUIREMENTS. A repository must: |
|
(1) enable reporting pawnbrokers to transmit data for |
|
each pawn and purchase transaction over the Internet in the format |
|
used by the pawnbroker's computer software; |
|
(2) enable authorized chief law enforcement officers |
|
who provide a secure identification or access code to access the |
|
reportable data contained in the repository over the Internet; |
|
(3) prevent unauthorized persons from accessing the |
|
data contained in the repository; |
|
(4) require authorized chief law enforcement officers |
|
seeking access to the identity of the customer in a pawn or purchase |
|
transaction to: |
|
(A) represent that the information is sought in |
|
connection with the investigation of a crime involving the goods |
|
delivered by the customer in that transaction; and |
|
(B) present: |
|
(i) a valid case number of a criminal |
|
proceeding or investigation for which the customer's identity is |
|
needed; or |
|
(ii) if a case number is not available, the |
|
name and badge number of the chief law enforcement officer seeking |
|
access to the customer's identity; |
|
(5) record the following information for each search |
|
of the repository: |
|
(A) the identity of the law enforcement personnel |
|
searching the repository; |
|
(B) the pawn or purchase transaction involved in |
|
the search; and |
|
(C) the identity of any customer whose |
|
information was accessed through the search; and |
|
(6) use a minimum of 128-bit encryption for all |
|
transmissions to and from the repository. |
|
Sec. 371.356. CONFIDENTIALITY. (a) The data in the |
|
repository is confidential and may be released or disclosed only to |
|
a law enforcement agency for the investigation of a crime or to the |
|
commissioner for administrative purposes. |
|
(b) A person who releases or discloses data in violation of |
|
this section commits an offense. An offense under this section is a |
|
Class A misdemeanor. |
|
Sec. 371.357. FRAUDULENT ACCESS OF REPOSITORY. A person |
|
who gains access to the information in the repository through fraud |
|
or false pretenses commits an offense. An offense under this |
|
section is a Class A misdemeanor. |
|
Sec. 371.358. COMMISSIONER APPROVAL AND OVERSIGHT. (a) |
|
The commissioner, after receiving and evaluating competitive |
|
proposals from potential providers, may approve the repository |
|
system of a provider for use under this subchapter. If the |
|
commissioner approves the repository system of a provider under |
|
this subsection, the commissioner shall receive and evaluate |
|
competitive proposals from the provider and other potential |
|
providers at least once every two years. |
|
(b) The commissioner may require appropriate documentation |
|
demonstrating that a provider or a law enforcement agency that |
|
collects reportable data meets the requirements of this subchapter. |
|
(c) On or before January 31 of each year, a provider or law |
|
enforcement agency that collects reportable data electronically |
|
under this subchapter shall report to the commissioner the total |
|
number of transactions reported by each reporting pawnbroker in the |
|
preceding calendar year. The provider or law enforcement agency |
|
shall provide the report at no cost to the commissioner. |
|
Sec. 371.359. COMPUTER-RELATED MALFUNCTIONS AND ERRORS. |
|
(a) A pawnbroker who electronically reports information under this |
|
subchapter may not be held responsible for a delay in submitting |
|
data that results from a computer-related malfunction or error |
|
caused by the pawnbroker's equipment or software, if: |
|
(1) the pawnbroker makes a bona fide effort to repair |
|
the malfunction or correct the error; and |
|
(2) the pawnbroker and the chief law enforcement |
|
officer arrange a mutually acceptable alternative method by which |
|
the pawnbroker provides the data to the law enforcement agency. |
|
(b) A pawnbroker who electronically reports information |
|
under this subchapter may not be held responsible for a delay in |
|
submitting data that results from a computer-related malfunction or |
|
error that is the responsibility of a provider or a law enforcement |
|
agency. A pawnbroker and a chief law enforcement officer shall |
|
arrange a mutually acceptable alternative method by which the |
|
pawnbroker provides the data to the law enforcement agency until |
|
the malfunction or error is corrected. |
|
(c) The Finance Commission of Texas may adopt rules to |
|
establish procedures to address computer-related malfunctions and |
|
errors under this subchapter. |
|
Sec. 371.360. PAPER COPIES. (a) A pawnbroker who |
|
electronically reports information under this subchapter shall |
|
make available for on-site inspection, to any appropriate law |
|
enforcement officer on request, paper copies of pawn or purchase |
|
transaction documents. |
|
(b) After the 180th day after the date a pawnbroker |
|
transmits data under this subchapter, the pawnbroker is not |
|
required to make available to any law enforcement personnel paper |
|
copies of the pawnbroker's information related to the pawnbroker's |
|
pawn or purchase transactions, except as provided by Subsection (c) |
|
and for evidentiary purposes for which a law enforcement officer |
|
makes a specific request related to a specific transaction. |
|
(c) For a reasonable period following the repair of a |
|
computer-related malfunction or error, a pawnbroker shall make |
|
available for on-site inspection, to any appropriate law |
|
enforcement officer on request, paper copies of pawn or purchase |
|
transaction documents for transactions that occurred during the |
|
period beginning when the malfunction or error occurs and ending |
|
when the chief law enforcement officer is reasonably certain the |
|
malfunction or error has been corrected. |
|
(d) The Finance Commission of Texas may adopt rules to |
|
implement this section. |
|
SECTION 3. This Act takes effect January 1, 2008 |
|
. |