80R2927 ATP-F

By: Bohac H.B. No. 1454

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of and information regarding property in the custody of a pawnbroker; providing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 371.005, Finance Code, is amended to read as follows:

Sec. 371.005. REGULATORY AND ENFORCEMENT AUTHORITY. (a) The legislature has exclusive authority regarding the operation of pawnshops, except for a matter delegated by this chapter to the commissioner. The commissioner has the authority to regulate only a business practice that requires a pawnshop license.

(b) The governing body of a municipality may adopt an ordinance to enforce a provision of this chapter, other than a provision relating to licensing, against an individual who holds a pawnshop license issued by this state or an employee of a person who holds a pawnshop license issued by this state. An ordinance adopted under this subsection may not provide a penalty greater than a Class C misdemeanor.

SECTION 2. Section 371.177, Finance Code, is amended to read as follows:

Sec. 371.177. PURCHASE OF USED PERSONAL PROPERTY. A pawnbroker may not purchase used personal property from a person other than another pawnbroker unless a record is established that contains:

(1) the seller's name, address, and physical description and a driver's license number, military identification number, identification certificate number, or other official number that can identify the seller;

(2) a complete description of the property, including the serial number, if reasonably available, or other identifying characteristics; [and]

(3) the seller's signed statement that the seller has the right to sell the property;

(4) the seller's legibly recorded thumbprint; and

(5) an electronic photograph of the seller.

SECTION 3. 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) A receipt must be provided to the pawnbroker for goods released to the custody of the chief law enforcement officer for use in a criminal investigation.

(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 chief law enforcement officer to seize contraband under Chapters 18 and 59, Code of Criminal Procedure.

SECTION 4. 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) "Transaction data" means information from a transaction in which a pawnshop customer pledges or sells personal property. The term:

(A) includes:

(i) the name and address of the pawnshop;

(ii) the date of the transaction;

(iii) an identification and complete description of the goods pledged or sold, including any available model numbers and serial numbers, and other identifying characteristics;

(iv) the name, address, and physical description of the person pledging or selling goods;

(v) a driver's license number, military identification number, identification certificate number, or other official number that identifies the person pledging or selling goods; and

(vi) the pawn or purchase ticket number related to the transaction; and

(B) does not include financial information regarding terms of the transaction.

Sec. 371.352. ELECTRONIC REPORTING TO LAW ENFORCEMENT AGENCY. (a) A pawnbroker who generates computerized pawn and purchase tickets or has the capability to generate computerized pawn and purchase tickets shall, if required by the chief law enforcement officer, transmit all transaction data to the law enforcement agency electronically in a format used by the pawnbroker's computer software.

(b) 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 the 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 transaction 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 transaction data may be accessed only by law enforcement officials and for official law enforcement purposes.

(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. CONFIDENTIALITY. (a) The data in the law enforcement database 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, discloses, or uses data in violation of this section commits an offense. An offense under this section is a Class B misdemeanor.

Sec. 371.354. 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 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. 371.355. 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, including the thumbprint and photograph that the pawnbroker must record under Section 31.03(c)(3)(A), Penal Code.

(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 5. Section 31.03(c), Penal Code, is amended to read as follows:

(c) For purposes of Subsection (b):

(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor's plea of not guilty;

(2) the testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor's knowledge or intent may be established by the uncorroborated testimony of the accomplice;

(3) an actor engaged in the business of buying and selling used or secondhand personal property, or lending money on the security of personal property deposited with the actor, is presumed to know upon receipt by the actor of stolen property (other than a motor vehicle subject to Chapter 501, Transportation Code) that the property has been previously stolen from another if the actor pays for or loans against the property $25 or more (or consideration of equivalent value) and the actor knowingly or recklessly:

(A) fails to:

(i) record the name, address, and [physical description or] identification number of the seller or pledgor, if the actor is not a pawnbroker as defined by Section 371.003, Finance Code; or

(ii) record the name, address, and identification number of the seller or pledgor, take and record a photograph of the seller or pledgor by electronic means, obtain and legibly record the seller's or pledgor's thumbprint, and provide transaction data to a law enforcement agency as required by Section 371.352, Finance Code, if the actor is a pawnbroker as defined by Section 371.003, Finance Code;

(B) fails to record a complete description of the property, including the serial number, if reasonably available, or other identifying characteristics; or

(C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property. It is the express intent of this provision that the presumption arises unless the actor complies with each of the numbered requirements;

(4) for the purposes of Subdivision (3)(A), "identification number" means driver's license number, military identification number, identification certificate, or other official number capable of identifying an individual;

(5) stolen property does not lose its character as stolen when recovered by any law enforcement agency;

(6) an actor engaged in the business of obtaining abandoned or wrecked motor vehicles or parts of an abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or other form of salvage is presumed to know on receipt by the actor of stolen property that the property has been previously stolen from another if the actor knowingly or recklessly:

(A) fails to maintain an accurate and legible inventory of each motor vehicle component part purchased by or delivered to the actor, including the date of purchase or delivery, the name, age, address, sex, and driver's license number of the seller or person making the delivery, the license plate number of the motor vehicle in which the part was delivered, a complete description of the part, and the vehicle identification number of the motor vehicle from which the part was removed, or in lieu of maintaining an inventory, fails to record the name and certificate of inventory number of the person who dismantled the motor vehicle from which the part was obtained;

(B) fails on receipt of a motor vehicle to obtain a certificate of authority, sales receipt, or transfer document as required by Chapter 683, Transportation Code, or a certificate of title showing that the motor vehicle is not subject to a lien or that all recorded liens on the motor vehicle have been released; or

(C) fails on receipt of a motor vehicle to immediately remove an unexpired license plate from the motor vehicle, to keep the plate in a secure and locked place, or to maintain an inventory, on forms provided by the Texas Department of Transportation, of license plates kept under this paragraph, including for each plate or set of plates the license plate number and the make, motor number, and vehicle identification number of the motor vehicle from which the plate was removed;

(7) an actor who purchases or receives a used or secondhand motor vehicle is presumed to know on receipt by the actor of the motor vehicle that the motor vehicle has been previously stolen from another if the actor knowingly or recklessly:

(A) fails to report to the Texas Department of Transportation the failure of the person who sold or delivered the motor vehicle to the actor to deliver to the actor a properly executed certificate of title to the motor vehicle at the time the motor vehicle was delivered; or

(B) fails to file with the county tax assessor-collector of the county in which the actor received the motor vehicle, not later than the 20th day after the date the actor received the motor vehicle, the registration license receipt and certificate of title or evidence of title delivered to the actor in accordance with Subchapter D, Chapter 520, Transportation Code, at the time the motor vehicle was delivered;

(8) an actor who purchases or receives from any source other than a licensed retailer or distributor of pesticides a restricted-use pesticide or a state-limited-use pesticide or a compound, mixture, or preparation containing a restricted-use or state-limited-use pesticide is presumed to know on receipt by the actor of the pesticide or compound, mixture, or preparation that the pesticide or compound, mixture, or preparation has been previously stolen from another if the actor:

(A) fails to record the name, address, and physical description of the seller or pledgor;

(B) fails to record a complete description of the amount and type of pesticide or compound, mixture, or preparation purchased or received; and

(C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property; and

(9) an actor who is subject to Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b), that obtains livestock from a commission merchant by representing that the actor will make prompt payment is presumed to have induced the commission merchant's consent by deception if the actor fails to make full payment in accordance with Section 409, Packers and Stockyards Act (7 U.S.C. Section 228b).

SECTION 6. The change in law made by this Act to Section 31.03, Penal Code, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.

SECTION 7. This Act takes effect January 1, 2008.