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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation of and information regarding property in |
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the custody of a pawnbroker; providing criminal penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 371.005, Finance Code, is amended to |
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read as follows: |
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Sec. 371.005. REGULATORY AND ENFORCEMENT AUTHORITY. (a) |
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The legislature has exclusive authority regarding the operation of |
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pawnshops, except for a matter delegated by this chapter to the |
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commissioner. The commissioner has the authority to regulate only |
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a business practice that requires a pawnshop license. |
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(b) The governing body of a municipality may adopt an |
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ordinance to enforce a provision of this chapter, other than a |
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provision relating to licensing, against an individual who holds a |
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pawnshop license issued by this state or an employee of a person who |
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holds a pawnshop license issued by this state. An ordinance adopted |
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under this subsection may not provide a penalty greater than a Class |
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C misdemeanor. |
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SECTION 2. Section 371.177, Finance Code, is amended to |
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read as follows: |
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Sec. 371.177. PURCHASE OF USED PERSONAL PROPERTY. A |
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pawnbroker may not purchase used personal property from a person |
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other than another pawnbroker unless a record is established that |
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contains: |
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(1) the seller's name, address, and physical |
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description and a driver's license number, military identification |
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number, identification certificate number, or other official |
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number that can identify the seller; |
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(2) a complete description of the property, including |
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the serial number, if reasonably available, or other identifying |
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characteristics; [and] |
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(3) the seller's signed statement that the seller has |
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the right to sell the property; |
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(4) the seller's legibly recorded thumbprint; and |
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(5) an electronic photograph of the seller. |
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SECTION 3. Subchapter D, Chapter 371, Finance Code, is |
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amended by adding Section 371.1821 to read as follows: |
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Sec. 371.1821. LAW ENFORCEMENT HOLD PROCEDURE; PLEDGE OR |
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SALE OF MISAPPROPRIATED PROPERTY. (a) In this section: |
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(1) "Chief law enforcement officer" means: |
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(A) the sheriff of the county in which the |
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pawnshop is located or an officer of the sheriff's department |
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designated by the sheriff, if the pawnshop is not located in a |
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municipality that maintains a police department; or |
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(B) the police chief of the municipality in which |
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the pawnshop is located or a police officer designated by the police |
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chief, if the pawnshop is located in a municipality that maintains a |
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police department. |
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(2) "Misappropriated" means stolen, embezzled, |
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converted, or otherwise wrongfully appropriated, or pledged |
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against the will of the owner of the goods or a person holding a |
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perfected security interest in the goods. |
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(b) If a chief law enforcement officer has reasonable |
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suspicion to believe that goods in the possession of a pawnbroker |
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are misappropriated, the officer may place a hold order on the |
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goods. |
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(c) Goods subject to a hold order must be physically |
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retained by the pawnbroker in a secure area and may not be released, |
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sold, redeemed, or disposed of unless: |
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(1) the chief law enforcement officer delivers a |
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written release to the pawnbroker; |
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(2) the hold order and any extension of the hold order |
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expire; or |
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(3) a court order, including a search warrant, |
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requires the release, sale, or disposal of the property. |
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(d) A hold order is effective only if it contains: |
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(1) the name of the pawnbroker; |
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(2) the name and mailing address of the pawnshop where |
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the goods are located; |
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(3) the name, title, badge number, and phone number of |
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the chief law enforcement officer placing the hold order; |
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(4) the case number of the criminal proceeding or |
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investigation involving the goods to be held; |
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(5) a complete description of the goods to be held, |
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including any available model number and serial number, and the |
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related pawn or purchase ticket number; |
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(6) the expiration date of the hold order; and |
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(7) the name of the law enforcement agency that |
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prepared the investigative report and the associated number of the |
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report. |
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(e) The hold order and any extension of the hold order must |
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be signed and dated by the chief law enforcement officer and the |
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pawnbroker or the pawnbroker's designee, as evidence of the hold |
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order's issuance by the chief law enforcement officer, the |
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pawnbroker's receipt of the hold order, and the beginning of the |
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holding period. The chief law enforcement officer shall provide at |
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no cost to the pawnbroker an executed copy of the hold order for the |
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pawnbroker's records. |
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(f) The initial holding period of the hold order may not |
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exceed 60 days. A hold order may be extended for up to three |
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successive 60-day periods on written notification to the pawnbroker |
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before the expiration of the immediately preceding holding period |
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or extension. A hold order may be released before the expiration of |
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the holding period or extension by written release from the chief |
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law enforcement officer. A hold order is considered expired on the |
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expiration date stated on the hold order if the holding period is |
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not extended under this subsection. |
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(g) Notwithstanding Subsection (e) or (f), the chief law |
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enforcement officer may place a verbal hold order on property, or |
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may verbally extend a hold order, for up to 10 days while a written |
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hold order or extension is being prepared. A verbal hold order must |
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include the information required by Subsection (d). |
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(h) A receipt must be provided to the pawnbroker for goods |
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released to the custody of the chief law enforcement officer for use |
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in a criminal investigation. |
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(i) The release of the goods to the custody of the chief law |
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enforcement officer is not considered a waiver or release of the |
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pawnbroker's rights or interest in the goods. Goods in the custody |
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of the chief law enforcement officer are subject to Chapter 47, Code |
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of Criminal Procedure. |
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(j) A person commits an offense if the person pledges with |
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or sells to a pawnbroker misappropriated property. An offense |
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under this subsection is a Class B misdemeanor. If conduct that |
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constitutes an offense under this subsection also constitutes an |
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offense under any other law, the person may be prosecuted under this |
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subsection or the other law. |
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(k) This section does not affect the authority of a chief |
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law enforcement officer to seize contraband under Chapters 18 and |
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59, Code of Criminal Procedure. |
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SECTION 4. Chapter 371, Finance Code, is amended by adding |
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Subchapter H to read as follows: |
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SUBCHAPTER H. PROVIDING DATA TO LAW ENFORCEMENT AGENCIES BY |
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ELECTRONIC MEANS |
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Sec. 371.351. DEFINITIONS. In this subchapter: |
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(1) "Chief law enforcement officer" has the meaning |
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assigned by Section 371.1821. |
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(2) "Law enforcement agency" means the department of |
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the chief law enforcement officer. |
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(3) "Transaction data" means information from a |
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transaction in which a pawnshop customer pledges or sells personal |
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property. The term: |
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(A) includes: |
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(i) the name and address of the pawnshop; |
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(ii) the date of the transaction; |
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(iii) an identification and complete |
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description of the goods pledged or sold, including any available |
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model numbers and serial numbers, and other identifying |
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characteristics; |
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(iv) the name, address, and physical |
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description of the person pledging or selling goods; |
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(v) a driver's license number, military |
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identification number, identification certificate number, or other |
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official number that identifies the person pledging or selling |
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goods; and |
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(vi) the pawn or purchase ticket number |
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related to the transaction; and |
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(B) does not include financial information |
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regarding terms of the transaction. |
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Sec. 371.352. ELECTRONIC REPORTING TO LAW ENFORCEMENT |
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AGENCY. (a) A pawnbroker who generates computerized pawn and |
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purchase tickets or has the capability to generate computerized |
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pawn and purchase tickets shall, if required by the chief law |
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enforcement officer, transmit all transaction data to the law |
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enforcement agency electronically in a format used by the |
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pawnbroker's computer software. |
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(b) A pawnbroker and the chief law enforcement officer may |
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agree to another means of transferring transaction data to a law |
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enforcement agency. |
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(c) A pawnbroker who reports information under this |
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subchapter shall transmit the data pertaining to a transaction not |
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later than the seventh day after the date of the transaction, or |
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within a shorter period as agreed to by the chief law enforcement |
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officer and the pawnbroker. |
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(d) If the chief law enforcement officer requires a |
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pawnbroker to submit transaction data to the law enforcement |
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agency, the law enforcement agency shall maintain a secure database |
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using a minimum of 128-bit encryption for all electronic |
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transmissions under this subchapter that occur through the |
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Internet. The law enforcement agency shall implement appropriate |
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security measures to ensure that its database of transaction data |
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may be accessed only by law enforcement officials and for official |
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law enforcement purposes. |
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(e) A law enforcement agency may not charge a fee to a |
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pawnbroker or customer of a pawnbroker for the preparation, |
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compilation, conversion, or transmission of data under this |
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section. |
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Sec. 371.353. CONFIDENTIALITY. (a) The data in the law |
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enforcement database is confidential and may be released or |
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disclosed only to a law enforcement agency for the investigation of |
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a crime or to the commissioner for administrative purposes. |
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(b) A person who releases, discloses, or uses data in |
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violation of this section commits an offense. An offense under this |
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section is a Class B misdemeanor. |
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Sec. 371.354. COMPUTER-RELATED MALFUNCTIONS AND ERRORS. |
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(a) A pawnbroker who electronically reports information under this |
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subchapter may not be held responsible for a delay in submitting |
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data that results from a computer-related malfunction or error |
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caused by the pawnbroker's equipment or software, if: |
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(1) the pawnbroker makes a bona fide effort to repair |
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the malfunction or correct the error; and |
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(2) the pawnbroker and the chief law enforcement |
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officer arrange a mutually acceptable alternative method by which |
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the pawnbroker provides the data to the law enforcement agency. |
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(b) A pawnbroker who electronically reports information |
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under this subchapter may not be held responsible for a delay in |
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submitting data that results from a computer-related malfunction or |
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error that is the responsibility of a law enforcement agency. A |
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pawnbroker and a chief law enforcement officer shall arrange a |
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mutually acceptable alternative method by which the pawnbroker |
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provides the data to the law enforcement agency until the |
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malfunction or error is corrected. |
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(c) The Finance Commission of Texas may adopt rules to |
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establish procedures to address computer-related malfunctions and |
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errors under this subchapter. |
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Sec. 371.355. PAPER COPIES. (a) A pawnbroker who |
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electronically reports information under this subchapter shall |
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make available for on-site inspection, to any appropriate law |
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enforcement officer on request, paper copies of pawn or purchase |
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transaction documents, including the thumbprint and photograph |
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that the pawnbroker must record under Section 31.03(c)(3)(A), Penal |
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Code. |
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(b) After the 180th day after the date a pawnbroker |
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transmits data under this subchapter, the pawnbroker is not |
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required to make available to any law enforcement personnel paper |
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copies of the pawnbroker's information related to the pawnbroker's |
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pawn or purchase transactions, except as provided by Subsection (c) |
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and for evidentiary purposes for which a law enforcement officer |
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makes a specific request related to a specific transaction. |
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(c) For a reasonable period following the repair of a |
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computer-related malfunction or error, a pawnbroker shall make |
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available for on-site inspection, to any appropriate law |
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enforcement officer on request, paper copies of pawn or purchase |
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transaction documents for transactions that occurred during the |
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period beginning when the malfunction or error occurs and ending |
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when the chief law enforcement officer is reasonably certain the |
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malfunction or error has been corrected. |
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(d) The Finance Commission of Texas may adopt rules to |
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implement this section. |
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SECTION 5. Section 31.03(c), Penal Code, is amended to read |
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as follows: |
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(c) For purposes of Subsection (b): |
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(1) evidence that the actor has previously |
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participated in recent transactions other than, but similar to, |
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that which the prosecution is based is admissible for the purpose of |
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showing knowledge or intent and the issues of knowledge or intent |
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are raised by the actor's plea of not guilty; |
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(2) the testimony of an accomplice shall be |
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corroborated by proof that tends to connect the actor to the crime, |
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but the actor's knowledge or intent may be established by the |
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uncorroborated testimony of the accomplice; |
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(3) an actor engaged in the business of buying and |
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selling used or secondhand personal property, or lending money on |
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the security of personal property deposited with the actor, is |
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presumed to know upon receipt by the actor of stolen property (other |
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than a motor vehicle subject to Chapter 501, Transportation Code) |
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that the property has been previously stolen from another if the |
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actor pays for or loans against the property $25 or more (or |
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consideration of equivalent value) and the actor knowingly or |
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recklessly: |
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(A) fails to: |
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(i) record the name, address, and [physical
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description or] identification number of the seller or pledgor, if |
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the actor is not a pawnbroker as defined by Section 371.003, Finance |
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Code; or |
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(ii) record the name, address, and |
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identification number of the seller or pledgor, take and record a |
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photograph of the seller or pledgor by electronic means, obtain and |
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legibly record the seller's or pledgor's thumbprint, and provide |
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transaction data to a law enforcement agency as required by Section |
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371.352, Finance Code, if the actor is a pawnbroker as defined by |
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Section 371.003, Finance Code; |
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(B) fails to record a complete description of the |
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property, including the serial number, if reasonably available, or |
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other identifying characteristics; or |
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(C) fails to obtain a signed warranty from the |
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seller or pledgor that the seller or pledgor has the right to |
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possess the property. It is the express intent of this provision |
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that the presumption arises unless the actor complies with each of |
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the numbered requirements; |
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(4) for the purposes of Subdivision (3)(A), |
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"identification number" means driver's license number, military |
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identification number, identification certificate, or other |
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official number capable of identifying an individual; |
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(5) stolen property does not lose its character as |
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stolen when recovered by any law enforcement agency; |
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(6) an actor engaged in the business of obtaining |
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abandoned or wrecked motor vehicles or parts of an abandoned or |
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wrecked motor vehicle for resale, disposal, scrap, repair, |
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rebuilding, demolition, or other form of salvage is presumed to |
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know on receipt by the actor of stolen property that the property |
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has been previously stolen from another if the actor knowingly or |
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recklessly: |
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(A) fails to maintain an accurate and legible |
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inventory of each motor vehicle component part purchased by or |
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delivered to the actor, including the date of purchase or delivery, |
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the name, age, address, sex, and driver's license number of the |
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seller or person making the delivery, the license plate number of |
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the motor vehicle in which the part was delivered, a complete |
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description of the part, and the vehicle identification number of |
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the motor vehicle from which the part was removed, or in lieu of |
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maintaining an inventory, fails to record the name and certificate |
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of inventory number of the person who dismantled the motor vehicle |
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from which the part was obtained; |
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(B) fails on receipt of a motor vehicle to obtain |
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a certificate of authority, sales receipt, or transfer document as |
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required by Chapter 683, Transportation Code, or a certificate of |
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title showing that the motor vehicle is not subject to a lien or |
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that all recorded liens on the motor vehicle have been released; or |
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(C) fails on receipt of a motor vehicle to |
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immediately remove an unexpired license plate from the motor |
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vehicle, to keep the plate in a secure and locked place, or to |
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maintain an inventory, on forms provided by the Texas Department of |
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Transportation, of license plates kept under this paragraph, |
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including for each plate or set of plates the license plate number |
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and the make, motor number, and vehicle identification number of |
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the motor vehicle from which the plate was removed; |
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(7) an actor who purchases or receives a used or |
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secondhand motor vehicle is presumed to know on receipt by the actor |
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of the motor vehicle that the motor vehicle has been previously |
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stolen from another if the actor knowingly or recklessly: |
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(A) fails to report to the Texas Department of |
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Transportation the failure of the person who sold or delivered the |
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motor vehicle to the actor to deliver to the actor a properly |
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executed certificate of title to the motor vehicle at the time the |
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motor vehicle was delivered; or |
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(B) fails to file with the county tax |
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assessor-collector of the county in which the actor received the |
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motor vehicle, not later than the 20th day after the date the actor |
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received the motor vehicle, the registration license receipt and |
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certificate of title or evidence of title delivered to the actor in |
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accordance with Subchapter D, Chapter 520, Transportation Code, at |
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the time the motor vehicle was delivered; |
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(8) an actor who purchases or receives from any source |
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other than a licensed retailer or distributor of pesticides a |
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restricted-use pesticide or a state-limited-use pesticide or a |
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compound, mixture, or preparation containing a restricted-use or |
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state-limited-use pesticide is presumed to know on receipt by the |
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actor of the pesticide or compound, mixture, or preparation that |
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the pesticide or compound, mixture, or preparation has been |
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previously stolen from another if the actor: |
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(A) fails to record the name, address, and |
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physical description of the seller or pledgor; |
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(B) fails to record a complete description of the |
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amount and type of pesticide or compound, mixture, or preparation |
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purchased or received; and |
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(C) fails to obtain a signed warranty from the |
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seller or pledgor that the seller or pledgor has the right to |
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possess the property; and |
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(9) an actor who is subject to Section 409, Packers and |
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Stockyards Act (7 U.S.C. Section 228b), that obtains livestock from |
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a commission merchant by representing that the actor will make |
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prompt payment is presumed to have induced the commission |
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merchant's consent by deception if the actor fails to make full |
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payment in accordance with Section 409, Packers and Stockyards Act |
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(7 U.S.C. Section 228b). |
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SECTION 6. The change in law made by this Act to Section |
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31.03, Penal Code, applies only to an offense committed on or after |
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the effective date of this Act. An offense committed before the |
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effective date of this Act is covered by the law in effect when the |
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offense was committed, and the former law is continued in effect for |
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that purpose. For purposes of this section, an offense was |
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committed before the effective date of this Act if any element of |
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the offense was committed before that date. |
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SECTION 7. This Act takes effect January 1, 2008. |