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A BILL TO BE ENTITLED
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AN ACT
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relating to the forfeiture of certain contraband and an affirmative |
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defense to that forfeiture. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 59.01(1), Code of Criminal Procedure, is |
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amended to read as follows: |
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(1) "Attorney representing the state" means the |
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prosecutor with felony jurisdiction in the county in which a |
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forfeiture proceeding is held under this chapter or, in a |
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proceeding for forfeiture of contraband as defined under |
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Subdivision (2)(B)(v) or (2)(F) of this article, the city attorney |
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of a municipality if the property is seized in that municipality by |
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a peace officer employed by that municipality and the governing |
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body of the municipality has approved procedures for the city |
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attorney acting in a forfeiture proceeding. In a proceeding for |
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forfeiture of contraband as defined under Subdivision (2)(B)(vii) |
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or (2)(F) of this article, the term includes the attorney general. |
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SECTION 2. Article 59.01(2), Code of Criminal Procedure, as |
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amended by Chapters 127 (S.B. 1694), 822 (H.B. 73), and 885 (H.B. |
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2278), Acts of the 80th Legislature, Regular Session, 2007, is |
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reenacted and amended to read as follows: |
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(2) "Contraband" means property of any nature, |
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including real, personal, tangible, or intangible, that is: |
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(A) used in the commission of: |
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(i) any first or second degree felony under |
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the Penal Code; |
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(ii) any felony under Section 15.031(b), |
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20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 20A, 29, |
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30, 31, 32, 33, 33A, or 35, Penal Code; |
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(iii) any felony under The Securities Act |
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(Article 581-1 et seq., Vernon's Texas Civil Statutes); or |
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(iv) any offense under Chapter 49, Penal |
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Code, that is punishable as a felony of the third degree or state |
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jail felony, if the defendant has been previously convicted three |
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times of an offense under that chapter; |
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(B) used or intended to be used in the commission |
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of: |
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(i) any felony under Chapter 481, Health |
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and Safety Code (Texas Controlled Substances Act); |
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(ii) any felony under Chapter 483, Health |
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and Safety Code; |
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(iii) a felony under Chapter 153, Finance |
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Code; |
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(iv) any felony under Chapter 34, Penal |
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Code; |
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(v) a Class A misdemeanor under Subchapter |
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B, Chapter 365, Health and Safety Code, if the defendant has been |
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previously convicted twice of an offense under that subchapter; |
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(vi) any felony under Chapter 152, Finance |
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Code; |
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(vii) any felony under Chapter 32, Human |
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Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that |
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involves the state Medicaid program; |
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(viii) a Class B misdemeanor under Chapter |
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522, Business & Commerce Code; or |
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(ix) a Class A misdemeanor under Section |
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35.153, Business & Commerce Code; |
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(C) the proceeds gained from the commission of a |
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felony listed in Paragraph (A) or (B) of this subdivision, a |
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misdemeanor listed in Paragraph (B)(viii) of this subdivision, or a |
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crime of violence; |
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(D) acquired with proceeds gained from the |
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commission of a felony listed in Paragraph (A) or (B) of this |
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subdivision, a misdemeanor listed in Paragraph (B)(viii) of this |
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subdivision, or a crime of violence; [or] |
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(E) used to facilitate or intended to be used to |
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facilitate the commission of a felony under Section 15.031 or |
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43.25, Penal Code; or |
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(F) used to facilitate or intended to be used to |
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facilitate the commission of an offense under Section 20A.02, |
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43.02, 43.03, or 43.04, Penal Code. |
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SECTION 3. Article 59.02, Code of Criminal Procedure, is |
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amended by adding Subsection (j) to read as follows: |
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(j) A community property interest in a motor vehicle defined |
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as contraband under Article 59.01(2)(F) may not be forfeited under |
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this chapter if at the forfeiture hearing the spouse proves by a |
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preponderance of the evidence that the spouse was not a party to the |
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offense giving rise to the forfeiture and that: |
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(1) the forfeiture of the motor vehicle will result in |
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an unusual economic hardship for the spouse; or |
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(2) the use of the motor vehicle is necessary because |
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of the illness of a member of the spouse's family. |
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SECTION 4. Article 59.06, Code of Criminal Procedure, is |
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amended by amending Subsection (a) and adding Subsection (r) to |
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read as follows: |
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(a) Except as provided by Subsection (k) or (r), all |
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forfeited property shall be administered by the attorney |
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representing the state, acting as the agent of the state, in |
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accordance with accepted accounting practices and with the |
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provisions of any local agreement entered into between the attorney |
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representing the state and law enforcement agencies. If a local |
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agreement has not been executed, the property shall be sold on the |
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75th day after the date of the final judgment of forfeiture at |
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public auction under the direction of the county sheriff, after |
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notice of public auction as provided by law for other sheriff's |
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sales. The proceeds of the sale shall be distributed as follows: |
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(1) to any interest holder to the extent of the |
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interest holder's nonforfeitable interest; and |
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(2) the balance, if any, after the deduction of court |
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costs to which a district court clerk is entitled under Article |
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59.05(f) and, after that deduction, the deduction of storage and |
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disposal costs, to be deposited not later than the 30th day after |
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the date of the sale in the state treasury to the credit of the |
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general revenue fund. |
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(r) Regardless of whether a local agreement exists between |
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the attorney representing the state and law enforcement agencies, |
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if the forfeited property is used in the commission of an offense |
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under Chapter 20A, Penal Code, or is defined as contraband under |
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Article 59.01(2)(F), the attorney representing the state shall sell |
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the forfeited property and deliver to the comptroller the proceeds |
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from the sale, minus any amount owed to an interest holder to the |
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extent of the holder's nonforfeitable interest and any costs |
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attributable to the sale. The attorney representing the state |
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shall conduct the sale in a manner that is reasonably expected to |
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result in receiving the fair market value for the property. The |
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comptroller shall deposit all amounts received under this |
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subsection in the sexual assault program fund created under Section |
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420.008, Government Code. |
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SECTION 5. Article 59.06, Code of Criminal Procedure, as |
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amended by this Act, applies to personal property seized or taken |
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into custody on or after the effective date of this Act. Personal |
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property seized or taken into custody before the effective date of |
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this Act is governed by the law in effect on the date the property is |
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seized or taken into custody, and the former law is continued in |
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effect for that purpose. |
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SECTION 6. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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covered by the law in effect when the offense was committed, and the |
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former law is continued in effect for that purpose. For purposes of |
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this section, an offense was committed before the effective date of |
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this Act if any element of the offense was committed before that |
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date. |
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SECTION 7. This Act takes effect September 1, 2009. |