| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to procedures for the disposition of certain weapons |
|
|
seized by a law enforcement agency. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Article 18.19, Code of Criminal Procedure, is |
|
|
amended to read as follows: |
|
|
Art. 18.19. DISPOSITION OF SEIZED WEAPONS. (a) A law |
|
|
enforcement agency that seizes a weapon [Weapons seized] in |
|
|
connection with an offense involving the use of a weapon or an |
|
|
offense under Chapter 46, Penal Code, or that seizes a weapon from a |
|
|
person taken into custody under Section 573.001, Health and Safety |
|
|
Code, [Chapter 46] shall hold the weapon and provide for a |
|
|
disposition of the weapon in accordance with this article [be held
|
|
|
by the law enforcement agency making the seizure, subject to the
|
|
|
following provisions,] unless the weapon: |
|
|
(1) [the weapon] is a prohibited weapon listed in |
|
|
Section 46.05, [identified in] Penal Code [Chapter 46], in which |
|
|
event the disposition of the weapon is governed by Article 18.18 [of
|
|
|
this code applies]; or |
|
|
(2) [the weapon] is alleged to be stolen property, in |
|
|
which event the disposition of the weapon is governed by Chapter 47 |
|
|
[of this code applies]. |
|
|
(b) When a weapon subject to disposition under [described in
|
|
|
Paragraph (a) of] this article is seized, and the seizure is not |
|
|
made pursuant to a search or arrest warrant, the law enforcement |
|
|
officer [person] seizing the weapon [same] shall prepare and |
|
|
deliver to a magistrate a written inventory of each weapon seized. |
|
|
Regardless of whether a seizure of one or more weapons occurs |
|
|
pursuant to a search or arrest warrant, the law enforcement officer |
|
|
shall provide written notice to the magistrate if any of the weapons |
|
|
are seized from a person taken into custody under Section 573.001, |
|
|
Health and Safety Code. |
|
|
(c) If there is no prosecution or conviction for an offense |
|
|
involving the weapon seized, the magistrate to whom the seizure was |
|
|
reported shall, before the 61st day after the date the magistrate |
|
|
determines that there will be no prosecution or conviction, notify |
|
|
in writing the person found in possession of the weapon that, except |
|
|
as otherwise provided by this subsection, the person is entitled to |
|
|
a return of the seized weapon if, before the 61st day after the date |
|
|
of the notification, the person submits a [upon] written request to |
|
|
the magistrate for the return of the weapon. Unless the weapon was |
|
|
seized from a person taken into custody under Section 573.001, |
|
|
Health and Safety Code, the [The] magistrate shall order the weapon |
|
|
returned to the person found in possession before the 61st day after |
|
|
the date the magistrate receives a written request from the person. |
|
|
If the weapon was seized from a person taken into custody under |
|
|
Section 573.001, Health and Safety Code, the magistrate shall |
|
|
determine, before the 61st day after the date the magistrate |
|
|
receives the person's written request, whether the return of the |
|
|
weapon to the person poses a substantial risk of serious harm to the |
|
|
person or to any other individual or member of the community. If |
|
|
the magistrate determines that the return of the weapon does not |
|
|
pose a substantial risk as described by this subsection, the |
|
|
magistrate shall order that the weapon promptly be returned to the |
|
|
person. |
|
|
(c-1) If a person to whom written notice is provided under |
|
|
Subsection (c) does not submit a written request to the magistrate |
|
|
for the return of the weapon [is not requested] before the 61st day |
|
|
after the date of notification, or if the magistrate determines in |
|
|
accordance with Subsection (c) that the return of the weapon to the |
|
|
person poses a substantial risk as described by that subsection, |
|
|
the magistrate shall, before the 121st day after the date of |
|
|
notification, order the weapon destroyed or forfeited to the state |
|
|
for use by the law enforcement agency holding the weapon or by a |
|
|
county forensic laboratory designated by the magistrate. If the |
|
|
magistrate does not order the return, destruction, or forfeiture of |
|
|
the weapon within the applicable period prescribed by this |
|
|
subsection, the law enforcement agency holding the weapon may |
|
|
request an order of destruction or forfeiture of the weapon from the |
|
|
magistrate. |
|
|
(d) If the [A] person found in possession of a weapon is |
|
|
placed on [either convicted or receiving] deferred adjudication for |
|
|
an offense involving the use of the weapon or is convicted of or |
|
|
placed on deferred adjudication for an offense under Chapter 46, |
|
|
Penal Code, not involving the use of the weapon, the person is |
|
|
entitled to a return of the seized weapon on a written [seized upon] |
|
|
request to the court in which the person was convicted or placed on |
|
|
deferred adjudication, as applicable. However, the court entering |
|
|
the judgment of conviction or order placing the person on deferred |
|
|
adjudication shall order the weapon destroyed or forfeited to the |
|
|
state for use by the law enforcement agency holding the weapon or by |
|
|
a county forensic laboratory designated by the court if: |
|
|
(1) the person does not submit a written request for |
|
|
the return of [request] the weapon before the 61st day after the |
|
|
date of the judgment of conviction or the order placing the person |
|
|
on deferred adjudication; |
|
|
(2) the person has been previously convicted of an |
|
|
offense involving the use of a weapon or an offense under Chapter |
|
|
46, Penal Code; |
|
|
(3) the weapon is [one defined as] a prohibited weapon |
|
|
listed in Section 46.05 [under Chapter 46], Penal Code; |
|
|
(4) the offense for which the person is convicted or |
|
|
placed on [receives] deferred adjudication was committed in or on |
|
|
the premises of a playground, school, video arcade facility, or |
|
|
youth center, as those terms are defined by Section 481.134, Health |
|
|
and Safety Code; or |
|
|
(5) the court determines based on the person's prior |
|
|
criminal history [of the defendant] or based on the circumstances |
|
|
surrounding the commission of the offense that the person's |
|
|
possession of the seized weapon would pose a threat to the community |
|
|
or one or more individuals. |
|
|
(e) If the person found in possession of a weapon is |
|
|
convicted of an offense involving the use of the weapon, before the |
|
|
61st day after the date of conviction, the court entering the |
|
|
judgment of conviction shall order [destruction of] the weapon |
|
|
destroyed or forfeited [forfeiture] to the state for use by the law |
|
|
enforcement agency holding the weapon or by a county forensic |
|
|
laboratory designated by the court. If the court entering the |
|
|
judgment of conviction does not order the destruction or forfeiture |
|
|
of the weapon within the period prescribed by this subsection, the |
|
|
law enforcement agency holding the weapon may request an order of |
|
|
destruction or forfeiture of the weapon from a magistrate. |
|
|
SECTION 2. The change in law made by this Act applies only |
|
|
to the disposition of a weapon that is seized by a law enforcement |
|
|
agency on or after the effective date of this Act. The disposition |
|
|
of a weapon that was seized by a law enforcement agency before the |
|
|
effective date of this Act is covered by the law in effect when the |
|
|
weapon was seized, and the former law is continued in effect for |
|
|
that purpose. |
|
|
SECTION 3. This Act takes effect September 1, 2011. |