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A BILL TO BE ENTITLED
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AN ACT
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relating to criminal asset forfeiture, the disposition of proceeds |
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and property from criminal asset forfeiture, and accountability for |
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that disposition; providing civil penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 59.03, Code of Criminal Procedure, is |
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amended by amending Subsection (d) and adding Subsection (e) to |
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read as follows: |
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(d) A person in the possession of property at the time a |
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peace officer seizes the property under this chapter may at the time |
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of seizure assert the person's interest in or right to the property. |
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A peace officer, including the peace officer who seizes the
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property, [under this chapter] may not [at the time of seizure]
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request, require, or in any manner induce any person, including a |
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person who asserts an interest in or right to the property [seized],
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to execute a document purporting to waive the person's interest in |
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or rights to [the] property seized under this chapter.
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(e) At any time before notice is filed under Article |
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59.04(b), an attorney representing the state may not request, |
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require, or in any manner induce any person, including a person who |
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asserts an interest in or right to property seized under this |
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chapter, to execute a document purporting to waive the person's |
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interest in or rights to the property. |
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SECTION 2. Article 59.06, Code of Criminal Procedure, is |
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amended by adding Subsections (c-2), (d-1), and (d-2) and amending |
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Subsections (d) and (g) to read as follows: |
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(c-2) Any postjudgment interest from money, securities, |
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negotiable instruments, stocks or bonds, or things of value, or |
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proceeds from the sale of those items, that are deposited in an |
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interest-bearing bank account under Subsection (c) shall be used |
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for the same purpose as the principal. |
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(d) Proceeds awarded under this chapter to a law enforcement |
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agency or to the attorney representing the state may be spent by the |
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agency or the attorney after a budget for the expenditure of the |
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proceeds has been submitted to the commissioners court or governing |
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body of the municipality. The budget must be detailed and clearly |
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list and define the categories of expenditures, but may not list |
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details that would endanger the security of an investigation or |
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prosecution. Expenditures are subject to the audit and enforcement
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provisions established under this chapter [article]. A
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commissioners court or governing body of a municipality may not use |
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the existence of an award to offset or decrease total salaries, |
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expenses, and allowances that the agency or the attorney receives |
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from the commissioners court or governing body at or after the time |
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the proceeds are awarded. |
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(d-1) The head of a law enforcement [the] agency or an
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attorney representing the state may not use proceeds or property |
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received under this chapter to: |
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(1) contribute to a political campaign; |
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(2) make a donation to any entity, except as provided |
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by Subsection (d-2); |
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(3) pay expenses related to the training or education |
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of any member of the judiciary; |
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(4) pay any travel expenses related to attendance at |
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training or education seminars if the expenses violate generally |
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applicable restrictions established by the commissioners court or |
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governing body of the municipality, as applicable; |
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(5) purchase alcoholic beverages; |
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(6) make any expenditure not approved by the |
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commissioners court or governing body of the municipality, as |
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applicable, if the head of a law enforcement agency or attorney |
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representing the state holds an elective office and: |
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(A) the deadline for filing an application for a |
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place on the ballot as a candidate for reelection to that office in |
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the general primary election has passed and the person did not file |
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an application for a place on that ballot; or |
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(B) during the person's current term of office, |
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the person was a candidate in a primary, general, or runoff election |
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for reelection to that office and was not the prevailing candidate |
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in that election; or |
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(7) [the existence of an award to] increase a salary,
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expense, or allowance for an employee of the law enforcement agency |
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or attorney representing the state [or agency] who is budgeted by
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the commissioners court or governing body of the municipality
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unless the commissioners court or governing body first approves the |
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increase [expenditure].
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(d-2) The head of a law enforcement agency or an attorney |
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representing the state may use as an official purpose of the agency |
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or attorney proceeds or property received under this chapter to |
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make a donation to an entity that assists in: |
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(1) the detection, investigation, or prosecution of: |
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(A) criminal offenses; or |
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(B) instances of abuse, as defined by Section |
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261.001, Family Code; |
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(2) the provision of: |
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(A) mental health, drug, or rehabilitation |
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services; or |
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(B) services for victims or witnesses of criminal |
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offenses or instances of abuse described by Subdivision (1); or |
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(3) the provision of training or education related to |
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duties or services described by Subdivision (1) or (2). |
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(g)(1) All law enforcement agencies and attorneys |
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representing the state who receive proceeds or property under this |
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chapter shall account for the seizure, forfeiture, receipt, and |
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specific expenditure of all the [such] proceeds and property in an
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audit, which is to be performed annually by the commissioners court |
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or governing body of a municipality, as appropriate. The annual |
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period of the audit for a law enforcement agency is the fiscal year |
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of the appropriate county or municipality and the annual period for |
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an attorney representing the state is the state fiscal year. The |
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audit must [shall] be completed on a form provided by the attorney
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general and must include a detailed report and explanation of all |
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expenditures, including salaries and overtime pay, officer |
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training, investigative equipment and supplies, and other items.
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Certified copies of the audit shall be delivered by the law |
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enforcement agency or attorney representing the state to [the |
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comptroller's office and] the attorney general not later than the
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60th day after the date on which the annual period that is the |
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subject of the audit ends. |
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(2) If a copy of the audit is not delivered to the |
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attorney general within the period required by Subdivision (1), |
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within five days after the end of the period the attorney general |
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shall notify the law enforcement agency or the attorney |
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representing the state of that fact. On a showing of good cause, |
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the attorney general may grant an extension permitting the agency |
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or attorney to deliver a copy of the audit after the period required |
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by Subdivision (1) and before the 76th day after the date on which |
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the annual period that is the subject of the audit ends. If the law |
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enforcement agency or the attorney representing the state fails to |
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establish good cause for not delivering the copy of the audit within |
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the period required by Subdivision (1) or fails to deliver a copy of |
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an audit within the extension period, the attorney general shall |
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notify the comptroller of that fact. |
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(3) On notice under Subdivision (2) [this |
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subdivision], the comptroller shall perform the audit otherwise
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required by Subdivision (1). At the conclusion of the audit, the |
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comptroller shall forward a copy of the audit to the attorney |
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general. The law enforcement agency or attorney representing the |
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state is liable to the comptroller for the costs of the comptroller |
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in performing the audit. |
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SECTION 3. Chapter 59, Code of Criminal Procedure, is |
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amended by adding Articles 59.061 and 59.062 to read as follows: |
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Art. 59.061. AUDITS AND INVESTIGATIONS. (a) The state |
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auditor may at any time perform an audit or conduct an |
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investigation, in accordance with this article and Chapter 321, |
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Government Code, related to the seizure, forfeiture, receipt, and |
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specific expenditure of proceeds and property received under this |
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chapter. |
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(b) The state auditor is entitled at any time to access any |
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book, account, voucher, confidential or nonconfidential report, or |
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other record of information, including electronic data, maintained |
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under Article 59.06, except that if the release of the applicable |
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information is restricted under state or federal law, the state |
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auditor may access the information only with the approval of a court |
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or federal administrative agency, as appropriate. |
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(c) If the results of an audit or investigation under this |
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article indicate that a law enforcement agency or attorney |
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representing the state has knowingly violated or is knowingly |
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violating a provision of this chapter relating to the disposition |
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of proceeds or property received under this chapter, the state |
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auditor shall promptly notify the attorney general for the purpose |
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of initiating appropriate enforcement proceedings under Article |
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59.062. |
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Art. 59.062. ENFORCEMENT. (a) In the name of the state, |
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the attorney general may institute in a district court in Travis |
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County or in a county served by the law enforcement agency or |
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attorney representing the state, as applicable, a suit for |
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injunctive relief, to recover a civil penalty, or for both |
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injunctive relief and a civil penalty if the results of an audit or |
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investigation under Article 59.061 indicate that the law |
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enforcement agency or attorney representing the state has knowingly |
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violated or is knowingly violating a provision of this chapter |
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relating to the disposition of proceeds or property received under |
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this chapter. |
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(b) On application for injunctive relief and a finding that |
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the law enforcement agency or attorney representing the state is |
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knowingly violating a provision of this chapter relating to the |
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disposition of proceeds or property received under this chapter, |
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the district court shall grant the injunctive relief the facts may |
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warrant, without requirement for bond. |
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(c) A law enforcement agency or attorney representing the |
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state who knowingly commits a violation described by Subsection (a) |
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is liable to the state for a civil penalty in an amount not to exceed |
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$100,000 as determined by the district court to be appropriate for |
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the nature and seriousness of the violation. In determining an |
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appropriate penalty for the violation, the court shall consider: |
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(1) any previous violations committed by the agency or |
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attorney; |
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(2) the seriousness of the violation, including the |
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nature, circumstances, extent, and gravity of the violation; |
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(3) the demonstrated good faith of the agency or |
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attorney; and |
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(4) the amount necessary to deter future violations. |
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(d) If the attorney general brings a suit under this article |
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and an injunction is granted or a civil penalty is imposed, the |
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attorney general may recover reasonable expenses, court costs, |
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investigative costs, and attorney's fees. |
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(e) Notwithstanding any other provision of this article, a |
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law enforcement agency or attorney representing the state ordered |
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to pay a civil penalty, expense, cost, or fee under this article |
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shall make the payment out of money available in any fund |
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established by the agency or attorney, as applicable, for the |
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purpose of administering proceeds or property received under this |
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chapter. If sufficient money is not available to make payment in |
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full at the time the court enters an order requiring payment, the |
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agency or attorney shall continue to make payments out of money |
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available in any fund described by this subsection until the |
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payment is made in full. |
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(f) A civil penalty collected under this article shall be |
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deposited to the credit of the drug court account in the general |
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revenue fund to help fund drug court programs established under |
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Chapter 469, Health and Safety Code. |
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(g) A law enforcement agency or attorney representing the |
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state is immune from liability under this article if the agency or |
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attorney reasonably relied on: |
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(1) the advice, consent, or approval of an entity that |
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conducts an audit of the agency or attorney under this chapter; or |
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(2) a written opinion of the attorney general relating |
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to: |
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(A) the statute or other provision of law the |
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agency or attorney is alleged to have knowingly violated; or |
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(B) a fact situation that is substantially |
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similar to the fact situation in which the agency or attorney is |
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involved. |
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SECTION 4. The changes in law made by this Act in amending |
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Article 59.03, Code of Criminal Procedure, apply only to property |
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seized on or after the effective date of this Act. Property seized |
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before the effective date of this Act is covered by the law in |
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effect when the property was seized, and the former law is continued |
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in effect for that purpose. For purposes of this section, property |
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was seized before the effective date of this Act if any portion of |
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the property was seized before that date. |
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SECTION 5. Except as provided by Section 6 of this Act, the |
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changes in law made by this Act in amending Article 59.06, Code of |
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Criminal Procedure, apply to the disposition or use, on or after the |
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effective date of this Act, of proceeds or property received by a |
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law enforcement agency or attorney representing the state under |
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Chapter 59, Code of Criminal Procedure, regardless of whether the |
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receipt of the proceeds or property occurred before, on, or after |
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the effective date of this Act. |
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SECTION 6. The changes in law made by this Act in amending |
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Subsection (g), Article 59.06, Code of Criminal Procedure, and |
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adding Articles 59.061 and 59.062, Code of Criminal Procedure, |
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apply to any audit performed on or after the effective date of this |
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Act. |
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SECTION 7. This Act takes effect September 1, 2011. |