82R12521 SJM-F

By: Williams S.B. No. 1701

A BILL TO BE ENTITLED

AN ACT

relating to procedures for and evidence that may be presented at a criminal asset forfeiture hearing and to the forfeiture of substitute assets under certain circumstances.

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

SECTION 1. Article 59.05, Code of Criminal Procedure, is amended by adding Subsections (b-1) and (b-2) and amending Subsection (e) to read as follows:

(b-1) A rebuttable presumption that property is subject to forfeiture is established if the state shows by a preponderance of the evidence that:

(1) the conduct giving rise to the forfeiture occurred; and

(2) the conduct giving rise to the forfeiture is the only likely source of the property subject to forfeiture or provides the only likely explanation for that property.

(b-2) In a hearing conducted under this article, a court may not suppress evidence solely because the evidence was acquired pursuant to a search or seizure that violated the rights of the owner or interest holder under the Constitution of the United States or of the State of Texas.

(e)(1) It is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.

(2) If the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state, with the attorney representing the state as the agent for the state, except that if the court finds that the nonforfeitable interest of an interest holder in the property is valued in an amount greater than or substantially equal to the present value of the property, the court shall order the property released to the interest holder.

(3) If the court finds that the nonforfeitable interest of an interest holder is valued in an amount substantially less than the present value of the property and that the property is subject to forfeiture, the court shall order the property forfeited to the state with the attorney representing the state acting as the agent of the state, and making necessary orders to protect the nonforfeitable interest of the interest holder.

(4) The court may order the forfeiture of any other property of a person that otherwise is not subject to forfeiture under this article if the court finds that property of the person that has been forfeited under this subsection, as a result of an act or omission of the person:

(A) cannot be located on exercise of due diligence;

(B) has been transferred, conveyed, or sold to or deposited with a third party;

(C) has been placed beyond the jurisdiction of the court;

(D) has been substantially diminished in value; or

(E) has been commingled with other property and cannot be separated without difficulty.

(5) In ordering the forfeiture of substitute assets under Subdivision (4), the court may not order the forfeiture of property with a value greater than the value of the property originally ordered forfeited by the court.

(6) On final judgment of forfeiture, the attorney representing the state shall dispose of the property in the manner required by Article 59.06 of this code.

SECTION 2. (a) The change in law made by this Act in adding Articles 59.05(b-1) and (b-2), Code of Criminal Procedure, applies only to a forfeiture proceeding that begins on or after the effective date of this Act. A forfeiture proceeding that begins before the effective date of this Act is governed by the law in effect on the date the proceeding begins, and the former law is continued in effect for that purpose.

(b) The change in law made by this Act in amending Article 59.05(e), Code of Criminal Procedure, authorizes a court to order the forfeiture of substitute assets for any property originally ordered forfeited by the court, regardless of whether the original order of forfeiture occurred before, on, or after the effective date of this Act.

SECTION 3. This Act takes effect September 1, 2011.