By: Williams  S.B. No. 1701
         (In the Senate - Filed March 11, 2011; March 23, 2011, read
  first time and referred to Committee on Transportation and Homeland
  Security; March 31, 2011, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 8, Nays 0;
  March 31, 2011, sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1701 By:  Williams
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to a criminal asset forfeiture hearing in which substitute
  assets are forfeited under certain circumstances.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subsection (e), Article 59.05, Code of Criminal
  Procedure, is amended to read as follows:
         (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.  The change in law made by this Act in amending
  Subsection (e), Article 59.05, 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.
 
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