83R6053 MAW-F
 
  By: Sheets H.B. No. 3138
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the prosecution of the offense of money laundering and
  to the forfeiture of certain contraband.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Articles 59.01(1) and (2), Code of Criminal
  Procedure, are amended to read as follows:
               (1)  "Attorney representing the state" means the
  prosecutor with felony jurisdiction in the county in which a
  forfeiture proceeding is held under this chapter or, in a
  proceeding for forfeiture of contraband as defined under
  Subdivision (2)(B)(v) of this article, the city attorney of a
  municipality if the property is seized in that municipality by a
  peace officer employed by that municipality and the governing body
  of the municipality has approved procedures for the city attorney
  acting in a forfeiture proceeding.  In a proceeding for forfeiture
  of contraband as defined under Subdivision (2)(B)(vi)
  [(2)(B)(vii)] of this article, the term includes the attorney
  general.
               (2)  "Contraband" means property of any nature,
  including real, personal, tangible, or intangible, that is:
                     (A)  used in the commission of:
                           (i)  any first or second degree felony under
  the Penal Code;
                           (ii)  any felony under Section 15.031(b),
  20.05, 21.11, 38.04, or Chapter 43, 20A, 29, 30, 31, 32, 33, 33A, or
  35, Penal Code;
                           (iii)  any felony under The Securities Act
  (Article 581-1 et seq., Vernon's Texas Civil Statutes); or
                           (iv)  any offense under Chapter 49, Penal
  Code, that is punishable as a felony of the third degree or state
  jail felony, if the defendant has been previously convicted three
  times of an offense under that chapter;
                     (B)  used or intended to be used in the commission
  of:
                           (i)  any felony under Chapter 481, Health
  and Safety Code (Texas Controlled Substances Act);
                           (ii)  any felony under Chapter 483, Health
  and Safety Code;
                           (iii)  a felony under Chapter 151 [153],
  Finance Code;
                           (iv)  any felony under Chapter 34, Penal
  Code;
                           (v)  a Class A misdemeanor under Subchapter
  B, Chapter 365, Health and Safety Code, if the defendant has been
  previously convicted twice of an offense under that subchapter;
                           (vi)  [any felony under Chapter 152, Finance
  Code;
                           [(vii)]  any felony under Chapter 32, Human
  Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
  involves the state Medicaid program;
                           (vii) [(viii)]  a Class B misdemeanor under
  Chapter 522, Business & Commerce Code;
                           (viii) [(ix)]  a Class A misdemeanor under
  Section 306.051, Business & Commerce Code;
                           (ix) [(x)]  any offense under Section 42.10,
  Penal Code;
                           (x) [(xi)]  any offense under Section
  46.06(a)(1) or 46.14, Penal Code;
                           (xi) [(xii)]  any offense under Chapter 71,
  Penal Code; or
                           (xii) [(xiii)]  any offense under Section
  20.05, Penal Code;
                     (C)  the proceeds gained from the commission of a
  felony listed in Paragraph (A) or (B) of this subdivision, a
  misdemeanor listed in Paragraph (B)(vii), (ix) [(B)(viii)], (x),
  or (xi)[, or (xii)] of this subdivision, or a crime of violence;
                     (D)  acquired with proceeds gained from the
  commission of a felony listed in Paragraph (A) or (B) of this
  subdivision, a misdemeanor listed in Paragraph (B)(vii), (ix)
  [(B)(viii)], (x), or (xi)[, or (xii)] of this subdivision, or a
  crime of violence;
                     (E)  used to facilitate or intended to be used to
  facilitate the commission of a felony under Section 15.031 or
  43.25, Penal Code; or
                     (F)  used to facilitate or intended to be used to
  facilitate the commission of a felony under Section 20A.02 or
  Chapter 43, Penal Code.
         SECTION 2.  Article 59.011, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 59.011.  ELECTION OF FORFEITURE PROCEEDING. If
  property described by Article 59.01(2)(B)(ix), (x), or
  [59.01(2)(B)(x),] (xi)[, or (xii)] is subject to forfeiture under
  this chapter and Article 18.18, the attorney representing the state
  may proceed under either this chapter or that article.
         SECTION 3.  Chapter 59, Code of Criminal Procedure, is
  amended by adding Articles 59.021, 59.022, 59.023, and 59.024 to
  read as follows:
         Art. 59.021.  SUBSTITUTE PROPERTY. (a) In this article,
  "substitute property" means property:
               (1)  that is not contraband;
               (2)  that is owned by a person who is the owner of, or
  has an interest in, property that is contraband; and
               (3)  for which a search warrant is issued under
  Subsection (c).
         (b)  This article applies to contraband that:
               (1)  can no longer be located after the exercise of
  reasonable diligence;
               (2)  has been transferred, conveyed, sold to, or
  deposited with a person other than the owner;
               (3)  is not within the jurisdiction of the court;
               (4)  has substantially diminished in value;
               (5)  has been commingled with other property and cannot
  be readily distinguished or separated; or
               (6)  if the contraband is proceeds described by Article
  59.01(2)(C), was used to acquire other property that is not within
  the jurisdiction of the court.
         (c)  A district court may issue a search warrant authorizing
  a peace officer to seize as substitute property any property of a
  person who is the owner or who has an interest in property that is
  contraband described by Subsection (b), if the officer submits an
  affidavit that states:
               (1)  probable cause for the commission of an offense
  giving rise to forfeiture of contraband;
               (2)  the nature of the contraband involved and the fair
  market value of the substitute property to be seized;
               (3)  the reasons the contraband is unavailable for
  forfeiture; and
               (4)  that due diligence has been exercised in
  identifying the minimum amount of substitute property necessary to
  approximate the fair market value of the contraband described by
  Subsection (b).
         (d)  After seizure of the substitute property, the
  disposition shall proceed as other cases in this chapter except
  that the attorney representing the state must prove by a
  preponderance of the evidence:
               (1)  that the contraband described by Subsection (b)
  was subject to seizure and forfeiture under this chapter; and
               (2)  the fair market value of that contraband.
         (e)  If the fair market value of the substitute property
  seized exceeds the fair market value of the contraband described by
  Subsection (b), the court shall make appropriate orders to ensure
  that property equal in value to the excess is returned to the person
  or persons from whom the substitute property was seized.
         Art. 59.022.  PROPERTY REMOVED FROM THIS STATE. (a) This
  article applies to contraband, other than real property, that is
  determined to be located outside of this state.
         (b)  A peace officer who identifies contraband described by
  Subsection (a) shall provide the attorney representing the state a
  sworn statement that identifies the contraband and the reasons the
  contraband is subject to seizure. On receiving the sworn statement,
  the attorney representing the state may file, in the name of the
  state, a notice of intended forfeiture in a district court in:
               (1)  the county in which the contraband, or proceeds
  used to acquire the contraband, was known to be situated before its
  removal out of this state;
               (2)  the county in which any owner or possessor of the
  contraband was prosecuted for an underlying offense for which the
  property is subject to forfeiture;
               (3)  the county in which venue existed for prosecution
  of an underlying offense for which the property is subject to
  forfeiture; or
               (4)  Travis County.
         (c)  The attorney representing the state shall request that
  citation be served on any person who owns or is in possession or
  control of the contraband to which this article applies and, on
  service in accordance with the Texas Rules of Civil Procedure, may
  move to have the court order that the contraband be:
               (1)  returned or brought to the jurisdiction of the
  court; or
               (2)  delivered to an agent of this state for
  transportation to the jurisdiction of the court.
         (d)  The attorney representing the state is entitled to all
  reasonable discovery in accordance with the Texas Rules of Civil
  Procedure to assist in identifying and locating contraband
  described by Subsection (a).
         (e)  If the court orders the return of contraband under this
  article, the contraband, after return, is subject to seizure and
  forfeiture as otherwise provided by this chapter.
         (f)  If it is found that any person after being served with a
  citation under Subsection (c) has transported, concealed, disposed
  of, or otherwise acted to prevent the seizure and forfeiture of
  contraband described by Subsection (a), the court may:
               (1)  order the payment to the attorney representing the
  state of costs incurred in investigating and identifying the
  location of the contraband, including discovery costs, reasonable
  attorney's fees, expert fees, other professional fees incurred by
  the attorney, and travel expenses;
               (2)  enter a judgment for civil contempt and impose:
                     (A)  a fine of not more than $10,000 or less than
  $1,000;
                     (B)  confinement in jail for a term of not more
  than 30 days or less than 10 days; or
                     (C)  both fine and confinement;
               (3)  enter a judgment of forfeiture of the person's
  interest in the contraband;
               (4)  enter a judgment in the amount of the fair market
  value of the contraband;
               (5)  impose a civil penalty of not more than $25,000 or
  less than $1,000 for each item of contraband, or each separate fund,
  of which the person transported, concealed, disposed, or otherwise
  acted to prevent the seizure and forfeiture; or
               (6)  order any combination of Subdivisions (1) through
  (5).
         Art. 59.023.  SUIT FOR PROCEEDS. (a) A peace officer who
  identifies proceeds that are gained from the commission of an
  offense listed in Article 59.01(2)(A) or (B) shall provide the
  attorney representing the state with a sworn statement that
  identifies the amount of the proceeds. On receiving the sworn
  statement, the attorney representing the state may file for a
  judgment in the amount of the proceeds in a district court in:
               (1)  the county in which the proceeds were gained;
               (2)  the county in which any owner or possessor of the
  property was prosecuted for an underlying offense for which the
  property is subject to forfeiture;
               (3)  the county in which venue existed for prosecution
  of an underlying offense for which the property is subject to
  forfeiture; or
               (4)  Travis County.
         (b)  Each person who is shown to have been a party to an
  underlying offense for which the proceeds are subject to forfeiture
  are jointly and severally liable in a suit under this article,
  regardless of whether the person has been charged for the offense.
         Art. 59.024.  MULTIPLE RECOVERY PROHIBITED. The attorney
  representing the state may proceed under Article 59.021, 59.022, or
  59.023, or any combination of those articles. The attorney
  representing the state may not obtain multiple recoveries with
  respect to the same conduct or proceeds. If the attorney
  representing the state seeks recovery in more than one suit, the
  attorney shall notify each court that other litigation concerning
  the same subject matter or conduct is proceeding in other cases.
         SECTION 4.  Article 59.06(p), Code of Criminal Procedure, is
  amended to read as follows:
         (p)  Notwithstanding Subsection (a), and to the extent
  necessary to protect the commission's ability to recover amounts
  wrongfully obtained by the owner of the property and associated
  damages and penalties to which the commission may otherwise be
  entitled by law, the attorney representing the state shall transfer
  to the Health and Human Services Commission all forfeited property
  defined as contraband under Article 59.01(2)(B)(vi)
  [59.01(2)(B)(vii)]. If the forfeited property consists of property
  other than money or negotiable instruments, the attorney
  representing the state may, if approved by the commission, sell the
  property and deliver to the commission the proceeds from the sale,
  minus costs attributable to the sale. The sale must be conducted in
  a manner that is reasonably expected to result in receiving the fair
  market value for the property.
         SECTION 5.  Section 34.01, Penal Code, is amended by
  amending Subdivisions (1) and (4) and adding Subdivision (1-a) to
  read as follows:
               (1)  "Bank Secrecy Act" means the Bank Secrecy Act (31
  U.S.C. Section 5311 et seq.), and its implementing regulations set
  forth at 31 C.F.R. Part 103.
               (1-a)  "Criminal activity" means any offense,
  including any preparatory offense, that is:
                     (A)  classified as a felony under the laws of this
  state or the United States; [or]
                     (B)  punishable by confinement for more than one
  year under the laws of another state; or
                     (C)  a violation of the Bank Secrecy Act.
               (4)  "Proceeds" means funds acquired or derived
  directly or indirectly from, produced through, [or] realized
  through, or used in the commission of:
                     (A)  an act; or
                     (B)  conduct that constitutes an offense under
  Section 151.7032, Tax Code.
         SECTION 6.  Section 34.02(a), Penal Code, is amended to read
  as follows:
         (a)  A person commits an offense if the person knowingly:
               (1)  acquires or maintains an interest in, conceals,
  possesses, transfers, or transports the proceeds of criminal
  activity;
               (2)  conducts, supervises, or facilitates a
  transaction involving the proceeds of criminal activity;
               (3)  invests, expends, or receives, or offers to
  invest, expend, or receive, the proceeds of criminal activity or
  funds that the person believes are the proceeds of criminal
  activity; [or]
               (4)  finances or invests or intends to finance or
  invest funds that the person believes are intended to further the
  commission of criminal activity; or
               (5)  conducts, supervises, or facilitates a
  transaction in violation of the Bank Secrecy Act.
         SECTION 7.  (a)  The change in law made by this Act to Chapter
  59, Code of Criminal Procedure, applies only to the forfeiture of
  property in relation to an offense committed on or after the
  effective date of this Act. Forfeiture of property in relation to
  an offense committed before the effective date of this Act is
  governed by the law in effect when the offense was committed, and
  the former law is continued in effect for that purpose.
         (b)  The change in law made by this Act to Chapter 34, Penal
  Code, applies only to an offense committed on or after the effective
  date of this Act. An offense committed before the effective date of
  this Act is governed by the law in effect on the date the offense was
  committed, and the former law is continued in effect for that
  purpose.
         (c)  For purposes of this section, an offense was committed
  before the effective date of this Act if any element of the offense
  occurred before that date.
         SECTION 8.  This Act takes effect September 1, 2013.