83R11013 SCL-F
 
  By: Thompson of Harris H.B. No. 3241
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the civil prosecution of racketeering related to
  trafficking of persons; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Title 6, Civil Practice and Remedies Code, is
  amended by adding Chapter 140 to read as follows:
  CHAPTER 140. CIVIL RACKETEERING RELATED TO TRAFFICKING OF PERSONS
         Sec. 140.001.  DEFINITIONS. In this chapter:
               (1)  "Acquire" means an act to:
                     (A)  possess property;
                     (B)  prevent another person from using that
  person's property or dictate the terms of use of that property;
                     (C)  bring about or receive the transfer of any
  interest in property, whether to oneself or to another person; or
                     (D)  secure performance of a service.
               (2)  "Enterprise" means a legal entity, a group of
  individuals associated in fact, or a combination of entities and
  individuals.
               (3)  "Gain" means a benefit, an interest, or property,
  without reduction for expenses incurred in acquiring or maintaining
  the benefit, interest, or property or incurred for any other
  reason.
               (4)  "Proceeds" means an interest in property acquired
  or derived from, produced or realized through, or directly or
  indirectly caused by an act or omission, and the fruits of the
  interest, in any form.
               (5)  "Racketeering" means an act described by Section
  140.002.
         Sec. 140.002.  CIVIL RACKETEERING. A person or enterprise
  commits racketeering if, for financial gain, the person or
  enterprise commits an offense under Chapter 20A, Penal Code
  (trafficking of persons), and the offense or an element of the
  offense:
               (1)  occurs in more than one county in this state; or
               (2)  is facilitated by the use of United States mail,
  e-mail, telephone, facsimile, or a wireless communication from one
  county in this state to another.
         Sec. 140.003.  SUIT TO ABATE RACKETEERING. (a)  The attorney
  general may bring suit in the name of the state against a person or
  enterprise for racketeering and may seek civil penalties, costs,
  reasonable attorney's fees, and appropriate injunctive relief.
         (b)  This chapter does not authorize suit by a person or
  enterprise that sustains injury as a result of racketeering.
         (c)  A suit under this chapter must be brought in a district
  court in a county in which all or part of the alleged racketeering
  offense giving rise to the suit occurred.
         Sec. 140.004.  INJUNCTIVE RELIEF; OTHER REMEDIES. (a)  A
  court in which a proceeding is brought under this chapter may
  prevent, restrain, and remedy racketeering by issuing appropriate
  orders. The orders may include a temporary restraining order, a
  temporary or permanent injunction, the creation of a receivership,
  and the enforcement of a constructive trust in connection with any
  property or other interest, prejudgment writs of attachment under
  Chapter 61 for the purposes of freezing, preserving, and disgorging
  assets, or another order for a remedy or restraint the court
  considers proper.
         (b)  Following a final determination of liability under this
  chapter, the court may issue an appropriate order, including an
  order that:
               (1)  requires a person to divest any direct or indirect
  interest in an enterprise;
               (2)  imposes reasonable restrictions on the future
  activities or investments of a person that affect the laws of this
  state, including prohibiting a person from engaging in the type of
  endeavor or enterprise that gave rise to the racketeering offense,
  to the extent permitted by the constitutions of this state and the
  United States;
               (3)  requires the dissolution or reorganization of an
  enterprise involved in the suit;
               (4)  orders the recovery of reasonable fees, expenses,
  and costs incurred in obtaining injunctive relief or civil remedies
  or in conducting investigations under this chapter, including court
  costs, attorney's fees, witness fees, and deposition fees;
               (5)  orders payment to the state of an amount equal to:
                     (A)  the gain acquired or maintained through
  racketeering; or
                     (B)  the amount for which a person is liable under
  this chapter;
               (6)  orders payment to the state of a civil penalty by a
  person or enterprise found liable for racketeering, in an amount
  not to exceed $250,000 for each separately alleged and proven act of
  racketeering;
               (7)  orders payment of damages to the state for
  racketeering shown to have materially damaged the state; or
               (8)  orders that property attached under Chapter 61 be
  used to satisfy an award of the court, including damages,
  penalties, costs, and fees.
         (c)  In determining the amount of a civil penalty ordered
  under Subsection (b)(6), the court shall consider:
               (1)  the seriousness of the racketeering offense and
  the consequent financial or personal harm to the state or to any
  identified victim; and
               (2)  the duration of the racketeering activity.
         (d)  If any property attached under Chapter 61 is not
  necessary to satisfy an award of the court after a finding of
  liability for racketeering of the person or enterprise having an
  interest in the property, the court may order that the property be
  disgorged to the state to the extent of the person's or enterprise's
  interest. To be disgorged, the property must be acquired or
  maintained by the person or enterprise through racketeering.
         (e)  In determining the amount of damages ordered under
  Subsection (b)(7), the court shall consider:
               (1)  loss of tax revenue to the state;
               (2)  unpaid state unemployment taxes;
               (3)  unpaid state licensing and regulatory fees;
               (4)  medical and counseling costs incurred by the state
  on behalf of any victim of the racketeering; and
               (5)  other material damage caused to the state by the
  racketeering.
         (f)  Except as otherwise provided by this chapter, remedies
  and awards ordered by a court under this chapter, including costs
  and reasonable attorney's fees, may be assessed against and paid
  from money or property awarded under this chapter.
         (g)  This chapter is not intended to provide the exclusive
  remedy for the activity addressed by this chapter. A proceeding
  under this chapter may be brought in addition to or in the
  alternative of any other civil or criminal action available under
  the laws of this state.
         (h)  Notwithstanding any other provision in this chapter,
  Articles 59.13 and 59.14, Code of Criminal Procedure, apply to a
  remedy under this section.
         (i)  A remedy under this section may not impair a security
  interest in property subject to a bona fide lien.
         Sec. 140.005.  CONSTRUCTIVE TRUST. (a)  A person or
  enterprise that, through racketeering, acquires property or
  prevents another person from receiving property that by law is
  required to be transferred or paid to that person is an involuntary
  trustee. The involuntary trustee or any other person or
  enterprise, other than a bona fide purchaser for value as described
  by Subsection (b), holds the property and the proceeds of the
  property in constructive trust for the benefit of any person
  entitled to remedies under this chapter.
         (b)  A bona fide purchaser for value who was reasonably
  without notice of unlawful conduct and who did not knowingly take
  part in an illegal transaction is not an involuntary trustee under
  Subsection (a) and is not subject to a constructive trust imposed
  under this chapter.
         Sec. 140.006.  EVIDENCE. (a)  In a proceeding under this
  chapter, the state bears the burden of proof by a preponderance of
  the evidence.
         (b)  A person convicted in a criminal proceeding is
  precluded, in a proceeding under this chapter, from subsequently
  denying the essential allegations of the criminal offense of which
  the person was convicted. For purposes of this subsection, a
  verdict or a plea, including a plea of nolo contendere, is
  considered a conviction.
         (c)  An individual may not be held liable under this chapter
  based on the conduct of another person unless the finder of fact
  finds by a preponderance of the evidence that the individual
  authorized, requested, commanded, participated in, ratified, or
  recklessly tolerated the unlawful conduct of the other person.
         (d)  An enterprise may not be held liable under this chapter
  based on the conduct of an agent unless the finder of fact finds by a
  preponderance of the evidence that a director or high managerial
  agent performed, authorized, requested, commanded, participated
  in, ratified, or recklessly tolerated the unlawful conduct of the
  agent.
         (e)  A bank or savings and loan association insured by the
  Federal Deposit Insurance Corporation, a credit union insured by
  the National Credit Union Administration, or the holder of a money
  transmission license as defined by Chapter 151, Finance Code, may
  not be held liable in damages or for other relief under this
  chapter, unless the finder of fact finds by a preponderance of the
  evidence that the person or agent acquiring or maintaining an
  interest in or transporting, transacting, transferring, or
  receiving the funds on behalf of another did so knowing that the
  funds were the proceeds of an offense and that a director or high
  managerial agent performed, authorized, requested, commanded,
  participated in, ratified, or recklessly tolerated the unlawful
  conduct of the person or agent.
         Sec. 140.007.  LIMITATIONS PERIOD. A proceeding may be
  commenced under this chapter only if the proceeding is filed on or
  before the seventh anniversary of the date on which the
  racketeering offense was actually discovered. This section
  supersedes any conflicting provision establishing a shorter period
  of limitations for the same conduct.
         Sec. 140.008.  SPECIAL DOCKETING PROCEDURES. The attorney
  general may file with the clerk of the district court in which a
  proceeding is brought under this chapter a certificate stating that
  the case is of special public importance. The clerk must
  immediately furnish a copy of the certificate to the administrative
  judge of the district court of the county in which the proceeding is
  pending. On receiving the copy of the certificate, the
  administrative judge shall immediately designate a judge to hear
  and determine the proceeding. The designated judge shall promptly
  assign the proceeding for hearing, participate in hearings, make
  determinations, and cause the action to be expedited.
         Sec. 140.009.  NOTICE TO LOCAL PROSECUTOR. (a)  In a
  reasonable time before initiating suit or on initiating an
  investigation on racketeering, the attorney general shall provide
  notice to the district attorney, criminal district attorney, or
  county attorney with felony criminal jurisdiction that appears to
  have primary jurisdiction over the criminal prosecution of any
  target of an investigation under this chapter at the time of the
  notice concerning the attorney general's intent to file suit under
  this chapter or investigate racketeering, as applicable.
         (b)  The notices described by Subsection (a) must describe or
  otherwise identify the defendant to the suit or the suspect, as
  applicable.
         Sec. 140.010.  COOPERATION WITH LOCAL PROSECUTOR. (a) A
  district attorney, criminal district attorney, or county attorney
  with felony criminal jurisdiction that receives notice under
  Section 140.009 may notify the attorney general of a related
  pending criminal investigation or prosecution.
         (b)  On receipt of notice described by Subsection (a), the
  attorney general shall coordinate and cooperate with the district
  attorney, criminal district attorney, or county attorney with
  felony criminal jurisdiction to ensure that the filing of a suit
  under this chapter does not interfere with an ongoing criminal
  investigation or prosecution. The attorney general shall update
  the district attorney, criminal district attorney, or county
  attorney with felony criminal jurisdiction on matters affecting the
  suit or the investigation.
         Sec. 140.011.  ABATEMENT OF SUIT. (a) If the district
  attorney, criminal district attorney, or county attorney with
  felony criminal jurisdiction determines that a suit brought under
  this chapter would interfere with an ongoing criminal investigation
  or prosecution after notifying the attorney general of the
  investigation or prosecution under Section 140.010, the district
  attorney, criminal district attorney, or county attorney with
  felony criminal jurisdiction may request, in writing, that the
  attorney general abate the suit. On receipt of this request, the
  attorney general shall abate the suit.
         (b)  If the attorney general determines that it is necessary
  for the suit to proceed, the attorney general may request for
  permission to proceed from a district court described by Section
  140.003. The attorney general shall provide notice of the request
  to proceed to the district attorney, criminal district attorney, or
  county attorney with felony criminal jurisdiction described by
  Subsection (a).
         (c)  The court may hold a hearing to determine whether to
  grant a request from the attorney general under Subsection (b). The
  attorney general must provide proof by a preponderance of the
  evidence that abatement of a suit brought under this chapter would
  unduly burden the suit. On the request of a party, a hearing under
  this subsection may be conducted in camera to protect the ongoing
  investigation or prosecution, or the identity of the person or
  enterprise under investigation or prosecution.
         Sec. 140.012.  DISPOSITION OF ASSETS. (a) An award issued
  in an action brought under this chapter must be paid in accordance
  with this section.
         (b)  After a deduction of any costs of suit, including
  reasonable attorney's fees and court costs, 80 percent of the
  amount of the award remaining must be paid to the state, and the
  remaining 20 percent must be paid, on a pro rata basis, to each law
  enforcement agency found by the court to have assisted in the suit.
         (c)  The first $10 million, after any costs of suit described
  by Subsection (b), that is paid to the state under this chapter in a
  fiscal year shall be dedicated to the compensation to victims of
  crime fund described by Article 56.54, Code of Criminal Procedure.
         Sec. 140.013.  PREVIOUSLY SEIZED ASSETS. Notwithstanding
  another provision of this chapter, no remedies provided by this
  chapter may be assessed against proceeds, contraband, or other
  property over which a law enforcement agency has previously
  asserted jurisdiction under Chapter 59, Code of Criminal Procedure,
  at the time a suit under this chapter was filed.
         SECTION 2.  Chapter 140, Civil Practice and Remedies Code,
  as added by this Act, applies only to a civil action based on an
  offense under Chapter 20A, Penal Code, committed on or after the
  effective date of this Act. A civil action based on an offense
  committed before the effective date of this Act is governed by the
  law in effect when the offense was committed, and that law continues
  in effect for that purpose. For the 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 3.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2013.