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