By: Hinojosa  S.B. No. 1451
         (In the Senate - Filed March 7, 2013; March 18, 2013, read
  first time and referred to Committee on Criminal Justice;
  April 29, 2013, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 5, Nays 0; April 29, 2013,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1451 By:  Hinojosa
 
 
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.  Subdivisions (1) and (2), Article 59.01, 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.  FORFEITURE OF SUBSTITUTE PROPERTY. (a)  In
  this article, "substitute property" means property:
               (1)  that is not contraband; and
               (2)  that is owned by a person who is or was the owner
  of, or has or had an interest in, contraband with an aggregate value
  of $200,000 or more.
         (b)  Substitute property may be seized under authority of a
  search warrant issued under Subsection (c) if property that is
  contraband:
               (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 or interest holder;
               (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)  is proceeds described by Article 59.01(2)(C) and
  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 substitute property if the officer submits
  an affidavit that states:
               (1)  probable cause for the commission of an offense
  giving rise to forfeiture of contraband;
               (2)  a description of the contraband involved and the
  estimated current fair market value of the substitute property to
  be seized;
               (3)  the reasons the contraband is unavailable for
  forfeiture;
               (4)  probable cause to believe that the owner of the
  substitute property owned or had an interest in contraband with an
  aggregate value of $200,000 or more in connection with the
  commission of an underlying offense giving rise to the forfeiture;
  and
               (5)  that due diligence has been exercised in
  identifying the minimum amount of substitute property necessary to
  approximate the estimated highest fair market value of the
  contraband during the period in which the owner of the substitute
  property owned, or had an interest in, the contraband.
         (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;
               (2)  the highest fair market value of that contraband
  during the period in which the owner of the substitute property
  owned, or had an interest in, the contraband;
               (3)  the fair market value of the substitute property
  at the time it was seized; and
               (4)  that the owner of the substitute property owned or
  had an interest in contraband with an aggregate value of $200,000 or
  more in connection with the commission of an underlying offense
  giving rise to the forfeiture.
         (e)  For purposes of determining the aggregate value of
  contraband under Subsection (c) or (d), the owner or interest
  holder is not required to have simultaneously owned or had an
  interest in all of the property constituting contraband.
         (f)  If the fair market value of the substitute property
  seized exceeds the highest fair market value of the contraband
  described by Subsection (b) during the period in which the owner of
  the substitute property owned, or had an interest in, the
  contraband, 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 an affidavit that identifies
  the amount of the proceeds and that states probable cause that the
  proceeds are contraband subject to forfeiture.  On receiving the
  affidavit, 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;
               (4)  the county in which the proceeds were seized; or
               (5)  Travis County.
         (b)  If the court determines that, based on an examination of
  the affidavit described by Subsection (a), probable cause exists
  for the suit to proceed, the court shall order that citation be
  served on all defendants named in the suit in accordance with the
  Texas Rules of Civil Procedure.
         (c)  Each person who is shown to have been a party to an
  underlying offense for which the proceeds are subject to forfeiture
  is 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 59.02, 59.021,
  59.022, or 59.023, or any combination of those articles. If
  property or proceeds are awarded or forfeited to the state under
  this chapter for an underlying offense, a court may not award or
  forfeit additional property or proceeds that would exceed the
  highest fair market value of the contraband subject to forfeiture
  for that offense.  For purposes of this article, the highest fair
  market value may be calculated at any time during the period in
  which the applicable person owned, possessed, or had an interest in
  the contraband.
         SECTION 4.  Subsection (p), Article 59.06, 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.  Subdivision (4), Section 34.01, Penal Code, is
  amended to read as follows:
               (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.  (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 Section 34.01,
  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 7.  This Act takes effect September 1, 2013.
 
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