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A BILL TO BE ENTITLED
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AN ACT
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relating to the expenditure of proceeds and property from and the |
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state's burden of proof in asset forfeiture proceedings under the |
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Code of Criminal Procedure. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 59.02, Code of Criminal Procedure, is |
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amended by amending Subsection (c) and adding Subsection (c-1) to |
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read as follows: |
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(c) An owner or interest holder's interest in property may |
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not be forfeited under this chapter if the owner or interest holder |
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[proves by a preponderance of the evidence that the owner or
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interest holder] acquired and perfected the interest: |
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(1) before or during the act or omission giving rise to |
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forfeiture or, if the property is real property, the owner or |
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interest holder [he] acquired an ownership interest, security |
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interest, or lien interest before a lis pendens notice was filed |
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under Article 59.04(g), [of this code] and did not know or should |
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not reasonably have known of the act or omission giving rise to the |
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forfeiture or that it was likely to occur at or before the time of |
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acquiring and perfecting the interest or, if the property is real |
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property, at or before the time of acquiring the ownership |
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interest, security interest, or lien interest; or |
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(2) after the act or omission giving rise to the |
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forfeiture, but before the seizure of the property, and only if the |
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owner or interest holder: |
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(A) was, at the time that the interest in the |
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property was acquired, an owner or interest holder for value; and |
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(B) was without reasonable cause to believe that |
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the property was contraband and did not purposefully avoid learning |
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that the property was contraband. |
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(c-1) The state has the burden of proving by clear and |
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convincing evidence that the circumstances described by Subsection |
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(c) do not apply to property that is subject to seizure and |
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forfeiture under this chapter. |
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SECTION 2. Article 59.02(h), Code of Criminal Procedure, is |
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amended by amending Subdivision (1) and adding Subdivision (1-a) to |
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read as follows: |
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(1) An owner or interest holder's interest in property |
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may not be forfeited under this chapter if [at the forfeiture
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hearing the owner or interest holder proves by a preponderance of
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the evidence that] the owner or interest holder was not a party to |
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the offense giving rise to the forfeiture and [that] the |
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contraband: |
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(A) was stolen from the owner or interest holder |
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before being used in the commission of the offense giving rise to |
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the forfeiture; |
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(B) was purchased with: |
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(i) money stolen from the owner or interest |
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holder; or |
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(ii) proceeds from the sale of property |
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stolen from the owner or interest holder; or |
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(C) was used or intended to be used without the |
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effective consent of the owner or interest holder in the commission |
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of the offense giving rise to the forfeiture. |
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(1-a) The state has the burden of proving by clear and |
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convincing evidence that the circumstances described by |
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Subdivision (1) do not apply to property that is subject to seizure |
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and forfeiture under this chapter. |
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SECTION 3. Article 59.021(d), Code of Criminal Procedure, |
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is amended to read as follows: |
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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 clear and |
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convincing [a 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; |
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(2) the highest fair market value of that contraband |
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during the period in which the owner of the substitute property |
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owned, or had an interest in, the contraband; |
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(3) the fair market value of the substitute property |
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at the time it was seized; and |
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(4) that the owner of the substitute property owned or |
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had an interest in contraband with an aggregate value of $200,000 or |
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more in connection with the commission of an underlying offense |
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giving rise to the forfeiture. |
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SECTION 4. Article 59.05(b), Code of Criminal Procedure, is |
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amended to read as follows: |
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(b) All cases under this chapter shall proceed to trial in |
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the same manner as in other civil cases. The state has the burden of |
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proving by clear and convincing [a preponderance of the] evidence |
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that property is subject to forfeiture. |
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SECTION 5. Article 59.06, Code of Criminal Procedure, is |
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amended by amending Subsections (d) and (d-1) and adding Subsection |
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(d-5) to read as follows: |
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(d) Proceeds and property awarded under this chapter to a |
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law enforcement agency or to the attorney representing the state |
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may be spent by the agency or the attorney only after a budget for |
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the expenditure of the proceeds and property has been submitted to |
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the commissioners court or governing body of the municipality and |
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the commissioners court or governing body approves the expenditure |
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in the manner provided by Subsection (d-5). The budget must be |
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detailed and clearly list and define the categories of |
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expenditures, but may not list details that would endanger the |
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security of an investigation or prosecution. Expenditures are |
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subject to the audit and enforcement provisions established under |
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this chapter. A commissioners court or governing body of a |
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municipality may not use the existence of an award to offset or |
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decrease total salaries, expenses, and allowances that the agency |
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or the attorney receives from the commissioners court or governing |
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body at or after the time the award of proceeds or property is made |
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[are awarded]. |
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(d-1) The head of a law enforcement agency or an attorney |
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representing the state may not use proceeds or property received |
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under this chapter to: |
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(1) contribute to a political campaign; |
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(2) make a donation to any entity, except as provided |
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by Subsection (d-2); |
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(3) pay expenses related to the training or education |
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of any member of the judiciary; |
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(4) pay any travel expenses related to attendance at |
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training or education seminars if the expenses violate generally |
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applicable restrictions established by the commissioners court or |
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governing body of the municipality, as applicable; |
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(5) purchase alcoholic beverages; |
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(6) pay for a recurring expense [make any expenditure
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not approved by the commissioners court or governing body of the
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municipality, as applicable, if the head of a law enforcement
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agency or attorney representing the state holds an elective office
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and:
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[(A)
the deadline for filing an application for a
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place on the ballot as a candidate for reelection to that office in
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the general primary election has passed and the person did not file
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an application for a place on that ballot; or
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[(B)
during the person's current term of office,
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the person was a candidate in a primary, general, or runoff election
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for reelection to that office and was not the prevailing candidate
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in that election]; or |
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(7) pay [increase] a salary [, expense, or allowance] |
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for an employee of the law enforcement agency or attorney |
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representing the state [who is budgeted by the commissioners court
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or governing body of the municipality unless the commissioners
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court or governing body first approves the increase]. |
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(d-5) A commissioners court or governing body of a |
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municipality may approve an expenditure of proceeds or property |
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under this chapter only at an open meeting under Chapter 551, |
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Government Code. Each expenditure must be approved by a separate |
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vote of the commissioners court or governing body. The |
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commissioners court or governing body shall include in the written |
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notice of any meeting in which the commissioners court or governing |
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body will consider an expenditure described by this subsection: |
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(1) a description of the expenditure; |
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(2) the purpose of the expenditure; and |
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(3) the amount of the expenditure. |
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SECTION 6. Article 59.061, Code of Criminal Procedure, is |
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amended by amending Subsection (a) and adding Subsection (a-1) to |
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read as follows: |
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(a) The state auditor may at any time [perform an audit or] |
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conduct an investigation, in accordance with this article and |
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Chapter 321, Government Code, related to the seizure, forfeiture, |
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receipt, and specific expenditure of proceeds and property received |
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under this chapter. |
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(a-1) At least annually, the state auditor shall perform an |
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audit of each law enforcement agency or attorney representing the |
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state, in accordance with this article and Chapter 321, Government |
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Code, that is related to the seizure, forfeiture, receipt, and |
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specific expenditure of proceeds and property received under this |
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chapter by the agency or attorney. |
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SECTION 7. The changes in law made by this Act to Article |
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59.06, Code of Criminal Procedure, apply only to the expenditure of |
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proceeds or property by a law enforcement agency or attorney |
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representing the state on or after the effective date of this Act. |
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The expenditure of proceeds or property by a law enforcement agency |
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or attorney representing the state before the effective date of |
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this Act is governed by the law in effect on the date the |
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expenditure was made, and the former law is continued in effect for |
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that purpose. |
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SECTION 8. The changes in law made by this Act to Articles |
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59.02, 59.021, and 59.05, Code of Criminal Procedure, apply only to |
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a forfeiture proceeding that begins on or after the effective date |
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of this Act. A forfeiture proceeding that begins before the |
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effective date of this Act is governed by the law in effect on the |
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date the proceeding begins, and the former law is continued in |
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effect for that purpose. |
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SECTION 9. This Act takes effect September 1, 2017. |