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A BILL TO BE ENTITLED
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AN ACT
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relating to certain proceedings or procedures involving the |
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disposition of certain contraband or abandoned or unclaimed |
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property. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 18.17(d-1), Code of Criminal Procedure, |
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is amended to read as follows: |
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(d-1) Notwithstanding Subsection (a), (b), (c), or (d), if |
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property described by Subsection (a), other than money, is seized |
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by a peace officer at the time the owner of the property is arrested |
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for an offense punishable as a Class C misdemeanor, the law |
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enforcement agency shall [may] provide notice to the owner at the |
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time the owner is taken into or released from custody. On |
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receiving the notice, the owner must sign the notice and attach a |
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thumbprint to the notice. The notice must include: |
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(1) a description of the property being held; |
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(2) the address where the property is being held; and |
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(3) a statement that if the owner does not claim the |
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property before the 31st day after the date the owner is released |
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from custody, the property will be disposed of and the proceeds of |
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the property, after deducting the reasonable expense of keeping and |
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disposing of the property, will be placed in the treasury of the |
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municipality or county providing the notice. |
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SECTION 2. Articles 18.18(b), (e), (f), and (g), Code of |
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Criminal Procedure, are amended to read as follows: |
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(b) If there is no prosecution or conviction following |
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seizure, the magistrate to whom the return was made shall notify in |
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writing the person found in possession of the alleged gambling |
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device or equipment, altered gambling equipment or gambling |
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paraphernalia, gambling proceeds, prohibited weapon, obscene |
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device or material, child pornography, scanning device or |
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re-encoder, criminal instrument, or dog-fighting equipment that |
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the state may initiate a proceeding to destroy or forfeit the |
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property seized and that the person may contest the destruction or |
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forfeiture by appearing before the magistrate on the 30th day after |
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the date the notice was posted [to show cause why the property |
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seized should not be destroyed or the proceeds forfeited]. [The |
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magistrate, on the motion of the law enforcement agency seizing a |
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prohibited weapon, shall order the weapon destroyed or forfeited to |
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the law enforcement agency seizing the weapon, unless a person |
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shows cause as to why the prohibited weapon should not be destroyed |
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or forfeited. A law enforcement agency shall make a motion under |
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this section in a timely manner after the time at which the agency |
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is informed in writing by the attorney representing the state that |
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no prosecution will arise from the seizure.] |
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(e) Any person interested in the alleged gambling device or |
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equipment, altered gambling equipment or gambling paraphernalia, |
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gambling proceeds, prohibited weapon, obscene device or material, |
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child pornography, scanning device or re-encoder, criminal |
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instrument, or dog-fighting equipment seized must appear before the |
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magistrate on the 30th [20th] day following the date the notice was |
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mailed or posted. Failure to timely appear forfeits any interest |
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the person may have in the property or proceeds seized, and no |
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person after failing to timely appear may contest destruction or |
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forfeiture. |
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(f) If a person timely appears before the magistrate in |
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accordance with Subsection (e) [to show cause why the property or |
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proceeds should not be destroyed or forfeited], the magistrate |
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shall conduct a hearing regarding whether the property or proceeds |
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should be destroyed or forfeited [on the issue] and determine the |
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nature of property or proceeds and the person's interest |
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therein. The state has the burden of proving that the state is |
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entitled to destroy or forfeit the property or proceeds by proving |
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[Unless the person proves] by a preponderance of the evidence that |
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the property or proceeds are [is not] gambling equipment, altered |
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gambling equipment, gambling paraphernalia, a gambling device, |
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gambling proceeds, a prohibited weapon, an obscene device or |
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material, child pornography, a criminal instrument, a scanning |
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device or re-encoder, or dog-fighting equipment. If the state |
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proves by a preponderance of the evidence that the state is entitled |
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to destroy or forfeit the property or proceeds [and that he is |
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entitled to possession], the magistrate shall dispose of the |
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property or proceeds in accordance with Subsection [Paragraph] (a) |
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[of this article]. If the state fails to prove by a preponderance |
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of the evidence that the state is entitled to destroy or forfeit the |
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property or proceeds, the property or proceeds, including the |
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interest earned on the proceeds if the proceeds were deposited in an |
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interest-bearing bank account under Article 18.183(a)(1), must be |
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returned to the interested party not later than the 61st day after |
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the date of the magistrate's ruling. |
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(g) For purposes of this article: |
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(1) "criminal instrument" has the meaning defined in |
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the Penal Code; |
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(2) "gambling device or equipment, altered gambling |
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equipment or gambling paraphernalia" has the meaning defined in the |
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Penal Code; |
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(3) "gambling proceeds" means: |
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(A) proceeds gained from the commission of an |
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offense under Chapter 47, Penal Code; and |
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(B) property acquired with proceeds described by |
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Paragraph (A); |
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(4) "prohibited weapon" has the meaning defined in the |
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Penal Code; |
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(5) [(4)] "dog-fighting equipment" means: |
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(A) equipment used for training or handling a |
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fighting dog, including a harness, treadmill, cage, decoy, pen, |
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house for keeping a fighting dog, feeding apparatus, or training |
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pen; |
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(B) equipment used for transporting a fighting |
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dog, including any automobile, or other vehicle, and its |
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appurtenances which are intended to be used as a vehicle for |
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transporting a fighting dog; |
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(C) equipment used to promote or advertise an |
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exhibition of dog fighting, including a printing press or similar |
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equipment, paper, ink, or photography equipment; or |
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(D) a dog trained, being trained, or intended to |
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be used to fight with another dog; |
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(6) [(5)] "obscene device" and "obscene" have the |
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meanings assigned by Section 43.21, Penal Code; |
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(7) [(6)] "re-encoder" has the meaning assigned by |
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Section 522.001, Business & Commerce Code; |
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(8) [(7)] "scanning device" has the meaning assigned |
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by Section 522.001, Business & Commerce Code; and |
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(9) [(8)] "obscene material" and "child pornography" |
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include digital images and the media and equipment on which those |
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images are stored. |
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SECTION 3. Article 18.183, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 18.183. DEPOSIT OR STORAGE OF MONEY PENDING |
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DISPOSITION; CIVIL ACTION. (a) If money is seized by a law |
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enforcement agency in connection with a violation of Chapter 47, |
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Penal Code, the state or the political subdivision of the state that |
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employs the law enforcement agency: |
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(1) may deposit the money in an interest-bearing bank |
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account in the jurisdiction of the agency that made seizure or in |
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the county in which the money was seized until a final judgment is |
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rendered concerning the violation or in a forfeiture proceeding |
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under Article 18.18 arising out of the violation; and |
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(2) if the money is not deposited in an |
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interest-bearing bank account under Subdivision (1), must deposit |
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or store the money in a readily accessible and secure manner until a |
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final judgment is rendered concerning the violation or in a |
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forfeiture proceeding under Article 18.18 arising out of the |
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violation. |
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(b) If a final judgment is rendered concerning a violation |
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of Chapter 47, Penal Code, or in a forfeiture proceeding under |
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Article 18.18 arising out of the violation, money seized in |
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connection with the violation that has been placed in an |
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interest-bearing bank account shall be distributed according to |
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this chapter, with any interest being distributed in the same |
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manner and used for the same purpose as the principal. |
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(c) If the state or a political subdivision of the state |
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fails to comply with Subsection (a)(2), a person may bring a civil |
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action against the state or the political subdivision for damages |
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incurred by the failure. Sovereign immunity of this state and |
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governmental immunity of a political subdivision to suit and from |
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liability are waived to the extent of liability created by this |
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subsection. |
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SECTION 4. The changes in law made by this Act apply only to |
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property or proceeds seized on or after the effective date of this |
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Act. Property or proceeds seized before the effective date of this |
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Act are governed by the law in effect on the date the property or |
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proceeds were seized, and the former law is continued in effect for |
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that purpose. For purposes of this section, property or proceeds |
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were seized before the effective date of this Act if any portion of |
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the property or proceeds were seized before that date. |
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SECTION 5. This Act takes effect September 1, 2023. |