Bill Text: TX HB3241 | 2013-2014 | 83rd Legislature | Enrolled
Bill Title: Relating to the civil prosecution of racketeering related to trafficking of persons; providing penalties.
Spectrum: Slight Partisan Bill (Republican 5-3)
Status: (Passed) 2013-06-14 - Effective immediately [HB3241 Detail]
Download: Texas-2013-HB3241-Enrolled.html
H.B. No. 3241 |
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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. 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. | ||
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, district attorney's office, criminal district | ||
attorney's office, and office of a county attorney with felony | ||
criminal jurisdiction 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. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 3241 was passed by the House on May 4, | ||
2013, by the following vote: Yeas 129, Nays 0, 2 present, not | ||
voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 3241 was passed by the Senate on May | ||
22, 2013, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: _____________________ | ||
Date | ||
_____________________ | ||
Governor |