Bill Text: TX HB3171 | 2015-2016 | 84th Legislature | Introduced

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Bill Title: Relating to repealing civil asset forfeiture provisions and establishing criminal asset forfeiture in this state.

Spectrum: Slight Partisan Bill (Democrat 16-10)

Status: (Introduced - Dead) 2015-04-15 - Left pending in committee [HB3171 Detail]

Download: Texas-2015-HB3171-Introduced.html

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84R10933 MAW-F
By: Simpson H.B. No. 3171

A BILL TO BE ENTITLED
AN ACT
relating to repealing civil asset forfeiture provisions and
establishing criminal asset forfeiture in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 59A to read as follows:
CHAPTER 59A. CRIMINAL ASSET FORFEITURE
Art. 59A.001. DEFINITIONS. In this chapter:
(1) "Abandoned property" means personal property left
by an owner who has intentionally relinquished all rights to its
control.
(2) "Actual knowledge" means direct and clear
awareness of information, facts, or conditions.
(3) "Constructive knowledge" means knowledge that is
imputed to family or household members of the defendant if the
defendant admitted guilt or was adjudicated guilty three or more
times for the same or a similar offense in the 10 years preceding an
alleged offense.
(4) "Contraband" means tangible or intangible goods,
including scheduled drugs without a valid prescription, the
importation, exportation, or possession of which is illegal.
(5) "Conveyance" means a device used for
transportation. The term includes a motor vehicle, trailer,
snowmobile, airplane, or vessel, and any attached equipment. The
term does not include stolen property.
(6) "Department" means the Department of Public
Safety.
(7) "Instrumentality" means property that is
otherwise lawful to possess and that is used in the furtherance or
commission of an offense of a law subject to forfeiture. The term
includes land, buildings, containers, conveyances, equipment,
materials, products, computer hardware or software,
telecommunications devices, firearms, ammunition, tools, and
money, securities, negotiable instruments, or other means of
exchange.
(8) "Law enforcement agency" means a law enforcement
agency of this state or a political subdivision of this state that
has authority under state law to engage in seizure and forfeiture.
(9) "Law subject to forfeiture" means a felony offense
under state law, the punishment for which explicitly authorizes
forfeiture.
Art. 59A.002. PURPOSE. The purpose of this chapter is to:
(1) deter criminal activity by reducing its economic
incentives;
(2) increase the pecuniary loss from criminal
activity;
(3) protect against the wrongful forfeiture of
property; and
(4) ensure that only criminal forfeiture is allowed in
this state.
Art. 59A.003. CRIMINAL ASSET FORFEITURE; PROPERTY SUBJECT
TO FORFEITURE. The convicting court may order a person convicted of
violating a law subject to forfeiture to forfeit:
(1) property the person derived from the commission of
the offense;
(2) property directly traceable to property derived
from the commission of the offense; or
(3) instrumentalities the person used in the
commission of the offense.
Art. 59A.004. EXEMPT PROPERTY. Property that is homestead
property, a motor vehicle valued at less than $10,000, and United
States currency totaling $200 or less are exempt from forfeiture.
Art. 59A.005. CONTRABAND. A person may not have a property
right in contraband. Contraband is subject to seizure and must be
disposed of in accordance with state law. Contraband is not subject
to forfeiture under this chapter.
Art. 59A.006. CONVICTION REQUIRED; STANDARD OF PROOF. (a)
Property may be forfeited under this chapter if:
(1) a person is convicted under a state law subject to
forfeiture; and
(2) the state establishes by clear and convincing
evidence that the applicable requirements of Articles
59A.003-59A.005 are met.
(b) This chapter does not prevent property from being
forfeited by plea agreement approved by the convicting court.
Art. 59A.007. SUBSTITUTION OF ASSETS. On the state's
motion following conviction, the convicting court may order the
forfeiture of substitute property owned by the defendant if the
state proves by a preponderance of the evidence that the defendant
intentionally transferred, sold, or deposited property with a third
party to avoid the court's jurisdiction. The value of substitute
property forfeited may not exceed the value of the property
transferred, sold, or deposited.
Art. 59A.008. NO ADDITIONAL REMEDIES. The state may not
seek a personal money judgment against the defendant or any other
remedy not provided by this chapter.
Art. 59A.009. NO JOINT AND SEVERAL LIABILITY. A defendant
is not jointly and severally liable for forfeiture awards owed by
other defendants. If ownership is unknown, the convicting court
may order each defendant to forfeit property on a pro rata basis or
by other equitable means.
Art. 59A.010. SEIZURE OF PERSONAL PROPERTY WITH PROCESS.
At the request of the state made at any time, a court may issue an ex
parte preliminary order to seize or secure personal property for
which forfeiture is sought and to provide for its custody. The
application for and the issuance, execution, and return of the
order are governed by state law.
Art. 59A.011. SEIZURE OF PERSONAL PROPERTY WITHOUT PROCESS.
Personal property subject to forfeiture may be seized at any time
without a court order if:
(1) the seizure is incident to a lawful arrest or
search;
(2) the personal property has been the subject of a
previous judgment in favor of the state; or
(3) the law enforcement agency seizing the property
has probable cause to believe that the seizure is immediately
necessary to prevent the removal or destruction of the personal
property and that the personal property is forfeitable under this
chapter.
Art. 59A.012. SEIZURE OF REAL PROPERTY WITH PROCESS. (a)
Real property may be seized only under a court order. A court may
issue an order to seize or secure real property for which forfeiture
is sought only after the property owners are provided notice and an
opportunity for a contested hearing to determine the sufficiency of
probable cause for the seizure.
(b) This section does not prohibit the attorney
representing the state from seeking a lis pendens or restraining
order to prohibit the sale or destruction of the real property.
(c) The application for and the issuance, execution, and
return of any order are governed by state law.
Art. 59A.013. RECEIPT. A law enforcement officer who
seizes property shall give an itemized receipt to the person
possessing the property, or in the absence of any person, leave a
receipt in the place where the property was found, if reasonably
possible.
Art. 59A.014. TITLE TO PROPERTY. (a) At the time of a
seizure or the issuance of a restraining order, the state acquires
provisional title to the seized property and is authorized to hold
and protect the property.
(b) Title to the property vests with the state when the
trier of fact renders a final forfeiture verdict and the vesting
relates back to the time when the state acquired provisional title.
Title acquired under this subsection is subject to claims by third
parties adjudicated as provided by this chapter.
Art. 59A.015. PRETRIAL HEARING REGARDING REPLEVIN. (a) In
this article, "claimant" means a defendant or a third party
claiming an ownership interest in property that has been seized.
(b) Following a seizure of property, a claimant has the
right to a pretrial hearing to determine the validity of the
seizure.
(c) The claimant may claim, at any time on or before the 60th
day before the scheduled start of the trial of the related criminal
offense, the right to possession of property by motion to the court
to issue a writ of replevin.
(d) The claimant must file a motion establishing the
validity of the alleged interest in the property.
(e) The court shall hear the motion not later than the 30th
day after the date the motion is filed.
(f) The state must file an answer showing probable cause for
the seizure or a cross motion not later than the 10th day before the
hearing on the claimant's motion.
(g) The court shall grant the claimant's motion if the court
finds that:
(1) the final judgment is likely to require the state
to return the property to the claimant;
(2) the property is not reasonably required to be held
for investigatory reasons; or
(3) the property is the only reasonable means for a
defendant to pay for legal representation in the forfeiture
proceeding or in the prosecution of the related criminal offense.
(h) At the court's discretion under Subsection (g)(3), the
court may order the return of funds or property sufficient to obtain
legal counsel but less than the total amount seized, and may require
an accounting for the use of the returned funds or property.
(i) Instead of ordering the issuance of the writ of
replevin, the court may order the state to give security or written
assurance for satisfaction of any judgment, including damages, that
may be rendered in the action, or order other appropriate relief.
Art. 59A.016. FORFEITURE PROCEEDING. A proceeding for the
forfeiture of property must be held following the trial of the
related alleged offense. If the value of the property is less than
$10,000, the proceeding must be held before the judge only.
Art. 59A.017. PROPORTIONALITY HEARING. (a) At any time
following determination of forfeiture by the trier of fact, the
defendant may petition the court to determine whether the
forfeiture is unconstitutionally excessive under the United States
Constitution or the Texas Constitution.
(b) The defendant has the burden of establishing by a
preponderance of the evidence that the forfeiture is grossly
disproportional to the seriousness of the offense at a hearing
conducted by the court without a jury.
(c) In determining whether the forfeiture of an
instrumentality is unconstitutionally excessive, the court may
consider all relevant factors, including:
(1) the seriousness of the offense and its impact on
the community, including the duration of the activity and the harm
caused by the defendant;
(2) the extent to which the defendant participated in
the offense;
(3) the extent to which the property was used in
committing the offense;
(4) the sentence imposed for the offense; and
(5) whether the offense was completed or attempted.
(d) In determining the value of the instrumentality subject
to forfeiture, the court may consider all relevant factors,
including:
(1) the fair market value of the property;
(2) the value of the property to the defendant,
including hardship to the defendant if the property is ordered
forfeited; and
(3) the hardship from the loss of a primary residence,
motor vehicle, or other property to the defendant's family members
or others if the property is ordered forfeited.
(e) The court may not consider the value of the
instrumentality to the state in determining whether the forfeiture
of an instrumentality is unconstitutionally excessive.
Art. 59A.018. SECURITY INTEREST. A bona fide security
interest is not subject to forfeiture unless the person claiming
the security interest had actual knowledge that the property was
subject to forfeiture at the time the property was seized or
restrained under this chapter. A person claiming a security
interest must establish the validity of the interest by a
preponderance of the evidence.
Art. 59A.019. INNOCENT OWNER. (a) The property of an
innocent owner may not be forfeited.
(b) A person who has an ownership interest in property
subject to forfeiture existing at the time of the conduct giving
rise to forfeiture and who claims to be an innocent owner must show
that the person has a legal right, title, or interest in the
property seized under this chapter. If the person shows legal
right, title, or interest in the property, the state must prove by a
preponderance of the evidence that the person had actual or
constructive knowledge of the underlying offense giving rise to the
forfeiture.
(c) A person who acquired an ownership interest in property
subject to forfeiture after the commission of an offense giving
rise to the forfeiture and who claims to be an innocent owner must
show that the person has legal right, title, or interest in the
property seized under this chapter. If the person shows legal
right, title, or interest in the property, the state must prove by a
preponderance of the evidence that at the time the person acquired
the property, the person:
(1) had actual or constructive knowledge that the
property was subject to forfeiture; or
(2) did not purchase the property for valuable
consideration without notice of any defect in title.
(d) If the state fails to meet its burden in Subsection (b)
or (c), the court shall find that the person is an innocent owner
and shall order the state to relinquish all claims of title to the
property.
Art. 59A.020. APPEAL. A party to forfeiture litigation may
appeal the court's decision regarding the seizure, forfeiture, and
distribution of property under this chapter.
Art. 59A.021. DISPOSITION OF PROPERTY AND PROCEEDS. (a) If
abandoned property or contraband held for evidentiary purposes is
no longer needed for that purpose, the court may order that it be:
(1) delivered not later than the 30th day after the
date of the order to the comptroller of public accounts; or
(2) if the property is contraband, destroyed not later
than the 30th day after the date of the order.
(b) If property is forfeited under this chapter, the court
may order that the property be delivered not later than the 30th day
after the date of the order to the comptroller.
(c) On the court's own motion or the motion of any party, the
court may order that a portion of the currency seized or of the
proceeds from the public auction of property be used to pay
reasonable expenses for the seizure, storage, and maintenance or
custody of any forfeited items, other than expenses for personnel.
(d) All abandoned property must be delivered to the
comptroller.
(e) The comptroller shall dispose of all forfeited and
abandoned property, other than currency, at public auction. The
auction proceeds and forfeited currency shall first be used to pay
all outstanding recorded liens on the forfeited property, and then
to comply with any court order regarding the payment of expenses.
The comptroller shall deposit all remaining money in the general
revenue fund.
Art. 59A.022. PROHIBITION ON RETAINING PROPERTY; SALE
RESTRICTIONS. A law enforcement agency may not:
(1) retain forfeited or abandoned property for the
agency's use; or
(2) sell forfeited or abandoned property directly or
indirectly to:
(A) an employee of the agency;
(B) a person related to an employee by
consanguinity or affinity; or
(C) another law enforcement agency.
Art. 59A.023. REPORTING. (a) Not later than February 1 of
each year, each law enforcement agency shall report to the
department the following information regarding forfeitures
completed by the agency under state or federal forfeiture law
during the previous calendar year:
(1) the total number of forfeitures of currency;
(2) the total number of forfeitures and the number of
items of property forfeited according to categories specified by
the department;
(3) the total market value of each category of
property forfeited;
(4) the total number of occurrences of each type of
offense underlying the forfeitures, including offenses involving
controlled substances, driving while intoxicated, and other
offenses; and
(5) any other information required by the department.
(b) The department shall prescribe a standardized form and
provide for electronic submission of a report required under
Subsection (a).
(c) Each law enforcement agency shall file with the
department the report required under Subsection (a) for the law
enforcement agency and the corresponding attorney representing the
state. A law enforcement agency shall file separate reports for
forfeitures completed under state and federal forfeiture law. If a
law enforcement agency did not engage in forfeitures during the
reporting period, the agency must file a report indicating that
fact.
(d) Not later than April 1 of each year, the department
shall issue an aggregate report of all forfeitures in the state and
make available on its website the reports submitted by law
enforcement agencies and the department's aggregate report.
Art. 59A.024. RETURN OF PROPERTY; DAMAGES; COSTS. (a) A
law enforcement agency that holds property under this chapter shall
return the property to the owner not later than the fifth day after
the date:
(1) the court finds that the owner had a bona fide
security interest;
(2) the court finds that the owner was an innocent
owner;
(3) the acquittal of the owner of the criminal charge
against the owner that is the basis of the forfeiture proceeding; or
(4) the dismissal of the criminal charge against the
owner that is the basis of the forfeiture proceeding.
(b) The law enforcement agency that holds the property is
responsible for any damages, storage fees, and related costs
applicable to property returned under Subsection (a).
Art. 59A.025. TRANSFER OF FORFEITABLE PROPERTY TO FEDERAL
GOVERNMENT. A law enforcement agency or attorney representing the
state may not directly or indirectly transfer seized property to
any federal law enforcement authority or other federal agency
unless:
(1) the value of the seized property exceeds $50,000,
excluding the potential value of the sale of any contraband; and
(2) the attorney representing the state determines
that:
(A) the activity giving rise to the investigation
or seizure is interstate in nature and sufficiently complex to
justify the transfer; or
(B) the seized property may only be forfeited
under federal law.
SECTION 2. Section 72.051(a), Business & Commerce Code, is
amended to read as follows:
(a) In this section, "law enforcement agency" means an
agency of the state or an agency of a political subdivision of the
state authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 3. Section 140.013, Civil Practice and Remedies
Code, is amended to read as follows:
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 59A [59], Code of Criminal
Procedure, at the time a suit under this chapter was filed.
SECTION 4. Article 18.01(g), Code of Criminal Procedure, is
amended to read as follows:
(g) A search warrant may not be issued under [Subdivision
(12),] Article 18.02(a)(12) [18.02, of this code] unless the sworn
affidavit required by Subsection (b) of this article sets forth
sufficient facts to establish probable cause that a specific felony
offense has been committed and that the specifically described
property or items that are to be searched for or seized constitute
contraband as defined in Article 59A.001 [59.01 of this code] and
are located at or on the particular person, place, or thing to be
searched.
SECTION 5. Article 18.02(a), Code of Criminal Procedure, is
amended to read as follows:
(a) A search warrant may be issued to search for and seize:
(1) property acquired by theft or in any other manner
which makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for
or commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set
forth by law;
(7) a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance
property, including an apparatus or paraphernalia kept, prepared,
or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited
by law;
(9) implements or instruments used in the commission
of a crime;
(10) property or items, except the personal writings
by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;
(11) persons;
(12) contraband subject to forfeiture under Chapter
59A [59 of this code]; or
(13) electronic customer data held in electronic
storage, including the contents of and records and other
information related to a wire communication or electronic
communication held in electronic storage.
SECTION 6. Articles 18.19(c), (d-1), and (e), Code of
Criminal Procedure, are amended to read as follows:
(c) If there is no prosecution or conviction for an offense
involving the weapon seized, the magistrate to whom the seizure was
reported shall, before the 61st day after the date the magistrate
determines that there will be no prosecution or conviction, notify
in writing the person found in possession of the weapon that the
person is entitled to the weapon upon written request to the
magistrate. The magistrate shall order the weapon returned to the
person found in possession before the 61st day after the date the
magistrate receives a request from the person. If the weapon is not
requested before the 61st day after the date of notification, the
magistrate shall, before the 121st day after the date of
notification, order the weapon destroyed, sold at public sale by
the law enforcement agency holding the weapon or by an auctioneer
licensed under Chapter 1802, Occupations Code, or forfeited to the
state for use by the law enforcement agency holding the weapon or by
a county forensic laboratory designated by the magistrate. If the
magistrate does not order the return, destruction, sale, or
forfeiture of the weapon within the applicable period prescribed by
this subsection, the law enforcement agency holding the weapon may
request an order of destruction, sale, or forfeiture of the weapon
from the magistrate. Only a firearms dealer licensed under 18
U.S.C. Section 923 may purchase a weapon at public sale under this
subsection. Proceeds from the sale of a seized weapon under this
subsection shall be transferred, after the deduction of court costs
and [to which a district court clerk is entitled under Article
59.05(f), followed by the deduction of] auction costs, to the law
enforcement agency holding the weapon.
(d-1) Only a firearms dealer licensed under 18 U.S.C.
Section 923 may purchase a weapon at public sale under Subsection
(d). Proceeds from the sale of a seized weapon under Subsection (d)
shall be transferred, after the deduction of court costs and [to
which a district court clerk is entitled under Article 59.05(f),
followed by the deduction of] auction costs, to the law enforcement
agency holding the weapon.
(e) If the person found in possession of a weapon is
convicted of an offense involving the use of the weapon, before the
61st day after the date of conviction the court entering judgment of
conviction shall order destruction of the weapon, sale at public
sale by the law enforcement agency holding the weapon or by an
auctioneer licensed under Chapter 1802, Occupations Code, or
forfeiture to the state for use by the law enforcement agency
holding the weapon or by a county forensic laboratory designated by
the court. If the court entering judgment of conviction does not
order the destruction, sale, or forfeiture of the weapon within the
period prescribed by this subsection, the law enforcement agency
holding the weapon may request an order of destruction, sale, or
forfeiture of the weapon from a magistrate. Only a firearms dealer
licensed under 18 U.S.C. Section 923 may purchase a weapon at public
sale under this subsection. Proceeds from the sale of a seized
weapon under this subsection shall be transferred, after the
deduction of court costs and [to which a district court clerk is
entitled under Article 59.05(f), followed by the deduction of]
auction costs, to the law enforcement agency holding the weapon.
SECTION 7. Section 157.317(a), Family Code, is amended to
read as follows:
(a) A child support lien attaches to all real and personal
property not exempt under the Texas Constitution or other law,
including:
(1) an account in a financial institution;
(2) a retirement plan, including an individual
retirement account;
(3) the proceeds of an insurance policy, including the
proceeds from a life insurance policy or annuity contract and the
proceeds from the sale or assignment of life insurance or annuity
benefits, a claim for compensation, or a settlement or award for the
claim for compensation, due to or owned by the obligor; and
(4) property seized and subject to forfeiture under
Chapter 59A [59], Code of Criminal Procedure.
SECTION 8. Section 392.303, Finance Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) In debt collection, a debt collector may not use unfair
or unconscionable means that employ the following practices:
(1) seeking or obtaining a written statement or
acknowledgment in any form that specifies that a consumer's
obligation is one incurred for necessaries of life if the
obligation was not incurred for those necessaries;
(2) collecting or attempting to collect interest or a
charge, fee, or expense incidental to the obligation unless the
interest or incidental charge, fee, or expense is expressly
authorized by the agreement creating the obligation or legally
chargeable to the consumer; or
(3) collecting or attempting to collect an obligation
under a check, draft, debit payment, or credit card payment, if:
(A) the check or draft was dishonored or the
debit payment or credit card payment was refused because the check
or draft was not drawn or the payment was not made by a person
authorized to use the applicable account;
(B) the debt collector has received written
notice from a person authorized to use the account that the check,
draft, or payment was unauthorized; and
(C) the person authorized to use the account has
filed a report concerning the unauthorized check, draft, or payment
with a law enforcement agency [, as defined by Article 59.01, Code
of Criminal Procedure,] and has provided the debt collector with a
copy of the report.
(d) In this section, "law enforcement agency" means an
agency of the state or an agency of a political subdivision of the
state authorized by law to employ peace officers.
SECTION 9. Section 45.193(d), Government Code, is amended
to read as follows:
(d) The county attorney has no power, duty, or privilege in
Grimes County relating to criminal matters, including asset
forfeitures under Chapter 59A [59], Code of Criminal Procedure,
appearance bond forfeitures under Chapter 17, Code of Criminal
Procedure, and habeas corpus related to criminal matters.
SECTION 10. Section 54.656(a), Government Code, is amended
to read as follows:
(a) A judge may refer to a magistrate any criminal case for
proceedings involving:
(1) a negotiated plea of guilty before the court;
(2) a bond forfeiture;
(3) a pretrial motion;
(4) a postconviction writ of habeas corpus;
(5) an examining trial;
(6) an occupational driver's license;
(7) an agreed order of expunction under Chapter 55,
Code of Criminal Procedure;
(8) a [an asset] forfeiture hearing as provided by
Chapter 59A [59], Code of Criminal Procedure;
(9) an agreed order of nondisclosure provided by
Section 411.081;
(10) a hearing on a motion to revoke probation; and
(11) any other matter the judge considers necessary
and proper.
SECTION 11. Section 2007.003(b), Government Code, is
amended to read as follows:
(b) This chapter does not apply to the following
governmental actions:
(1) an action by a municipality except as provided by
Subsection (a)(3);
(2) a lawful forfeiture or seizure of contraband as
defined by Article 59A.001 [59.01], Code of Criminal Procedure;
(3) a lawful seizure of property as evidence of a crime
or violation of law;
(4) an action, including an action of a political
subdivision, that is reasonably taken to fulfill an obligation
mandated by federal law or an action of a political subdivision that
is reasonably taken to fulfill an obligation mandated by state law;
(5) the discontinuance or modification of a program or
regulation that provides a unilateral expectation that does not
rise to the level of a recognized interest in private real property;
(6) an action taken to prohibit or restrict a
condition or use of private real property if the governmental
entity proves that the condition or use constitutes a public or
private nuisance as defined by background principles of nuisance
and property law of this state;
(7) an action taken out of a reasonable good faith
belief that the action is necessary to prevent a grave and immediate
threat to life or property;
(8) a formal exercise of the power of eminent domain;
(9) an action taken under a state mandate to prevent
waste of oil and gas, protect correlative rights of owners of
interests in oil or gas, or prevent pollution related to oil and gas
activities;
(10) a rule or proclamation adopted for the purpose of
regulating water safety, hunting, fishing, or control of
nonindigenous or exotic aquatic resources;
(11) an action taken by a political subdivision:
(A) to regulate construction in an area
designated under law as a floodplain;
(B) to regulate on-site sewage facilities;
(C) under the political subdivision's
[subdivisions's] statutory authority to prevent waste or protect
rights of owners of interest in groundwater; or
(D) to prevent subsidence;
(12) the appraisal of property for purposes of ad
valorem taxation;
(13) an action that:
(A) is taken in response to a real and
substantial threat to public health and safety;
(B) is designed to significantly advance the
health and safety purpose; and
(C) does not impose a greater burden than is
necessary to achieve the health and safety purpose; or
(14) an action or rulemaking undertaken by the Public
Utility Commission of Texas to order or require the location or
placement of telecommunications equipment owned by another party on
the premises of a certificated local exchange company.
SECTION 12. Section 481.159(a), Health and Safety Code, is
amended to read as follows:
(a) If a district court orders the forfeiture of a
controlled substance property or plant under Chapter 59A [59], Code
of Criminal Procedure, or under this code, the court shall also
order a law enforcement agency to:
(1) retain the property or plant for its official
purposes, including use in the investigation of offenses under this
code;
(2) deliver the property or plant to a government
agency for official purposes;
(3) deliver the property or plant to a person
authorized by the court to receive it;
(4) deliver the property or plant to a person
authorized by the director to receive it for a purpose described by
Section 481.065(a); or
(5) destroy the property or plant that is not
otherwise disposed of in the manner prescribed by this subchapter.
SECTION 13. Section 481.160(a), Health and Safety Code, is
amended to read as follows:
(a) If a controlled substance property or plant is forfeited
under this code or under Chapter 59A [59], Code of Criminal
Procedure, the law enforcement agency that seized the property or
plant or to which the property or plant is forfeited may summarily
destroy the property or plant without a court order before the
disposition of a case arising out of the forfeiture if the agency
ensures that:
(1) at least five random and representative samples
are taken from the total amount of the property or plant and a
sufficient quantity is preserved to provide for discovery by
parties entitled to discovery;
(2) photographs are taken that reasonably depict the
total amount of the property or plant; and
(3) the gross weight or liquid measure of the property
or plant is determined, either by actually weighing or measuring
the property or plant or by estimating its weight or measurement
after making dimensional measurements of the total amount seized.
SECTION 14. Section 113.008(g), Local Government Code, is
amended to read as follows:
(g) Subsections (b-1) and (f)(2) do not apply to a special
fund administered by an attorney representing the state under
Chapter 18 or [,] 47, [or 59,] Code of Criminal Procedure.
SECTION 15. Section 1701.253(g), Occupations Code, is
amended to read as follows:
(g) As part of the minimum curriculum requirements, the
commission shall establish a statewide comprehensive education and
training program on criminal asset forfeiture under Chapter 59A
[59], Code of Criminal Procedure, for officers licensed under this
chapter. An officer shall complete a program established under
this subsection not later than the second anniversary of the date
the officer is licensed under this chapter or the date the officer
applies for an intermediate proficiency certificate, whichever
date is earlier.
SECTION 16. Section 37.08(b), Penal Code, is amended to
read as follows:
(b) In this section, "law enforcement agency" means an
agency of the state or an agency of a political subdivision of the
state authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 17. Section 38.152(c)(3), Penal Code, is amended to
read as follows:
(3) "Law enforcement agency" means an agency of the
state or an agency of a political subdivision of the state
authorized by law to employ peace officers [has the meaning
assigned by Article 59.01, Code of Criminal Procedure].
SECTION 18. Section 159.205(a), Tax Code, is amended to
read as follows:
(a) The right of the comptroller to collect the tax imposed
by this chapter, including applicable penalty and interest, is
subordinate to the right of a federal, state, or local law
enforcement authority to seize, forfeit, and retain property under
Chapter 481, Health and Safety Code; Chapter 59A [59], Code of
Criminal Procedure; or any other criminal forfeiture law of this
state or of the United States. A lien filed by the comptroller as a
result of the failure of a dealer to pay the tax, penalty, or
interest due under this chapter is also subordinate to those
rights.
SECTION 19. The following provisions are repealed:
(1) Section 140.004(h), Civil Practice and Remedies
Code, as added by Chapter 1066 (H.B. 3241), Acts of the 83rd
Legislature, Regular Session, 2013;
(2) Article 18.17, Code of Criminal Procedure;
(3) Chapter 59, Code of Criminal Procedure;
(4) Sections 24.377(c) and 54.656(b), Government
Code;
(5) Section 365.012(i), Health and Safety Code; and
(6) Sections 12.101(1) and (2) and Section 12.1106,
Parks and Wildlife Code.
SECTION 20. (a) Except as provided by Subsection (b) of
this section, on the effective date of this Act, any property in the
possession of a law enforcement agency, game warden, or attorney
representing the state, that was seized under Chapter 59, Code of
Criminal Procedure, or Section 12.1106, Parks and Wildlife Code,
and that has not been ordered forfeited to the state by a court,
must be returned to the person from whom the property was seized.
(b) Property that is evidence in the investigation or
prosecution of a criminal offense is not required to be returned
under Subsection (a) of this section until the disposition of all
charges relating to the offense.
SECTION 21. The repeal by this Act of Article 18.17, Code of
Criminal Procedure, does not apply to abandoned or unclaimed
property seized before the effective date of this Act, and the
former Article 18.17 is continued in effect for the purposes of the
disposition of property described by this section.
SECTION 22. 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, 2015.