Bill Text: TX HB3241 | 2013-2014 | 83rd Legislature | Enrolled

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Bill Title: Relating to the civil prosecution of racketeering related to trafficking of persons; providing penalties.

Sponsorship: Slight Partisan Bill (Republican 5-3)

Status: (Passed) 2013-06-14 - Effective immediately [HB3241 Detail]

Download: Texas-2013-HB3241-Enrolled.html

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H.B. No. 3241

AN ACT
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