Bill Text: TX SB1451 | 2013-2014 | 83rd Legislature | Enrolled
Bill Title: Relating to the prosecution of the offense of money laundering and to the forfeiture of certain contraband.
Spectrum: Bipartisan Bill
Status: (Passed) 2013-06-14 - Effective on 9/1/13 [SB1451 Detail]
Download: Texas-2013-SB1451-Enrolled.html
S.B. No. 1451 |
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relating to the prosecution of the offense of money laundering and | ||
to the forfeiture of certain contraband. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subdivisions (1) and (2), Article 59.01, Code of | ||
Criminal Procedure, are amended to read as follows: | ||
(1) "Attorney representing the state" means the | ||
prosecutor with felony jurisdiction in the county in which a | ||
forfeiture proceeding is held under this chapter or, in a | ||
proceeding for forfeiture of contraband as defined under | ||
Subdivision (2)(B)(v) of this article, the city attorney of a | ||
municipality if the property is seized in that municipality by a | ||
peace officer employed by that municipality and the governing body | ||
of the municipality has approved procedures for the city attorney | ||
acting in a forfeiture proceeding. In a proceeding for forfeiture | ||
of contraband as defined under Subdivision (2)(B)(vi) | ||
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general. | ||
(2) "Contraband" means property of any nature, | ||
including real, personal, tangible, or intangible, that is: | ||
(A) used in the commission of: | ||
(i) any first or second degree felony under | ||
the Penal Code; | ||
(ii) any felony under Section 15.031(b), | ||
20.05, 21.11, 38.04, or Chapter 43, 20A, 29, 30, 31, 32, 33, 33A, or | ||
35, Penal Code; | ||
(iii) any felony under The Securities Act | ||
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or | ||
(iv) any offense under Chapter 49, Penal | ||
Code, that is punishable as a felony of the third degree or state | ||
jail felony, if the defendant has been previously convicted three | ||
times of an offense under that chapter; | ||
(B) used or intended to be used in the commission | ||
of: | ||
(i) any felony under Chapter 481, Health | ||
and Safety Code (Texas Controlled Substances Act); | ||
(ii) any felony under Chapter 483, Health | ||
and Safety Code; | ||
(iii) a felony under Chapter 151 [ |
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Finance Code; | ||
(iv) any felony under Chapter 34, Penal | ||
Code; | ||
(v) a Class A misdemeanor under Subchapter | ||
B, Chapter 365, Health and Safety Code, if the defendant has been | ||
previously convicted twice of an offense under that subchapter; | ||
(vi) [ |
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Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that | ||
involves the state Medicaid program; | ||
(vii) [ |
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Chapter 522, Business & Commerce Code; | ||
(viii) [ |
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Section 306.051, Business & Commerce Code; | ||
(ix) [ |
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Penal Code; | ||
(x) [ |
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46.06(a)(1) or 46.14, Penal Code; | ||
(xi) [ |
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Penal Code; or | ||
(xii) [ |
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20.05, Penal Code; | ||
(C) the proceeds gained from the commission of a | ||
felony listed in Paragraph (A) or (B) of this subdivision, a | ||
misdemeanor listed in Paragraph (B)(vii), (ix) [ |
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(xi)[ |
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(D) acquired with proceeds gained from the | ||
commission of a felony listed in Paragraph (A) or (B) of this | ||
subdivision, a misdemeanor listed in Paragraph (B)(vii), (ix) | ||
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crime of violence; | ||
(E) used to facilitate or intended to be used to | ||
facilitate the commission of a felony under Section 15.031 or | ||
43.25, Penal Code; or | ||
(F) used to facilitate or intended to be used to | ||
facilitate the commission of a felony under Section 20A.02 or | ||
Chapter 43, Penal Code. | ||
SECTION 2. Article 59.011, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 59.011. ELECTION OF FORFEITURE PROCEEDING. If | ||
property described by Article 59.01(2)(B)(ix), (x), or | ||
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this chapter and Article 18.18, the attorney representing the state | ||
may proceed under either this chapter or that article. | ||
SECTION 3. Chapter 59, Code of Criminal Procedure, is | ||
amended by adding Articles 59.021, 59.022, 59.023, and 59.024 to | ||
read as follows: | ||
Art. 59.021. FORFEITURE OF SUBSTITUTE PROPERTY. (a) In | ||
this article, "substitute property" means property: | ||
(1) that is not contraband; and | ||
(2) that is owned by a person who is or was the owner | ||
of, or has or had an interest in, contraband with an aggregate value | ||
of $200,000 or more. | ||
(b) Substitute property may be seized under authority of a | ||
search warrant issued under Subsection (c) if property that is | ||
contraband: | ||
(1) can no longer be located after the exercise of | ||
reasonable diligence; | ||
(2) has been transferred, conveyed, sold to, or | ||
deposited with a person other than the owner or interest holder; | ||
(3) is not within the jurisdiction of the court; | ||
(4) has substantially diminished in value; | ||
(5) has been commingled with other property and cannot | ||
be readily distinguished or separated; or | ||
(6) is proceeds described by Article 59.01(2)(C) and | ||
was used to acquire other property that is not within the | ||
jurisdiction of the court. | ||
(c) A district court may issue a search warrant authorizing | ||
a peace officer to seize substitute property if the officer submits | ||
an affidavit that states: | ||
(1) probable cause for the commission of an offense | ||
giving rise to forfeiture of contraband; | ||
(2) a description of the contraband involved and the | ||
estimated current fair market value of the substitute property to | ||
be seized; | ||
(3) the reasons the contraband is unavailable for | ||
forfeiture; | ||
(4) probable cause to believe that the owner of the | ||
substitute property owned or had an interest in contraband with an | ||
aggregate value of $200,000 or more in connection with the | ||
commission of an underlying offense giving rise to the forfeiture; | ||
and | ||
(5) that due diligence has been exercised in | ||
identifying the minimum amount of substitute property necessary to | ||
approximate the estimated highest fair market value of the | ||
contraband during the period in which the owner of the substitute | ||
property owned, or had an interest in, the contraband. | ||
(d) After seizure of the substitute property, the | ||
disposition shall proceed as other cases in this chapter except | ||
that the attorney representing the state must prove by a | ||
preponderance of the evidence: | ||
(1) that the contraband described by Subsection (b) | ||
was subject to seizure and forfeiture under this chapter; | ||
(2) the highest fair market value of that contraband | ||
during the period in which the owner of the substitute property | ||
owned, or had an interest in, the contraband; | ||
(3) the fair market value of the substitute property | ||
at the time it was seized; and | ||
(4) that the owner of the substitute property owned or | ||
had an interest in contraband with an aggregate value of $200,000 or | ||
more in connection with the commission of an underlying offense | ||
giving rise to the forfeiture. | ||
(e) For purposes of determining the aggregate value of | ||
contraband under Subsection (c) or (d), the owner or interest | ||
holder is not required to have simultaneously owned or had an | ||
interest in all of the property constituting contraband. | ||
(f) If the fair market value of the substitute property | ||
seized exceeds the highest fair market value of the contraband | ||
described by Subsection (b) during the period in which the owner of | ||
the substitute property owned, or had an interest in, the | ||
contraband, the court shall make appropriate orders to ensure that | ||
property equal in value to the excess is returned to the person or | ||
persons from whom the substitute property was seized. | ||
Art. 59.022. PROPERTY REMOVED FROM THIS STATE. (a) This | ||
article applies to contraband, other than real property, that is | ||
determined to be located outside of this state. | ||
(b) A peace officer who identifies contraband described by | ||
Subsection (a) shall provide the attorney representing the state a | ||
sworn statement that identifies the contraband and the reasons the | ||
contraband is subject to seizure. On receiving the sworn | ||
statement, the attorney representing the state may file, in the | ||
name of the state, a notice of intended forfeiture in a district | ||
court in: | ||
(1) the county in which the contraband, or proceeds | ||
used to acquire the contraband, was known to be situated before its | ||
removal out of this state; | ||
(2) the county in which any owner or possessor of the | ||
contraband was prosecuted for an underlying offense for which the | ||
property is subject to forfeiture; | ||
(3) the county in which venue existed for prosecution | ||
of an underlying offense for which the property is subject to | ||
forfeiture; or | ||
(4) Travis County. | ||
(c) The attorney representing the state shall request that | ||
citation be served on any person who owns or is in possession or | ||
control of the contraband to which this article applies and, on | ||
service in accordance with the Texas Rules of Civil Procedure, may | ||
move to have the court order that the contraband be: | ||
(1) returned or brought to the jurisdiction of the | ||
court; or | ||
(2) delivered to an agent of this state for | ||
transportation to the jurisdiction of the court. | ||
(d) The attorney representing the state is entitled to all | ||
reasonable discovery in accordance with the Texas Rules of Civil | ||
Procedure to assist in identifying and locating contraband | ||
described by Subsection (a). | ||
(e) If the court orders the return of contraband under this | ||
article, the contraband, after return, is subject to seizure and | ||
forfeiture as otherwise provided by this chapter. | ||
(f) If it is found that any person after being served with a | ||
citation under Subsection (c) has transported, concealed, disposed | ||
of, or otherwise acted to prevent the seizure and forfeiture of | ||
contraband described by Subsection (a), the court may: | ||
(1) order the payment to the attorney representing the | ||
state of costs incurred in investigating and identifying the | ||
location of the contraband, including discovery costs, reasonable | ||
attorney's fees, expert fees, other professional fees incurred by | ||
the attorney, and travel expenses; | ||
(2) enter a judgment for civil contempt and impose: | ||
(A) a fine of not more than $10,000 or less than | ||
$1,000; | ||
(B) confinement in jail for a term of not more | ||
than 30 days or less than 10 days; or | ||
(C) both fine and confinement; | ||
(3) enter a judgment of forfeiture of the person's | ||
interest in the contraband; | ||
(4) enter a judgment in the amount of the fair market | ||
value of the contraband; | ||
(5) impose a civil penalty of not more than $25,000 or | ||
less than $1,000 for each item of contraband, or each separate fund, | ||
of which the person transported, concealed, disposed, or otherwise | ||
acted to prevent the seizure and forfeiture; or | ||
(6) order any combination of Subdivisions (1) through | ||
(5). | ||
Art. 59.023. SUIT FOR PROCEEDS. (a) A peace officer who | ||
identifies proceeds that are gained from the commission of an | ||
offense listed in Article 59.01(2)(A) or (B) shall provide the | ||
attorney representing the state with an affidavit that identifies | ||
the amount of the proceeds and that states probable cause that the | ||
proceeds are contraband subject to forfeiture. On receiving the | ||
affidavit, the attorney representing the state may file for a | ||
judgment in the amount of the proceeds in a district court in: | ||
(1) the county in which the proceeds were gained; | ||
(2) the county in which any owner or possessor of the | ||
property was prosecuted for an underlying offense for which the | ||
property is subject to forfeiture; | ||
(3) the county in which venue existed for prosecution | ||
of an underlying offense for which the property is subject to | ||
forfeiture; | ||
(4) the county in which the proceeds were seized; or | ||
(5) Travis County. | ||
(b) If the court determines that, based on an examination of | ||
the affidavit described by Subsection (a), probable cause exists | ||
for the suit to proceed, the court shall order that citation be | ||
served on all defendants named in the suit in accordance with the | ||
Texas Rules of Civil Procedure. | ||
(c) Each person who is shown to have been a party to an | ||
underlying offense for which the proceeds are subject to forfeiture | ||
is jointly and severally liable in a suit under this article, | ||
regardless of whether the person has been charged for the offense. | ||
Art. 59.024. MULTIPLE RECOVERY PROHIBITED. The attorney | ||
representing the state may proceed under Article 59.02, 59.021, | ||
59.022, or 59.023, or any combination of those articles. If | ||
property or proceeds are awarded or forfeited to the state under | ||
this chapter for an underlying offense, a court may not award or | ||
forfeit additional property or proceeds that would exceed the | ||
highest fair market value of the contraband subject to forfeiture | ||
for that offense. For purposes of this article, the highest fair | ||
market value may be calculated at any time during the period in | ||
which the applicable person owned, possessed, or had an interest in | ||
the contraband. | ||
SECTION 4. Subsection (p), Article 59.06, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(p) Notwithstanding Subsection (a), and to the extent | ||
necessary to protect the commission's ability to recover amounts | ||
wrongfully obtained by the owner of the property and associated | ||
damages and penalties to which the commission may otherwise be | ||
entitled by law, the attorney representing the state shall transfer | ||
to the Health and Human Services Commission all forfeited property | ||
defined as contraband under Article 59.01(2)(B)(vi) | ||
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other than money or negotiable instruments, the attorney | ||
representing the state may, if approved by the commission, sell the | ||
property and deliver to the commission the proceeds from the sale, | ||
minus costs attributable to the sale. The sale must be conducted in | ||
a manner that is reasonably expected to result in receiving the fair | ||
market value for the property. | ||
SECTION 5. Subdivisions (2) and (4), Section 34.01, Penal | ||
Code, are amended to read as follows: | ||
(2) "Funds" includes: | ||
(A) coin or paper money of the United States or | ||
any other country that is designated as legal tender and that | ||
circulates and is customarily used and accepted as a medium of | ||
exchange in the country of issue; | ||
(B) United States silver certificates, United | ||
States Treasury notes, and Federal Reserve System notes; | ||
(C) an official foreign bank note that is | ||
customarily used and accepted as a medium of exchange in a foreign | ||
country and a foreign bank draft; and | ||
(D) currency or its equivalent, including an | ||
electronic fund, a personal check, a bank check, a traveler's | ||
check, a money order, a bearer negotiable instrument, a bearer | ||
investment security, a bearer security, a [ |
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in a form that allows title to pass on delivery, or a stored value | ||
card as defined by Section 604.001, Business & Commerce Code. | ||
(4) "Proceeds" means funds acquired or derived | ||
directly or indirectly from, produced through, [ |
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through, or used in the commission of: | ||
(A) an act; or | ||
(B) conduct that constitutes an offense under | ||
Section 151.7032, Tax Code. | ||
SECTION 6. (a) The change in law made by this Act to | ||
Chapter 59, Code of Criminal Procedure, applies only to the | ||
forfeiture of property in relation to an offense committed on or | ||
after the effective date of this Act. Forfeiture of property in | ||
relation to an offense committed before the effective date of this | ||
Act is governed by the law in effect when the offense was committed, | ||
and the former law is continued in effect for that purpose. | ||
(b) The change in law made by this Act to Section 34.01, | ||
Penal Code, applies only to an offense committed on or after the | ||
effective date of this Act. An offense committed before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the offense was committed, and the former law is continued in | ||
effect for that purpose. | ||
(c) For 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 7. This Act takes effect September 1, 2013. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 1451 passed the Senate on | ||
May 1, 2013, by the following vote: Yeas 31, Nays 0; and that the | ||
Senate concurred in House amendment on May 22, 2013, by the | ||
following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 1451 passed the House, with | ||
amendment, on May 17, 2013, by the following vote: Yeas 135, | ||
Nays 6, two present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |