Bill Text: TX SB285 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Relating to certain proceedings or procedures involving the disposition of certain contraband or abandoned or unclaimed property.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2023-02-15 - Referred to Criminal Justice [SB285 Detail]

Download: Texas-2023-SB285-Introduced.html

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88R1554 JRR-D
By: Eckhardt S.B. No. 285

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