Bill Text: TX SB316 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to criminal asset forfeiture, the disposition of proceeds and property from criminal asset forfeiture, and accountability for that disposition; providing civil penalties.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB316 Detail]
Download: Texas-2011-SB316-Enrolled.html
S.B. No. 316 |
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relating to criminal asset forfeiture, the disposition of proceeds | ||
and property from criminal asset forfeiture, and accountability for | ||
that disposition; providing civil penalties. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Article 59.03, Code of Criminal Procedure, is | ||
amended by amending Subsection (d) and adding Subsection (e) to | ||
read as follows: | ||
(d) A person in the possession of property at the time a | ||
peace officer seizes the property under this chapter may at the time | ||
of seizure assert the person's interest in or right to the property. | ||
A peace officer, including the peace officer who seizes the | ||
property, [ |
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request, require, or in any manner induce any person, including a | ||
person who asserts an interest in or right to the property [ |
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to execute a document purporting to waive the person's interest in | ||
or rights to [ |
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(e) At any time before notice is filed under Article | ||
59.04(b), an attorney representing the state may not request, | ||
require, or in any manner induce any person, including a person who | ||
asserts an interest in or right to property seized under this | ||
chapter, to execute a document purporting to waive the person's | ||
interest in or rights to the property. | ||
SECTION 2. Article 59.06, Code of Criminal Procedure, is | ||
amended by adding Subsections (c-2), (c-3), (c-4), (d-1), and (d-2) | ||
and amending Subsections (d) and (g) to read as follows: | ||
(c-2) Any postjudgment interest from money, securities, | ||
negotiable instruments, stocks or bonds, or things of value, or | ||
proceeds from the sale of those items, that are deposited in an | ||
interest-bearing bank account under Subsection (c) shall be used | ||
for the same purpose as the principal. | ||
(c-3) Notwithstanding Subsection (a), with respect to | ||
forfeited property seized in connection with a violation of Chapter | ||
481, Health and Safety Code (Texas Controlled Substances Act), by a | ||
peace officer employed by the Department of Public Safety, in a | ||
proceeding under Article 59.05 in which a default judgment is | ||
rendered in favor of the state, the attorney representing the state | ||
shall enter into a local agreement with the department that allows | ||
the attorney representing the state either to: | ||
(1) transfer forfeited property to the department to | ||
maintain, repair, use, and operate for official purposes in the | ||
manner provided by Subsection (b); or | ||
(2) allocate proceeds from the sale of forfeited | ||
property described by Subsection (c), after the deduction of court | ||
costs as described by that subsection, in the following | ||
proportions: | ||
(A) 40 percent to a special fund in the | ||
department to be used solely for law enforcement purposes; | ||
(B) 30 percent to a special fund in the county | ||
treasury for the benefit of the office of the attorney representing | ||
the state, to be used by the attorney solely for the official | ||
purposes of the attorney's office; and | ||
(C) 30 percent to the general revenue fund. | ||
(c-4) Notwithstanding Subsections (a) and (c-3), with | ||
respect to forfeited property seized in connection with a | ||
violation of Chapter 481, Health and Safety Code (Texas Controlled | ||
Substances Act), by the Department of Public Safety concurrently | ||
with any other law enforcement agency, in a proceeding under | ||
Article 59.05 in which a default judgment is rendered in favor of | ||
the state, the attorney representing the state may allocate | ||
property or proceeds in accordance with a memorandum of | ||
understanding between the law enforcement agencies and the | ||
attorney representing the state. | ||
(d) Proceeds awarded under this chapter to a law enforcement | ||
agency or to the attorney representing the state may be spent by the | ||
agency or the attorney after a budget for the expenditure of the | ||
proceeds has been submitted to the commissioners court or governing | ||
body of the municipality. The budget must be detailed and clearly | ||
list and define the categories of expenditures, but may not list | ||
details that would endanger the security of an investigation or | ||
prosecution. Expenditures are subject to the audit and enforcement | ||
provisions established under this chapter [ |
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commissioners court or governing body of a municipality may not use | ||
the existence of an award to offset or decrease total salaries, | ||
expenses, and allowances that the agency or the attorney receives | ||
from the commissioners court or governing body at or after the time | ||
the proceeds are awarded. | ||
(d-1) The head of a law enforcement [ |
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attorney representing the state may not use proceeds or property | ||
received under this chapter to: | ||
(1) contribute to a political campaign; | ||
(2) make a donation to any entity, except as provided | ||
by Subsection (d-2); | ||
(3) pay expenses related to the training or education | ||
of any member of the judiciary; | ||
(4) pay any travel expenses related to attendance at | ||
training or education seminars if the expenses violate generally | ||
applicable restrictions established by the commissioners court or | ||
governing body of the municipality, as applicable; | ||
(5) purchase alcoholic beverages; | ||
(6) make any expenditure not approved by the | ||
commissioners court or governing body of the municipality, as | ||
applicable, if the head of a law enforcement agency or attorney | ||
representing the state holds an elective office and: | ||
(A) the deadline for filing an application for a | ||
place on the ballot as a candidate for reelection to that office in | ||
the general primary election has passed and the person did not file | ||
an application for a place on that ballot; or | ||
(B) during the person's current term of office, | ||
the person was a candidate in a primary, general, or runoff election | ||
for reelection to that office and was not the prevailing candidate | ||
in that election; or | ||
(7) [ |
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expense, or allowance for an employee of the law enforcement agency | ||
or attorney representing the state [ |
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the commissioners court or governing body of the municipality | ||
unless the commissioners court or governing body first approves the | ||
increase [ |
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(d-2) The head of a law enforcement agency or an attorney | ||
representing the state may use as an official purpose of the agency | ||
or attorney proceeds or property received under this chapter to | ||
make a donation to an entity that assists in: | ||
(1) the detection, investigation, or prosecution of: | ||
(A) criminal offenses; or | ||
(B) instances of abuse, as defined by Section | ||
261.001, Family Code; | ||
(2) the provision of: | ||
(A) mental health, drug, or rehabilitation | ||
services; or | ||
(B) services for victims or witnesses of criminal | ||
offenses or instances of abuse described by Subdivision (1); or | ||
(3) the provision of training or education related to | ||
duties or services described by Subdivision (1) or (2). | ||
(g)(1) All law enforcement agencies and attorneys | ||
representing the state who receive proceeds or property under this | ||
chapter shall account for the seizure, forfeiture, receipt, and | ||
specific expenditure of all the [ |
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audit, which is to be performed annually by the commissioners court | ||
or governing body of a municipality, as appropriate. The annual | ||
period of the audit for a law enforcement agency is the fiscal year | ||
of the appropriate county or municipality and the annual period for | ||
an attorney representing the state is the state fiscal year. The | ||
audit must [ |
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general and must include a detailed report and explanation of all | ||
expenditures, including salaries and overtime pay, officer | ||
training, investigative equipment and supplies, and other items. | ||
Certified copies of the audit shall be delivered by the law | ||
enforcement agency or attorney representing the state to [ |
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60th day after the date on which the annual period that is the | ||
subject of the audit ends. | ||
(2) If a copy of the audit is not delivered to the | ||
attorney general within the period required by Subdivision (1), | ||
within five days after the end of the period the attorney general | ||
shall notify the law enforcement agency or the attorney | ||
representing the state of that fact. On a showing of good cause, | ||
the attorney general may grant an extension permitting the agency | ||
or attorney to deliver a copy of the audit after the period required | ||
by Subdivision (1) and before the 76th day after the date on which | ||
the annual period that is the subject of the audit ends. If the law | ||
enforcement agency or the attorney representing the state fails to | ||
establish good cause for not delivering the copy of the audit within | ||
the period required by Subdivision (1) or fails to deliver a copy of | ||
an audit within the extension period, the attorney general shall | ||
notify the comptroller of that fact. | ||
(3) On notice under Subdivision (2) [ |
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required by Subdivision (1). At the conclusion of the audit, the | ||
comptroller shall forward a copy of the audit to the attorney | ||
general. The law enforcement agency or attorney representing the | ||
state is liable to the comptroller for the costs of the comptroller | ||
in performing the audit. | ||
SECTION 3. Chapter 59, Code of Criminal Procedure, is | ||
amended by adding Articles 59.061 and 59.062 to read as follows: | ||
Art. 59.061. AUDITS AND INVESTIGATIONS. (a) The state | ||
auditor may at any time perform an audit or conduct an | ||
investigation, in accordance with this article and Chapter 321, | ||
Government Code, related to the seizure, forfeiture, receipt, and | ||
specific expenditure of proceeds and property received under this | ||
chapter. | ||
(b) The state auditor is entitled at any time to access any | ||
book, account, voucher, confidential or nonconfidential report, or | ||
other record of information, including electronic data, maintained | ||
under Article 59.06, except that if the release of the applicable | ||
information is restricted under state or federal law, the state | ||
auditor may access the information only with the approval of a court | ||
or federal administrative agency, as appropriate. | ||
(c) If the results of an audit or investigation under this | ||
article indicate that a law enforcement agency or attorney | ||
representing the state has knowingly violated or is knowingly | ||
violating a provision of this chapter relating to the disposition | ||
of proceeds or property received under this chapter, the state | ||
auditor shall promptly notify the attorney general for the purpose | ||
of initiating appropriate enforcement proceedings under Article | ||
59.062. | ||
(d) The law enforcement agency or attorney representing the | ||
state shall reimburse the state auditor for costs incurred by the | ||
state auditor in performing an audit under this article. | ||
Art. 59.062. ENFORCEMENT. (a) In the name of the state, | ||
the attorney general may institute in a district court in Travis | ||
County or in a county served by the law enforcement agency or | ||
attorney representing the state, as applicable, a suit for | ||
injunctive relief, to recover a civil penalty, or for both | ||
injunctive relief and a civil penalty if the results of an audit or | ||
investigation under Article 59.061 indicate that the law | ||
enforcement agency or attorney representing the state has knowingly | ||
violated or is knowingly violating a provision of this chapter | ||
relating to the disposition of proceeds or property received under | ||
this chapter. | ||
(b) On application for injunctive relief and a finding that | ||
the law enforcement agency or attorney representing the state is | ||
knowingly violating a provision of this chapter relating to the | ||
disposition of proceeds or property received under this chapter, | ||
the district court shall grant the injunctive relief the facts may | ||
warrant, without requirement for bond. | ||
(c) A law enforcement agency or attorney representing the | ||
state who knowingly commits a violation described by Subsection (a) | ||
is liable to the state for a civil penalty in an amount not to exceed | ||
$100,000 as determined by the district court to be appropriate for | ||
the nature and seriousness of the violation. In determining an | ||
appropriate penalty for the violation, the court shall consider: | ||
(1) any previous violations committed by the agency or | ||
attorney; | ||
(2) the seriousness of the violation, including the | ||
nature, circumstances, extent, and gravity of the violation; | ||
(3) the demonstrated good faith of the agency or | ||
attorney; and | ||
(4) the amount necessary to deter future violations. | ||
(d) If the attorney general brings a suit under this article | ||
and an injunction is granted or a civil penalty is imposed, the | ||
attorney general may recover reasonable expenses, court costs, | ||
investigative costs, and attorney's fees. | ||
(e) Notwithstanding any other provision of this article, a | ||
law enforcement agency or attorney representing the state ordered | ||
to pay a civil penalty, expense, cost, or fee under this article | ||
shall make the payment out of money available in any fund | ||
established by the agency or attorney, as applicable, for the | ||
purpose of administering proceeds or property received under this | ||
chapter. If sufficient money is not available to make payment in | ||
full at the time the court enters an order requiring payment, the | ||
agency or attorney shall continue to make payments out of money | ||
available in any fund described by this subsection until the | ||
payment is made in full. | ||
(f) A civil penalty collected under this article shall be | ||
deposited to the credit of the drug court account in the general | ||
revenue fund to help fund drug court programs established under | ||
Chapter 469, Health and Safety Code. | ||
(g) A law enforcement agency or attorney representing the | ||
state is immune from liability under this article if the agency or | ||
attorney reasonably relied on: | ||
(1) the advice, consent, or approval of an entity that | ||
conducts an audit of the agency or attorney under this chapter; or | ||
(2) a written opinion of the attorney general relating | ||
to: | ||
(A) the statute or other provision of law the | ||
agency or attorney is alleged to have knowingly violated; or | ||
(B) a fact situation that is substantially | ||
similar to the fact situation in which the agency or attorney is | ||
involved. | ||
SECTION 4. Section 24.377, Government Code, is amended by | ||
adding Subsection (c) to read as follows: | ||
(c) In addition to the requirements under Article 59.06, | ||
Code of Criminal Procedure, the district attorney for the 198th | ||
Judicial District may use proceeds from the sale of forfeited | ||
property, after the deduction of amounts described by Article | ||
59.06(a), Code of Criminal Procedure, for the official purposes of | ||
the office of the district attorney only on the approval of: | ||
(1) the commissioners court of each county in the | ||
judicial district; or | ||
(2) a regional review committee composed of three | ||
members who are a county judge, a county attorney, a county | ||
commissioner or a county sheriff, each appointed by the member of | ||
the house of representatives of this state who represents the | ||
largest number of counties in the judicial district. | ||
SECTION 5. The changes in law made by this Act in amending | ||
Article 59.03, Code of Criminal Procedure, apply only to property | ||
seized on or after the effective date of this Act. Property seized | ||
before the effective date of this Act is covered by the law in | ||
effect when the property was seized, and the former law is continued | ||
in effect for that purpose. For purposes of this section, property | ||
was seized before the effective date of this Act if any portion of | ||
the property was seized before that date. | ||
SECTION 6. The changes in law made by this Act in adding | ||
Subsections (c-2), (d-1), and (d-2), Article 59.06, Code of | ||
Criminal Procedure, and amending Subsection (d), Article 59.06, | ||
Code of Criminal Procedure, apply to the disposition or use, on or | ||
after the effective date of this Act, of proceeds or property | ||
received by a law enforcement agency or attorney representing the | ||
state under Chapter 59, Code of Criminal Procedure, regardless of | ||
whether the receipt of the proceeds or property occurred before, | ||
on, or after the effective date of this Act. | ||
SECTION 7. Subsection (c-3), Article 59.06, Code of | ||
Criminal Procedure, as added by this Act, applies to property | ||
seized or taken into custody on or after the effective date of this | ||
Act. Property seized or taken into custody before the effective | ||
date of this Act is governed by the law in effect on the date the | ||
property is seized or taken into custody, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 8. The changes in law made by this Act in amending | ||
Subsection (g), Article 59.06, Code of Criminal Procedure, and | ||
adding Articles 59.061 and 59.062, Code of Criminal Procedure, | ||
apply to any audit performed on or after the effective date of this | ||
Act. | ||
SECTION 9. This Act takes effect September 1, 2011. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 316 passed the Senate on | ||
March 17, 2011, by the following vote: Yeas 31, Nays 0; and that | ||
the Senate concurred in House amendments on May 27, 2011, by the | ||
following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 316 passed the House, with | ||
amendments, on May 12, 2011, by the following vote: Yeas 116, | ||
Nays 18, two present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |