HB914 - Relating to repealing civil asset forfeiture provisions and establishing criminal asset forfeiture in this state.

  89R1388 MCF-F     By: Thompson H.B. No. 914       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   control of the property.                 (2)     "Actual knowledge" means direct and clear   awareness of information, facts, or conditions.                 (3)     "Contraband" means tangible or intangible goods   that are illegal to import, export, or possess, including a   scheduled drug without a valid prescription.                 (4)     "Conveyance" means a device or structure used for   transportation. The term includes a motor vehicle, trailer,   snowmobile, airplane, or vessel, and any attached equipment.                 (5)     "Department" means the Department of Public   Safety.                 (6)     "Instrumentality" means property that is   otherwise lawful to possess and that is used in the furtherance or   commission of an offense 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.   The term does   not include stolen property.                 (7)     "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.                 (8)  "Offense subject to forfeiture" means:                       (A)     a first or second degree felony under the   Penal Code;                       (B)     a third degree or state jail felony under   Chapter 49, Penal Code, if the defendant has been previously   convicted three times of an offense under that chapter;                       (C)  a felony under:                             (i)  Chapter 152, Finance Code;                             (ii)     Chapter 481 or 483, Health and Safety   Code;                             (iii)     Chapter 32, Human Resources Code, or   Chapter 35A or 37, Penal Code, that involves a health care program,   as defined by Section 35A.01, Penal Code;                             (iv)     Section 15.031, 21.11, or 38.04, Penal   Code;                             (v)     Chapter 20A, 29, 30, 31, 32, 33, 33A,   34, 35, or 43, Penal Code; or                             (vi)     The Securities Act (Title 12,   Government Code);                       (D)  a Class A misdemeanor under:                             (i)     Section 306.051, Business & Commerce   Code; or                             (ii)     Subchapter B, Chapter 365, Health and   Safety Code, if the defendant has been previously convicted two   times of an offense under that subchapter;                       (E)     a Class B misdemeanor under Chapter 522,   Business & Commerce Code;                       (F)  an offense under:                             (i)     Section 326.002, Business & Commerce   Code;                             (ii)     Section 20.05, 20.06, 20.07, 42.10,   46.06(a)(1), or 46.14, Penal Code;                             (iii)  Chapter 71, Penal Code; or                             (iv)     Section 545.420 or 550.021,   Transportation Code;                       (G)     an offense punishable under Section 42.03(d)   or (e), Penal Code; or                       (H)     any other offense that results in a personal   injury to a victim and that is provided under:                             (i)  the Penal Code; or                             (ii)  a federal criminal law.           Art. 59A.002.  PURPOSE.  The purpose of this chapter is to:                 (1)     deter criminal activity by reducing the economic   incentives;                 (2)     increase the pecuniary loss that results from   engaging in criminal activity; and                 (3)     protect against the wrongful forfeiture of   property.           Art.   59A.003.     CRIMINAL ASSET FORFEITURE; PROPERTY SUBJECT   TO FORFEITURE.   (a)   The convicting court may order a person   convicted of an offense subject to forfeiture to forfeit any:                 (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)     instrumentality the person used in the commission   of the offense.           (b)     For purposes of this chapter, a person is considered   convicted if:                 (1)  a sentence is imposed on the person; or                 (2)     the person receives community supervision,   including deferred adjudication community supervision.           Art.   59A.004.     EXEMPT PROPERTY.   The following are exempt   from forfeiture:                 (1)  property that is homestead property;                 (2)  a motor vehicle valued at less than $10,000; and                 (3)  United States currency totaling $200 or less.           Art.   59A.005.     CONTRABAND.   A person may not have a property   interest in contraband.   Contraband is subject to seizure and shall   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 only if:                 (1)     a person is convicted of an offense subject to   forfeiture; and                 (2)     the state establishes by clear and convincing   evidence that the applicable requirements of Articles 59A.003,   59A.004, and 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 JOINT AND SEVERAL LIABILITY.   A defendant   convicted of an offense subject to forfeiture is not jointly and   severally liable for a forfeiture award owed by any other   defendant.   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.009.     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.           Art.   59A.010.     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:                       (A)     the seizure is immediately necessary to   prevent the removal or destruction of the personal property; and                       (B)     the personal property is forfeitable under   this chapter.           Art.   59A.011.     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   the probable cause for the seizure.           (b)     This article does not prohibit the attorney   representing the stat [Text truncated for display. 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