bill makes the state prove its case before forfeiture

The text as introduced · 1,460 words

89R4327 JRR-D

By: Eckhardt
S.B. No. 352

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), shall 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, 2025.