CODE OF CRIMINAL PROCEDURE
CHAPTER 59. FORFEITURE OF CONTRABAND
Art. 59.01. DEFINITIONS.
Text of subdivision as amended by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.14
Text of subdivision effective on April 1, 2009
(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, Subchapter B of Chapter 43, or Chapter 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 153, 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) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Chapter
522, Business & Commerce Code; or
(ix) a Class A misdemeanor under Section
35.153, Business & Commerce 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)(viii) of this subdivision, or a
crime of violence;
(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)(viii) of this
subdivision, or a crime of violence; or
(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.
In this chapter:
(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)(vii) of this
article, the term includes the attorney general.
Text of subdivision as amended by Acts 2007, 80th Leg., R.S., Ch.
822, Sec. 2
Text of subdivision effective until April 1, 2009
(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, Subchapter B of Chapter 43, or Chapter 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 153, 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) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Section
35.60, Business & Commerce Code; or
(ix) a Class A misdemeanor under Section
35.153, Business & Commerce 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)(viii) of this subdivision, or a
crime of violence;
(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)(viii) of this
subdivision, or a crime of violence; or
(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.
(3) "Crime of violence" means:
(A) any criminal offense defined in the Penal Code or in a
federal criminal law that results in a personal injury to a victim;
or
(B) an act that is not an offense under the Penal Code
involving the operation of a motor vehicle, aircraft, or water
vehicle that results in injury or death sustained in an accident
caused by a driver in violation of Section 550.021, Transportation
Code.
(4) "Interest holder" means the bona fide holder of a
perfected lien or a perfected security interest in property.
(5) "Law enforcement agency" means an agency of the state or
an agency of a political subdivision of the state authorized by law
to employ peace officers.
(6) "Owner" means a person who claims an equitable or legal
ownership interest in property.
(7) "Proceeds" includes income a person accused or convicted
of a crime or the person's representative or assignee receives
from:
(A) a movie, book, magazine article, tape recording,
phonographic record, radio or television presentation, telephone
service, electronic media format, including an Internet website, or
live entertainment in which the crime was reenacted; or
(B) the sale of tangible property the value of which is
increased by the notoriety gained from the conviction of an offense
by the person accused or convicted of the crime.
(8) "Seizure" means the restraint of property by a
peace officer under Article 59.03(a) or (b) of this code, whether
the officer restrains the property by physical force or by a display
of the officer's authority, and includes the collection of property
or the act of taking possession of property.
(9) "Depository account" means the obligation of a regulated
financial institution to pay the account owner under a written
agreement, including a checking account, savings account, money
market account, time deposit, NOW account, or certificate of
deposit.
(10) "Primary state or federal financial institution
regulator" means the state or federal regulatory agency that
chartered and comprehensively regulates a regulated financial
institution.
(11) "Regulated financial institution" means a depository
institution chartered by a state or federal government, the
deposits of which are insured by the Federal Deposit Insurance
Corporation or the National Credit Union Administration.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989. Subd. (2) amended by Acts 1991, 72nd Leg., ch. 102, Sec.
2, eff. Sept. 1, 1991; Subds. (1), (2) amended by Acts 1993, 73rd
Leg., ch. 828, Sec. 1, eff. Sept. 1, 1993; Subd. (2) amended by Acts
1993, 73rd Leg., ch. 761, Sec. 5, eff. Sept. 1, 1993. Amended by
Acts 1993, 73rd Leg., ch. 780, Sec. 1, eff. Sept. 1, 1993. Subd. (2)
amended by Acts 1995, 74th Leg., ch. 621, Sec. 3, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 708, Sec. 2, eff. Sept. 1, 1995;
Subd. (3) amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.91,
5.95(112), eff. Sept. 1, 1995; Subd. (2) amended by Acts 1997, 75th
Leg., ch. 306, Sec. 6, eff. Sept. 1, 1997; Subd. (2) amended by Acts
1999, 76th Leg., ch. 62, Sec. 7.48, eff. Sept. 1, 1999; Subd. (3)
amended by Acts 1999, 76th Leg., ch. 62, Sec. 3.09, eff. Sept. 1,
1999; Subd. (2) amended by Acts 2001, 77th Leg., ch. 467, Sec. 1,
eff. Sept. 1, 2001; Subd. (7) amended by Acts 2001, 77th Leg., ch.
124, Sec. 1, eff. Sept. 1, 2001; Subds. (9) to (11) added by Acts
2001, 77th Leg., ch. 438, Sec. 1, eff. Sept. 1, 2001; Subds. (1) and
(2) amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.141, eff. Sept.
1, 2003; Subds. (1) and (2) amended by Acts 2003, 78th Leg., ch.
257, Sec. 17, eff. Sept. 1, 2003; Subd. (2) amended by Acts 2003,
78th Leg., ch. 649, Sec. 3, eff. Sept. 1, 2003; Subd. (2) amended by
Acts 2003, 78th Leg., ch. 1005, Sec. 7, eff. Sept. 1, 2003; Subd.
(7) amended by Acts 2003, 78th Leg., ch. 428, Sec. 1, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch. 617, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 944, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 944, Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1026, Sec. 3, eff. September 1,
2005.
Acts 2005, 79th Leg., Ch. 1026, Sec. 4, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 127, Sec. 6, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 822, Sec. 2, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 885, Sec. 2.14, eff. April 1,
2009.
Art. 59.02. FORFEITURE OF CONTRABAND. (a) Property that is
contraband is subject to seizure and forfeiture under this chapter.
(b) Any property that is contraband other than property held
as evidence in a criminal investigation or a pending criminal case,
money, a negotiable instrument, or a security that is seized under
this chapter may be replevied by the owner or interest holder of the
property, on execution of a good and valid bond with sufficient
surety in a sum equal to the appraised value of the property
replevied. The bond may be approved as to form and substance by the
court after the court gives notice of the bond to the authority
holding the seized property. The bond must be conditioned:
(1) on return of the property to the custody of the state on
the day of hearing of the forfeiture proceedings; and
(2) that the interest holder or owner of the property will
abide by the decision that may be made in the cause.
(c) An owner or interest holder's interest in property may
not be forfeited under this chapter if the owner or interest holder
proves by a preponderance of the evidence that the owner or interest
holder acquired and perfected the interest:
(1) before or during the act or omission giving rise to
forfeiture or, if the property is real property, he acquired an
ownership interest, security interest, or lien interest before a
lis pendens notice was filed under Article 59.04(g) of this code and
did not know or should not reasonably have known of the act or
omission giving rise to the forfeiture or that it was likely to
occur at or before the time of acquiring and perfecting the interest
or, if the property is real property, at or before the time of
acquiring the ownership interest, security interest, or lien
interest; or
(2) after the act or omission giving rise to the forfeiture,
but before the seizure of the property, and only if the owner or
interest holder:
(A) was, at the time that the interest in the property was
acquired, an owner or interest holder for value; and
(B) was without reasonable cause to believe that the property
was contraband and did not purposefully avoid learning that the
property was contraband.
(d) Notwithstanding any other law, if property is seized from
the possession of an owner or interest holder who asserts an
ownership interest, security interest, or lien interest in the
property under applicable law, the owner or interest holder's
rights remain in effect during the pendency of proceedings under
this chapter as if possession of the property had remained with the
owner or interest holder.
(e) On motion by any party or on the motion of the court,
after notice in the manner provided by Article 59.04 of this code to
all known owners and interest holders of property subject to
forfeiture under this chapter, and after a hearing on the matter,
the court may make appropriate orders to preserve and maintain the
value of the property until a final disposition of the property is
made under this chapter, including the sale of the property if that
is the only method by which the value of the property may be
preserved until final disposition.
(f) Any property that is contraband and has been seized by the
institutional division of the Texas Department of Criminal Justice
shall be forfeited to the institutional division under the same
rules and conditions as for other forfeitures.
(g) An individual, firm, corporation, or other entity insured
under a policy of title insurance may not assert a claim or cause of
action on or because of the policy if the claim or cause of action is
based on forfeiture under this chapter and, at or before the time of
acquiring the ownership of real property, security interest in real
property, or lien interest against real property, the insured knew
or reasonably should have known of the act or omission giving rise
to the forfeiture or that the act or omission was likely to occur.
(h)(1) An owner or interest holder's interest in property may
not be forfeited under this chapter if at the forfeiture hearing the
owner or interest holder proves by a preponderance of the evidence
that the owner or interest holder was not a party to the offense
giving rise to the forfeiture and that the contraband:
(A) was stolen from the owner or interest holder before being
used in the commission of the offense giving rise to the forfeiture;
(B) was purchased with:
(i) money stolen from the owner or interest holder; or
(ii) proceeds from the sale of property stolen from the owner
or interest holder; or
(C) was used or intended to be used without the effective
consent of the owner or interest holder in the commission of the
offense giving rise to the forfeiture.
(2) An attorney representing the state who has a reasonable
belief that property subject to forfeiture is described by
Subdivision (1) and who has a reasonable belief as to the identity
of the rightful owner or interest holder of the property shall
notify the owner or interest holder as provided by Article 59.04.
(3) An attorney representing the state is not liable in an
action for damages resulting from an act or omission in the
performance of the duties imposed by Subdivision (2).
(4) The exclusive remedy for failure by the attorney
representing the state to provide the notice required under
Subdivision (2) is submission of that failure as a ground for new
trial in a motion for new trial or bill of review.
(i) The forfeiture provisions of this chapter apply to
contraband as defined by Article 59.01(2)(B)(v) of this code only
in a municipality with a population of 250,000 or more.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989. Subsec. (g) added by Acts 1993, 73rd Leg., ch. 828, Sec.
2, eff. Sept. 1, 1993; Subsecs. (c) to (g) amended by Acts 2001,
77th Leg., ch. 438, Sec. 2, eff. Sept. 1, 2001; Subsec. (h) added by
Acts 2001, 77th Leg., ch. 438, Sec. 2, eff. Sept. 1, 2001, and by
Acts 2001, 77th Leg., ch. 929, Sec. 1, eff. Sept. 1, 2001. Subsec.
as added by Acts 2001, 77th Leg. ch. 438, Sec. 2 renumbered as
subsec. (i) by Acts 2003, 78th Leg., ch. 1275, Sec. 2(9), eff. Sept.
1, 2003.
Art. 59.03. SEIZURE OF CONTRABAND. (a) Property subject to
forfeiture under this chapter, other than property described by
Article 59.12, may be seized by any peace officer under authority of
a search warrant.
(b) Seizure of property subject to forfeiture may be made
without warrant if:
(1) the owner, operator, or agent in charge of the property
knowingly consents;
(2) the seizure is incident to a search to which the owner,
operator, or agent in charge of the property knowingly consents;
(3) the property subject to seizure has been the subject of a
prior judgment in favor of the state in a forfeiture proceeding
under this chapter; or
(4) the seizure was incident to a lawful arrest, lawful
search, or lawful search incident to arrest.
(c) A peace officer who seizes property under this chapter
has custody of the property, subject only to replevy under Article
59.02 of this code or an order of a court. A peace officer who has
custody of property shall provide the attorney representing the
state with a sworn statement that contains a schedule of the
property seized, an acknowledgment that the officer has seized the
property, and a list of the officer's reasons for the seizure. Not
later than 72 hours after the seizure, the peace officer shall:
(1) place the property under seal;
(2) remove the property to a place ordered by the court; or
(3) require a law enforcement agency of the state or a
political subdivision to take custody of the property and move it to
a proper location.
(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 who seizes property under this chapter may not at the
time of seizure request, require, or in any manner induce any
person, including a person who asserts an interest in or right to
the property seized, to execute a document purporting to waive the
person's interest in or rights to the property.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989. Subsec. (a) amended by Acts 2001, 77th Leg., ch. 438,
Sec. 3, eff. Sept. 1, 2001; Subsec. (d) added by Acts 2001, 77th
Leg., ch. 929, Sec. 2, eff. Sept. 1, 2001.
Art. 59.04. NOTIFICATION OF FORFEITURE PROCEEDING. (a) If a
peace officer seizes property under this chapter, the attorney
representing the state shall commence proceedings under this
section not later than the 30th day after the date of the seizure.
(b) A forfeiture proceeding commences under this chapter when
the attorney representing the state files a notice of the seizure
and intended forfeiture in the name of the state with the clerk of
the district court in the county in which the seizure is made. The
attorney representing the state must attach to the notice the peace
officer's sworn statement under Article 59.03 of this code or, if
the property has been seized under Article 59.12(b), the statement
of the terms and amount of the depository account or inventory of
assets provided by the regulated financial institution to the peace
officer executing the warrant in the manner described by Article
59.12(b). Except as provided by Subsection (c) of this article, the
attorney representing the state shall cause certified copies of the
notice to be served on the following persons in the same manner as
provided for the service of process by citation in civil cases:
(1) the owner of the property; and
(2) any interest holder in the property.
(c) If the property is a motor vehicle, and if there is
reasonable cause to believe that the vehicle has been registered
under the laws of this state, the attorney representing the state
shall ask the Texas Department of Transportation to identify from
its records the record owner of the vehicle and any interest holder.
If the addresses of the owner and interest holder are not otherwise
known, the attorney representing the state shall request citation
be served on such persons at the address listed with the Texas
Department of Transportation. If the citation issued to such
address is returned unserved, the attorney representing the state
shall cause a copy of the notice of the seizure and intended
forfeiture to be posted at the courthouse door, to remain there for
a period of not less than 30 days. If the owner or interest holder
does not answer or appear after the notice has been so posted, the
court shall enter a judgment by default as to the owner or interest
holder, provided that the attorney representing the state files a
written motion supported by affidavit setting forth the attempted
service. An owner or interest holder whose interest is forfeited in
this manner shall not be liable for court costs. If the person in
possession of the vehicle at the time of the seizure is not the
owner or the interest holder of the vehicle, notification shall be
provided to the possessor in the same manner specified for
notification to an owner or interest holder.
(d) If the property is a motor vehicle and is not registered
in this state, the attorney representing the state shall attempt to
ascertain the name and address of the person in whose name the
vehicle is licensed in another state. If the vehicle is licensed in
a state that has a certificate of title law, the attorney
representing the state shall request the appropriate agency of that
state to identify the record owner of the vehicle and any interest
holder.
(e) If a financing statement is required by law to be filed to
perfect a security interest affecting the property, and if there is
reasonable cause to believe that a financing statement has been
filed, the attorney representing the state who commences the
proceedings shall ask the appropriate official designated by
Chapter 9, Business & Commerce Code, to identify the record owner of
the property and the person who is an interest holder.
(f) If the property is an aircraft or a part of an aircraft,
and if there is reasonable cause to believe that a perfected
security instrument affects the property, the attorney
representing the state shall request an administrator of the
Federal Aviation Administration to identify from the records of
that agency the record owner of the property and the holder of the
perfected security instrument. The attorney representing the state
shall also notify the Department of Public Safety in writing of the
fact that an aircraft has been seized and shall provide the
department with a description of the aircraft.
(g) If the property is real property, the attorney
representing the state, not later than the third day after the date
proceedings are commenced, shall file a lis pendens notice
describing the property with the county clerk of each county in
which the property is located.
(h) For all other property subject to forfeiture, if there is
reasonable cause to believe that a perfected security instrument
affects the property, the attorney representing the state shall
make a good faith inquiry to identify the holder of the perfected
security instrument.
(i) Except as provided by Section (c) of this article, the
attorney representing the state who commences the proceedings shall
cause the owner and any interest holder to be named as a party and to
be served with citation as provided by the Texas Rules of Civil
Procedure.
(j) A person who was in possession of the property at the time
it was seized shall be made a party to the proceeding.
(k) If no person was in possession of the property at the time
it was seized, and if the owner of the property is unknown, the
attorney representing the state shall file with the clerk of the
court in which the proceedings are pending an affidavit stating
that no person was in possession of the property at the time it was
seized and that the owner of the property is unknown. The clerk of
the court shall issue a citation for service by publication
addressed to "The Unknown Owner of _______," filling in the blank
space with a reasonably detailed description of the property
subject to forfeiture. The citation must contain the other
requisites prescribed by and be served as provided by Rules 114,
115, and 116, Texas Rules of Civil Procedure.
(l) Proceedings commenced under this chapter may not proceed
to hearing unless the judge who is to conduct the hearing is
satisfied that this article has been complied with and that the
attorney representing the state will introduce into evidence at the
hearing any answer received from an inquiry required by Subsections
(c)-(h) of this article.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989. Subsec. (f) amended by Acts 1991, 72nd Leg., ch. 14, Sec.
282, eff. Sept. 1, 1991; Subsec. (b) amended by Acts 1995, 74th
Leg., ch. 533, Sec. 1, eff. Sept. 1, 1995; Subsec. (c) amended by
Acts 1995, ch. 165, Sec. 22(25), eff. Sept. 1, 1995; amended by
Acts 1995, 74th Leg., ch. 533, Sec. 1, eff. Sept. 1, 1995; Subsec.
(i) amended by Acts 1995, 74th Leg., ch. 533, Sec. 1, eff. Sept. 1,
1995; Subsec. (b) amended by Acts 2001, 77th Leg., ch. 438, Sec. 4,
eff. Sept. 1, 2001.
Art. 59.05. FORFEITURE HEARING. (a) All parties must comply
with the rules of pleading as required in civil suits.
(b) All cases under this chapter shall proceed to trial in the
same manner as in other civil cases. The state has the burden of
proving by a preponderance of the evidence that property is subject
to forfeiture.
(c) It is an affirmative defense to forfeiture under this
chapter of property belonging to the spouse of a person whose acts
gave rise to the seizure of community property that, because of an
act of family violence, as defined by Section 71.004, Family Code,
the spouse was unable to prevent the act giving rise to the seizure.
(d) A final conviction for an underlying offense is not a
requirement for forfeiture under this chapter. An owner or
interest holder may present evidence of a dismissal or acquittal of
an underlying offense in a forfeiture proceeding, and evidence of
an acquittal raises a presumption that the property or interest
that is the subject of the hearing is nonforfeitable. This
presumption can be rebutted by evidence that the owner or interest
holder knew or should have known that the property was contraband.
(e) It is the intention of the legislature that asset
forfeiture is remedial in nature and not a form of punishment. If
the court finds that all or any part of the property is subject to
forfeiture, the judge shall forfeit the property to the state, with
the attorney representing the state as the agent for the state,
except that if the court finds that the nonforfeitable interest of
an interest holder in the property is valued in an amount greater
than or substantially equal to the present value of the property,
the court shall order the property released to the interest holder.
If the court finds that the nonforfeitable interest of an interest
holder is valued in an amount substantially less than the present
value of the property and that the property is subject to
forfeiture, the court shall order the property forfeited to the
state with the attorney representing the state acting as the agent
of the state, and making necessary orders to protect the
nonforfeitable interest of the interest holder. On final judgment
of forfeiture, the attorney representing the state shall dispose of
the property in the manner required by Article 59.06 of this code.
(f) On forfeiture to the state of an amount greater than
$2,500, the clerk of the court in which the forfeiture proceeding
was held is entitled to court costs in that proceeding as in other
civil proceedings unless the forfeiture violates federal
requirements for multijurisdictional task force cases authorized
under Chapter 362, Local Government Code. The procedure for
collecting the costs is the procedure established under Subsections
(a) and (c), Article 59.06.
(g) If property is seized at a federal checkpoint, the notice
of seizure and intended forfeiture may be filed in and the
proceeding may be held in:
(1) the county in which the seizure occurred; or
(2) with the consent of the owner, operator, or agent in
charge of the property, a county that is adjacent to the county in
which the seizure occurred, if both counties are in the same
judicial district.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989. Subsec. (d) amended by Acts 1993, 73rd Leg., ch. 780,
Sec. 2, eff. Sept. 1, 1993; Subsec. (e) amended by Acts 1995, 74th
Leg., ch. 533, Sec. 2, eff. Sept. 1, 1995; Subsec. (f) added by Acts
1999, 76th Leg., ch. 582, Sec. 1, eff. Sept. 1, 1999; Subsec. (c)
amended by Acts 2003, 78th Leg., ch. 1276, Sec. 7.002(l), eff. Sept.
1, 2003; Subsec. (g) added by Acts 2003, 78th Leg., ch. 1153, Sec.
1, eff. Sept. 1, 2003.
Art. 59.06. DISPOSITION OF FORFEITED PROPERTY. (a) Except as
provided by Subsection (k), all forfeited property shall be
administered by the attorney representing the state, acting as the
agent of the state, in accordance with accepted accounting
practices and with the provisions of any local agreement entered
into between the attorney representing the state and law
enforcement agencies. If a local agreement has not been executed,
the property shall be sold on the 75th day after the date of the
final judgment of forfeiture at public auction under the direction
of the county sheriff, after notice of public auction as provided by
law for other sheriff's sales. The proceeds of the sale shall be
distributed as follows:
(1) to any interest holder to the extent of the interest
holder's nonforfeitable interest; and
(2) the balance, if any, after the deduction of court costs to
which a district court clerk is entitled under Article 59.05(f)
and, after that deduction, the deduction of storage and disposal
costs, to be deposited not later than the 30th day after the date of
the sale in the state treasury to the credit of the general revenue
fund.
(b) If a local agreement exists between the attorney
representing the state and law enforcement agencies, the attorney
representing the state may transfer the property to law enforcement
agencies to maintain, repair, use, and operate the property for
official purposes if the property is free of any interest of an
interest holder. The agency receiving the forfeited property may
purchase the interest of an interest holder so that the property can
be released for use by the agency. The agency receiving the
forfeited property may maintain, repair, use, and operate the
property with money appropriated for current operations. If the
property is a motor vehicle subject to registration under the motor
vehicle registration laws of this state, the agency receiving the
forfeited vehicle is considered to be the purchaser and the
certificate of title shall issue to the agency. A law enforcement
agency to which property is transferred under this subsection at
any time may transfer or loan the property to any other municipal or
county agency or to a school district for the use of that agency or
district. A municipal or county agency or school district to which
a law enforcement agency loans a motor vehicle under this
subsection shall maintain any automobile insurance coverage for the
vehicle that is required by law.
(b-1) If a loan is made by a sheriff's office or by a
municipal police department, the commissioners court of the county
in which the sheriff has jurisdiction or the governing body of the
municipality in which the department has jurisdiction, as
applicable, may revoke the loan at any time by notifying the
receiving agency or district, by mail, that the receiving agency or
district must return the loaned vehicle to the loaning agency
before the seventh day after the date the receiving agency or
district receives the notice.
(b-2) An agency that loans property under this article
shall:
(1) keep a record of the loan, including the name of
the agency to which the vehicle was loaned, the fair market value of
the vehicle, and where the receiving agency will use the vehicle;
and
(2) update the record when the information relating to
the vehicle changes.
(c) If a local agreement exists between the attorney
representing the state and law enforcement agencies, all money,
securities, negotiable instruments, stocks or bonds, or things of
value, or proceeds from the sale of those items, shall be deposited,
after the deduction of court costs to which a district court clerk
is entitled under Article 59.05(f), according to the terms of the
agreement into one or more of the following funds:
(1) 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 his office;
(2) a special fund in the municipal treasury if distributed
to a municipal law enforcement agency, to be used solely for law
enforcement purposes, such as salaries and overtime pay for
officers, officer training, specialized investigative equipment
and supplies, and items used by officers in direct law enforcement
duties;
(3) a special fund in the county treasury if distributed to a
county law enforcement agency, to be used solely for law
enforcement purposes; or
(4) a special fund in the state law enforcement agency if
distributed to a state law enforcement agency, to be used solely for
law enforcement purposes.
(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 audit provisions
established under this article. A 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. The
head of the agency or attorney representing the state may not use
the existence of an award to increase a salary, expense, or
allowance for an employee of the attorney or agency who is budgeted
by the commissioners court or governing body unless the
commissioners court or governing body first approves the
expenditure.
(e) On the sale of contraband under this article, the
appropriate state agency shall issue a certificate of title to the
recipient if a certificate of title is required for the property by
other law.
(f) A final judgment of forfeiture under this chapter
perfects the title of the state to the property as of the date that
the contraband was seized or the date the forfeiture action was
filed, whichever occurred first, except that if the property
forfeited is real property, the title is perfected as of the date a
notice of lis pendens is filed on the property.
(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 such proceeds and property in an 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 shall be completed on a form provided by the attorney
general. Certified copies of the audit shall be delivered by the
law enforcement agency or attorney representing the state to the
comptroller's office and the attorney general not later than the
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. On notice under this
subdivision, the comptroller shall perform the audit otherwise
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.
(h) As a specific exception to the requirement of
Subdivisions (1)-(3) of Subsection (c) of this article that the
funds described by those subdivisions be used only for the official
purposes of the attorney representing the state or for law
enforcement purposes, on agreement between the attorney
representing the state or the head of a law enforcement agency and
the governing body of a political subdivision, the attorney
representing the state or the head of the law enforcement agency
shall comply with the request of the governing body to deposit not
more than a total of 10 percent of the gross amount credited to the
attorney's or agency's fund into the treasury of the political
subdivision. The governing body of the political subdivision
shall, by ordinance, order, or resolution, use funds received under
this subsection for:
(1) nonprofit programs for the prevention of drug abuse;
(2) nonprofit chemical dependency treatment facilities
licensed under Chapter 464, Health and Safety Code;
(3) nonprofit drug and alcohol rehabilitation or prevention
programs administered or staffed by professionals designated as
qualified and credentialed by the Texas Commission on Alcohol and
Drug Abuse; or
(4) financial assistance as described by Subsection (o).
(i) The governing body of a political subdivision may not use
funds received under this subchapter for programs or facilities
listed under Subsections (h)(1)-(3) if an officer of or member of
the Board of Directors of the entity providing the program or
facility is related to a member of the governing body, the attorney
representing the state, or the head of the law enforcement agency
within the third degree by consanguinity or the second degree by
affinity.
(j) As a specific exception to Subdivision (4) of Subsection
(c) of this article, the director of a state law enforcement agency
may use not more than 10 percent of the amount credited to the
special fund of the agency under that subdivision for the
prevention of drug abuse and the treatment of persons with
drug-related problems.
(k)(1) The attorney for the state shall transfer all
forfeited property that is income from, or acquired with the income
from, a movie, book, magazine article, tape recording, phonographic
record, radio or television presentation, telephone service,
electronic media format, including an Internet website, or live
entertainment in which a crime is reenacted to the attorney
general.
(2) The attorney for the state shall transfer to the attorney
general all income from the sale of tangible property the value of
which is increased by the notoriety gained from the conviction of an
offense by the person accused or convicted of the crime, minus the
deduction authorized by this subdivision. The attorney for the
state shall determine the fair market value of property that is
substantially similar to the property that was sold but that has not
been increased in value by notoriety and deduct that amount from the
proceeds of the sale. After transferring income to the attorney
general, the attorney for the state shall transfer the remainder of
the proceeds of the sale to the owner of the property. The attorney
for the state, the attorney general, or a person who may be entitled
to claim money from the escrow account described by Subdivision (3)
in satisfaction of a claim may at any time bring an action to enjoin
the waste of income described by this subdivision.
(3) The attorney general shall deposit the money or proceeds
from the sale of the property into an escrow account. The money in
the account is available to satisfy a judgment against the person
who committed the crime in favor of a victim of the crime if the
judgment is for damages incurred by the victim caused by the
commission of the crime. The attorney general shall transfer the
money in the account that has not been ordered paid to a victim in
satisfaction of a judgment to the compensation to victims of crime
fund on the fifth anniversary of the date the account was
established. In this subsection, "victim" has the meaning assigned
by Article 56.32.
(l) A law enforcement agency that, or an attorney
representing the state who, does not receive proceeds or property
under this chapter during an annual period as described by
Subsection (g) shall, not later than the 30th day after the date on
which the annual period ends, report to the attorney general that
the agency or attorney, as appropriate, did not receive proceeds or
property under this chapter during the annual period.
(m) As a specific exception to Subdivisions (1)-(3) of
Subsection (c), a law enforcement agency or attorney representing
the state may use proceeds received under this chapter to contract
with a person or entity to prepare an audit as required by
Subsection (g).
(n) As a specific exception to Subsection (c)(2) or (3), a
local law enforcement agency may transfer not more than a total of
10 percent of the gross amount credited to the agency's fund to a
separate special fund in the treasury of the political subdivision.
The agency shall administer the separate special fund, and
expenditures from the fund are at the sole discretion of the agency
and may be used only for financial assistance as described by
Subsection (o).
(o) The governing body of a political subdivision or a local
law enforcement agency may provide financial assistance under
Subsection (h)(4) or (n) only to a person who is a Texas resident,
who plans to enroll or is enrolled at an institution of higher
education in an undergraduate degree or certificate program in a
field related to law enforcement, and who plans to return to that
locality to work for the political subdivision or the agency in a
field related to law enforcement. To ensure the promotion of a law
enforcement purpose of the political subdivision or the agency, the
governing body of the political subdivision or the agency shall
impose other reasonable criteria related to the provision of this
financial assistance, including a requirement that a recipient of
the financial assistance work for a certain period of time for the
political subdivision or the agency in a field related to law
enforcement and including a requirement that the recipient sign an
agreement to perform that work for that period of time. In this
subsection, "institution of higher education" has the meaning
assigned by Section 61.003, Education Code.
(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)(vii). If the
forfeited property consists of property 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.
(q)(1) Notwithstanding any other provision of this article,
a multicounty drug task force, or a county or municipality
participating in the task force, that is not established in
accordance with Section 362.004, Local Government Code, or that
fails to comply with the policies and procedures established by the
Department of Public Safety under that section, and that
participates in the seizure of contraband shall forward to the
comptroller all proceeds received by the task force from the
forfeiture of the contraband. The comptroller shall deposit the
proceeds in the state treasury to the credit of the general revenue
fund.
(2) The attorney general shall ensure the enforcement
of Subdivision (1) by filing any necessary legal proceedings in the
county in which the contraband is forfeited or in Travis County.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989. Subsec. (c) amended by Acts 1991, 72nd Leg., ch. 312,
Sec. 2, eff. Sept. 1, 1991; Subsec. (h) added by Acts 1991, 72nd
Leg., ch. 312, Sec. 1, eff. Sept. 1, 1991; Subsec. (a) amended by
Acts 1993, 73rd Leg., ch. 780, Sec. 3, eff. Sept. 1, 1993; Subsec.
(g) amended by Acts 1993, 73rd Leg., ch. 814, Sec. 1, eff. Aug. 30,
1993; Subsec. (i) added by Acts 1993, 73rd Leg., ch. 780, Sec. 4,
eff. Sept. 1, 1993; Subsec. (i) amended by Acts 1995, 74th Leg.,
ch. 76, Sec. 5.95(112), eff. Sept. 1, 1995; Subsec. (g) amended by
and Subsecs. (j), (k) added by Acts 1997, 75th Leg., ch. 975, Sec.
1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 707,
Sec. 1, eff. Sept. 1, 1999; Subsecs. (a), (c) amended by Acts 1999,
76th Leg., ch. 582, Sec. 2, eff. Sept. 1, 1999; Subsec. (g) amended
by Acts 1999, 76th Leg., ch. 481, Sec. 1, eff. Sept. 1, 1999;
Subsec. (j) amended by Acts 1999, 76th Leg., ch. 481, Sec. 2, eff.
Sept. 1, 1999; Subsec. (g) amended by Acts 2001, 77th Leg., ch.
929, Sec. 3, eff. Sept. 1, 2001; Subsec. (k) amended by Acts 2001,
77th Leg., ch. 124, Sec. 2, eff. Sept. 1, 2001; Subsec. (k)(l)
amended by Acts 2003, 78th Leg., ch. 428, Sec. 2, eff. Sept. 1,
2003; Subsec. (p) added by Acts 2003, 78th Leg., ch. 198, Sec.
2.142, eff. Sept. 1, 2003; Subsec. (p) added by Acts 2003, 78th
Leg., ch. 257, Sec. 18, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 556, Sec. 4, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 120, Sec. 2, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 446, Sec. 1, eff. September 1,
2007.
Art. 59.07. IMMUNITY. This chapter does not impose any
additional liability on any authorized state, county, or municipal
officer engaged in the lawful performance of the officer's duties.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989.
Art. 59.08. DEPOSIT OF MONEY PENDING DISPOSITION. (a) If
money that is contraband is seized, the attorney representing the
state may deposit the money in an interest-bearing bank account in
the jurisdiction of the attorney representing the state until a
final judgment is rendered concerning the contraband.
(b) If a final judgment is rendered concerning contraband,
money that has been placed in an interest-bearing bank account
under Subsection (a) of this article shall be distributed in the
same manner as proceeds are distributed under Article 59.06 of this
code, with any interest being distributed in the same manner and
used for the same purpose as the principal.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989.
Art. 59.09. RIGHT TO ATTORNEY NOT TO BE ABRIDGED. This
chapter is not intended to abridge an accused person's right to
counsel in a criminal case.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989.
Art. 59.10. ELECTION OF LAWS. If property is subject to
forfeiture under this chapter and under any other law of this state,
the attorney representing the state may bring forfeiture
proceedings under either law.
Added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 1, eff. Oct.
18, 1989.
Art. 59.11. REPORT OF SEIZED AND FORFEITED AIRCRAFT. Not
later than the 10th day after the last day of each quarter of the
fiscal year, the Department of Public Safety shall report to the
State Aircraft Pooling Board:
(1) a description of each aircraft that the department has
received by forfeiture under this chapter during the preceding
quarter and the purposes for which the department intends to use the
aircraft; and
(2) a description of each aircraft the department knows to
have been seized under this chapter during the preceding quarter
and the purposes for which the department would use the aircraft if
it were forfeited to the department.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 283, eff. Sept. 1, 1991.
Art. 59.12. SEIZURE OF ACCOUNTS AND ASSETS AT REGULATED
FINANCIAL INSTITUTION. (a) This article applies to property
consisting of a depository account or assets in a regulated
financial institution.
(b) A regulated financial institution, at the time a seizure
warrant issued under Chapter 18 is served on the institution, may
either:
(1) pay an account or tender assets held as security for an
obligation owed to the institution at the time of the service of the
seizure warrant; or
(2) transfer the depository account or assets to a segregated
interest-bearing account in the name of the attorney representing
the state as trustee, to remain in the account until the time has
expired for an appeal from a decision of the court relating to the
forfeiture of accounts or assets under Article 59.05.
(c) Immediately on service of the seizure warrant, the
regulated financial institution shall take action as necessary to
segregate the account or assets and shall provide evidence,
certified by an officer of the institution, of the terms and amount
of the account or a detailed inventory of the assets to the peace
officer serving the warrant. Except as otherwise provided by this
article, a transaction involving an account or assets, other than
the deposit or reinvestment of interest, dividends, or other
normally recurring payments on the account or assets that do not
involve distribution of proceeds to the owner, is not authorized
unless approved by the court that issued the seizure warrant or, if
a forfeiture action has been instituted, the court in which that
action is pending.
(d) Any accrual to the value of the account or assets during
the pendency of the forfeiture proceedings is subject to the
procedures for the disbursement of interest under Article 59.08.
(e) If the regulated financial institution fails to release
the depository account or assets to a peace officer pursuant to a
seizure warrant or transfer the account or assets as required by
Subsection (b), and as a result cannot comply with the court's
forfeiture order, the court:
(1) shall order the regulated financial institution and its
culpable officers, agents, or employees to pay actual damages,
attorney's fees, and court costs incurred as a result of the
institution's failure to comply; and
(2) may find the regulated financial institution and its
culpable officers, agents, or employees in contempt.
(f) A regulated financial institution that complies with this
article is not liable in damages because of the compliance.
(g) This article does not:
(1) impair the right of the state to obtain possession of
physical evidence or to seize a depository account or other assets
for purposes other than forfeiture under this chapter; or
(2) waive criminal or civil remedies available under other
law.
Added by Acts 2001, 77th Leg., ch. 438, Sec. 5, eff. Sept. 1, 2001.
Art. 59.13. DISCLOSURE OF INFORMATION RELATING TO ACCOUNTS
AND ASSETS AT REGULATED FINANCIAL INSTITUTION. (a) The attorney
representing the state may disclose information to the primary
state or federal financial institution regulator, including grand
jury information or otherwise confidential information, relating
to any action contemplated or brought under this chapter that
involves property consisting of a depository account in a regulated
financial institution or assets held by a regulated financial
institution as security for an obligation owed to a regulated
financial institution. An attorney representing the state who
discloses information as permitted by this subsection is not
subject to contempt under Article 20.02 for that disclosure.
(b) A primary state or federal financial institution
regulator shall keep confidential any information provided by the
attorney representing the state under Subsection (a). The sharing
of information under Subsection (a) by a representative of the
state is not considered a waiver by the state of any privilege or
claim of confidentiality.
(c) A regulator described by Subsection (b) commits an
offense if the regulator knowingly discloses information in
violation of this article. An offense under this subsection is
punishable by confinement in jail for a period not to exceed 30
days, a fine not to exceed $500, or both such confinement and fine.
Added by Acts 2001, 77th Leg., ch. 438, Sec. 5, eff. Sept. 1, 2001.
Art. 59.14. NOTICE TO PRIMARY STATE AND FEDERAL FINANCIAL
INSTITUTION REGULATORS. (a) Before taking any action under this
chapter that implicates a potentially culpable officer or director
of a regulated financial institution, the attorney representing the
state shall notify the banking commissioner, who shall notify the
appropriate state or federal financial institution regulator.
(b) A state or federal financial institution regulator shall
keep confidential any information provided by the attorney
representing the state under Subsection (a).
(c) A regulator described by Subsection (b) commits an
offense if the regulator knowingly discloses information in
violation of this article. An offense under this subsection is
punishable by confinement in jail for a period not to exceed 30
days, a fine not to exceed $500, or both such confinement and fine.
(d) The provision of notice under Subsection (a) is not
considered a waiver by the state of any privilege or claim of
confidentiality.
Added by Acts 2001, 77th Leg., ch. 438, Sec. 5, eff. Sept. 1, 2001.