CODE OF CRIMINAL PROCEDURE CHAPTER 59.

FORFEITURE OF CONTRABAND

Art. 59.01. Definitions

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)(iv) 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.

(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), 21.11, 38.04, Subchapter B
of Chapter 43, or Chapter 29, 30, 31, 32, 33, 33A, or 35, Penal Code;
or

(iii) any felony under The Securities Act (Article 581-1 et seq.,
Vernon's Texas Civil Statutes);

(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; or

Text of subds. (2)(B)(vii), (2)(C), and (2)(D) as amended by Acts
2003, 78th Leg., ch. 198, Sec. 2.141 and Acts 2003, 78th Leg., ch.
257, Sec. 17

(vii) any felony under Chapter 31, 32, or 37, Penal Code, that
involves the state Medicaid program, or any felony under Chapter
36, Human Resources Code;

(C) the proceeds gained from the commission of a felony listed in
Paragraph (A) or (B) of this subdivision or a crime of violence; or

(D) acquired with proceeds gained from the commission of a felony
listed in Paragraph (A) or (B) of this subdivision or a crime of
violence.

Text of subds. (2)(B)(vii), (2)(C), and (2)(D) as amended by Acts 2003, 78th Leg., ch. 649, Sec. 3

 

(vii) a Class B misdemeanor under Section 35.58, 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)(vii) of this subdivision, or a crime of violence; or

(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)(vii) of this subdivision, or a crime of
violence.

(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.

(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.

 

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. The agency at any time may
transfer the property to a municipal or county law enforcement
agency for the use of that agency.

(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
30th 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 46th 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.

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.

 

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.

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