HBA-AMW H.B. 2696 77(R)   BILL ANALYSIS


Office of House Bill AnalysisH.B. 2696
By: Hinojosa
Criminal Jurisprudence
4/2/2001
Introduced



BACKGROUND AND PURPOSE 

Recently, several states, including Texas, have been examining the use of
criminal asset forfeiture as a tool to further discourage and impede
criminal activities.  Problems found with the existing forfeiture system
include the lack of adequate enforcement of auditing requirements, the
availability of more lenient federal forfeiture remedies, and reports of
seizures of cash without proper cause. House Bill 2696 modifies current
asset forfeiture provisions and procedures.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

House Bill 2696 amends the Code of Criminal Procedure to modify provisions
relating to civil asset forfeiture.  The bill excludes from the definition
of "contraband" proceeds or property acquired from the commission of
certain felonies that is valued less than $10,000 and in personal
possession at the time of seizure.  The bill provides that for any property
which is contraband by virtue of a temporary conveyance, and which is
contraband in related offenses three separate times in any two-year period,
the transferor cannot offer the defense that the transferor 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. 

The bill provides that if an interested party is also a defendant in the
underlying criminal action, and counsel is provided by the state, the
counsel can be available for the forfeiture action with the attorney's
remuneration to follow the standards in criminal indigent representation. 

The bill provides that no forfeiture proceeding shall be brought more than
one year after trial or a plea of guilty or nolo contendre, or if none of
the preceding conditions are met, two years after the date of the illegal
activities alleged.  The bill removes the provision that in a forfeiture
hearing a presumption can be rebutted by evidence that the owner or
interest holder knew or should have known that the property was contraband
and adds that evidence of an acquittal raises an unrebuttable presumption
that the property or interest that is the subject of the hearing is
nonforfeitable.  The bill prohibits a final judgment on a forfeiture action
from being entered until after the resolution of all criminal matters
associated with the forfeited property, or, for cases in which no criminal
charges are pursued, one year. 

The bill prohibits contraband from being directed though the federal
forfeiture procedures unless a judge has found more than incidental federal
involvement.  The bill requires the attorney general to notify the
comptroller of public accounts (comptroller) if the audit of a law
enforcement agency or attorney of the state who receives proceeds from
contraband is not received by the attorney general by the 30th day after
the date on which the annual period that is the subject of the audit ends
and provides that the comptroller will then audit the defaulting agency or
office.  The bill requires the costs to be deducted from the proceeds  and
property, not to exceed the value of the proceeds and property, at the
conclusion of the audit.  The bill requires any remaining proceeds and
property to enter into a fund to be administered by the governor's office
and prohibits the funds from being directed to the defaulting agency or
office. 

EFFECTIVE DATE

September 1, 2001.  If the provisions regarding audits of an agency or
office that receives profits from contraband property fall outside of the
agency's or office's annual period, these provisions take effect at the
beginning of the next annual period subsequent to September 1, 2001.