Bill > HSB634

Introduced Session

This bill relates to criminal asset forfeiture. Asset forfeiture is a process by which contraband and proceeds or instrumentalities related to criminal activity may be seized by the state and sold. Under current law, asset forfeiture is governed by Code chapter 809A. The bill repeals Code chapter 809A and replaces it with new Code chapter 809B. Currently under Code chapter 809A, a conviction for a criminal offense is not required for an asset to be subject to forfeiture for property valued at $5,000 and less, and forfeiture need not be expressly authorized as a penalty in the criminal statute. Under current law, forfeiture is provided as a remedy for certain driving while intoxicated offenses and for violations of Code chapters 706B (money laundering), 715A (forgery and related fraudulent criminal acts), and 716A (electronic mail). The bill prohibits civil forfeiture and provides that criminal forfeiture is only available to the seizure and forfeiture of property used in and derived from the violation of Code chapter 124, subchapter IV (controlled substances —— offenses and penalties). Under the bill, forfeiture is disfavored. The bill’s stated purposes are to deter criminal activity by reducing criminal activity economic incentives, confiscate property used in the violation of the law, and protect due process rights of property owners. The bill provides that the court that has jurisdiction in the related criminal matter shall have jurisdiction over the forfeiture proceeding and the forfeiture shall be part of the trial of the related crime. The bill states that at the request of the state, a court may issue an ex parte order for the property for which forfeiture is sought and to provide for the custody of the personal H.F. _____ property. The bill provides for the seizure of personal property without process if the property was seized during a lawful arrest. The bill further provides that the seizure of real property requires process and proper notice. The bill provides that people do not have property rights in stolen property or contraband. Stolen property may be returned to the rightful owner and contraband shall be disposed of. The agency that seized the property is responsible for providing adequate storage, security, and maintenance for all assets in the agency’s custody. The bill requires that the law enforcement officer that seizes the property shall provide an itemized numbered receipt of all assets being taken. The bill exempts United States currency totaling $200 or less and a motor vehicle valued at $2,000 or less from seizure and forfeiture. The bill provides that a person may execute a waiver to relinquish the person’s rights, interests, and title in the seized property and that waiver is subject to a claim by a secured interest holder, innocent owner, or other person entitled to notice. The bill further provides that a law enforcement officer, other than the prosecuting authority, may not request, induce, or require a person to waive the person’s rights in seized property. The bill requires a law enforcement agency making a seizure to submit a report to the appropriate prosecuting agency within 10 days of the seizure. The report shall include the following information: (1) name of the seizing law enforcement agency, (2)description of the seized property, (3) location where the seizure occurred, (4) date and circumstances of seizure, (5) where the property is being stored and its custodian, (6) name and contact information of owner, possible innocent owner claimant, and any lienholder, (7) the type and quantity of the controlled substance involved, (8) if the property is a H.F. _____ conveyance, the report shall include the make, model, serial number, and year of the conveyance and the name and contact information of the person in whose name the conveyance is registered, and (9) any other relevant information. The bill provides that the title to the seized property vests with the state when the court issues a forfeiture judgment and relates back to the date when the state took control of the property. The bill provides for appointed counsel for a defendant in a forfeiture proceeding if the person has a public defender, or court-appointed counsel, to the person in the connected criminal matter. In a pro se proceeding, the court may exercise discretion applying the rules of pleading, practice, evidence, and procedure. The bill requires the prosecuting authority to perform a reasonable search to identify any person, other than the defendant, known to have an interest in the property subject to forfeiture and give notice to the interested person. The bill allows notice to be through publication if personal service is not available. The bill provides language that shall be included in the notice to other known owners. If the prosecuting authority does not serve notice on any persons appearing to have an interest in the property and the extension period has expired, the prosecuting authority or court shall order the return of the property to a person with a valid interest in the property who makes a request. The bill provides that following seizure, a defendant or any other person with an interest in the property has a right to a prompt post-seizure hearing and may file a motion to request a hearing. The bill further provides that seized property shall be returned if the court by a preponderance of the evidence determines that: (1) the seizure was invalid, (2) a criminal charge has not been filed and no filing extension is available, (3) the final judgment will be in favor of the defendant or any other person with an interest in the property, or (4) the court H.F. _____ has ordered the return of sufficient funds to the defendant, not needed as evidence, for the defendant to obtain counsel of choice but less than the total amount seized. The bill allows the court to impose reasonable conditions on the return of the property. The bill requires the prosecuting authority to provide a notice of proposed forfeiture with the court and the person whose property will be seized. The notice shall include (1) a description of the property seized, (2) the time, date, and place of the seizure, (3) the seizure receipt number, and (4) a description of how the property was used in or derived from the alleged crime. The bill provides that forfeiture proceedings are subject to the rules of criminal procedure. The bill allows property to be forfeited if the defendant has been convicted of a violation of Code section 124.401 and the state has established by a preponderance of the evidence that the property is an instrumentality of or proceeds derived directly from the violation. Upon conviction, the court has the discretion to hold the forfeiture proceeding as soon as practicable. A forfeiture proceeding shall be held without a jury. The bill also provides that property may be forfeited by consent order approved by the court provided that secured interest holders, innocent owners, or others entitled to notice to consent to the forfeiture. The bill provides that the court may waive the requirement that a defendant be convicted of a violation of Code section 124.401 and grant title of the property to the state if the prosecuting authority files a motion no fewer than 90 days after seizure and proves that the defendant abandoned the property, fled the jurisdiction, was deported, or died. The bill provides for a proportionality hearing, where the defendant may petition the court that the forfeiture was unconstitutionally excessive. The bill provides remedies for secured interest holders and H.F. _____ innocent owners whose property has been seized by the state. The bill allows the secured interest holder and an innocent owner whose seized property is not returned to petition the court for a hearing for the property to be returned. The bill provides that a defendant is not jointly and severally liable for forfeiture awards owed by other defendants. The bill provides that in a forfeiture proceeding in which a claimant substantially prevails, the state shall be liable for attorney fees and other litigation costs incurred. The bill provides the procedure to return the property and any damages sustained to the property during its seizure.

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Other Sponsors (1)

Committee report approving bill, renumbered as HF 2560. (on 02/15/2024)

Official Document