Forfeiture Of Contraband - Texas Gang Investigators Association

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Forfeiture Of Contraband

C.C.P.

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.

 
 
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