HBA-JLV C.S.H.B. 1522 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1522
By: Averitt
Financial Institutions
3/23/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Civil asset forfeiture provides a means for law enforcement to seize a
criminal's assets from financial institutions as contraband, despite a
lienholder's bona fide security interest in the property.  Under current
law, the lienholder must show that it acquired and perfected the security
interest prior to or during the commission of the offense, and at the time
the interest was acquired and perfected, that it did not know or have
reason to know of the offense or that it was likely to occur.  There are
concerns that this allows a prosecutor, depending upon the circumstance of
timing, to shift a loss that results from an individual's criminal activity
to a lienholder.  Additionally, there are concerns that the immediate and
unexpected withdrawal of accounts or assets from a bank, depending upon the
amount of the seizure in relation to the bank's assets, can jeopardize its
liquidity. C.S.H.B. 1522  establishes procedures for the seizure of assets
from a regulated financial institution. 

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

C.S.H.B. 1522 amends the Code of Criminal Procedure to set forth provisions
regulating the seizure of accounts and assets at regulated financial
institutions (institution).  The bill authorizes  an institution to pay an
account or tender assets held as security for an obligation owed to the
institution or transfer the depository account or assets to a segregated
interest-bearing account in the name of the attorney representing the state
as trustee at the time a seizure warrant is served.  The bill also requires
the institution to take action to segregate the account or assets
immediately upon service of the seizure warrant and to provide evidence of
the terms and the amount of the account or a detailed inventory of the
assets, certified by an officer of the institution, to the peace officer
serving the warrant.  If the institution fails to comply with the
obligations to release the depository account or assets to a peace officer
pursuant to a seizure warrant or transfer the account or assets, the bill
requires the court to order the 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.  The
court may also find the institution and those persons in contempt.  The
bill releases an institution that complies with the provisions of the bill
from liability in damages because of the compliance.  The bill provides
that 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 is not impaired (Art. 59.12). 

The bill provides for the disclosure of information relating to accounts
and assets at an institution by the attorney representing the state to a
financial institution regulator, but requires a primary state or federal
financial institution regulator (regulator) to keep information provided by
the attorney confidential.  The bill provides that a regulator commits an
offense if the regulator knowingly discloses information in violation of
this article.  The bill provides that an offense under these provisions is
punishable by confinement in jail for a period not to exceed 30 days, a
fine not to exceed $500, or both the confinement and fine  (Art. 59.13). 

The bill requires the attorney representing the state to notify the banking
commissioner who is required to  notify the appropriate regulators before
taking any action that implicates a potentially culpable officer or
director of an institution (Art. 59.14). 

The bill provides that if property is seized from the possession of the
interest holder who asserts an ownership interest, security interest, or
lien interest  in the property, the owner or the interest holder's rights
remain in effect during the pendency of proceedings as if possession of the
property had remained with the interest holder (Art. 59.02).  

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1522 modifies the original to provide an institution the option,
at the time a seizure warrant is served, of transferring the depository
account or assets to a segregated interest-bearing account in the name of
the attorney representing the state as trustee.  The substitute requires
the institution to segregate, rather than freeze, the account or assets
immediately upon service of a seizure warrant and to provide evidence,
certified by an officer of the institution, of the terms and the amount of
the account or a detailed inventory of the assets to be given to the peace
officer serving the warrant.  The substitute requires, rather than
authorizes, the court to order the institution and its culpable officers,
agents, or employees to pay damages incurred as a result of the
institution's failure to comply.  The substitute provides that the right of
the state to seize a depository account or other assets for purposes other
than forfeiture is not impaired (Art. 59.12). 

The substitute also adds penalties for knowingly disclosing certain
information (Arts. 59.13 and 59.14). 

The substitute removes provisions requiring the institution to preserve and
maintain the account or assets pending entry of a final judgment of
forfeiture.  The substitute removes provisions providing that assets
subject to diminution in value may be liquidated without court action by
agreement between the institution and the attorney representing the state.
The substitute also removes provisions providing that an institution is not
required to pay an account of tender assets held as security for an
obligation owed to the institution until the time has expired for an appeal
from a decision of the court relating to the forfeiture of accounts or
assets (Art. 59.12). 

The substitute modifies the original to include ownership interest,
security interest, or lien interest among property which when seized from
the possession of the owner or interest holder who asserts an interest in
the property retains the rights of the owner or interest holder (Art.
59.02).  

The substitute modifies the original to remove certain provisions of the
Penal Code providing that it is an exception to the application of
provisions governing money laundering that the transaction was an assertion
by an owner or interest holder of interest in seized property or opposition
by an owner or interest holder to the nature of property as proceeds of a
criminal activity or contraband (Sec. 34.02).