Property Hearings STEPHANIE GREGER CRIMINAL DIVISION CHIEF WILLIAMSON COUNTY ATTORNEY S OFFICE

Transcription

1 Property Hearings STEPHANIE GREGER CRIMINAL DIVISION CHIEF WILLIAMSON COUNTY ATTORNEY S OFFICE

2 Chapter 47 of the Code of Criminal Procedure - DISPOSITION OF STOLEN PROPERTY Tex Code Crim. Proc. art

3 When do we have a Hearing? Art Subject to Order of Court (a) Except as provided by Subsection (b), an officer who comes into custody of property alleged to have been stolen shall hold it subject to the order of the proper court only if the ownership of the property is contested or disputed. Tex Code Crim. Proc. art

4 When do we have a Hearing? Art Subject to Order of Court (cont.) (b) An officer who comes into custody of property governed by Chapter 371, Finance Code, that is alleged to have been stolen shall hold the property subject to the order of the proper court regardless of whether the ownership of the property is contested or disputed. Tex Code Crim. Proc. art

5 What does the Officer Do? Art Schedule When an officer seizes property alleged to have been stolen, he shall immediately file a schedule of the same, and its value, with the court having jurisdiction of the case, certifying that the property has been seized by him, and the reason therefor. The officer shall notify the court of the names and addresses of each party known to the officer who has a claim to possession of the seized property. Tex Code Crim. Proc. art

6 What are the Options? Order Possession to the Owner upon Trial of the Theft or Similar Offense Dispose of Property through an Examining Trial Dispose of the Property through a Property Hearing

7 When the Case is Tried Property Disposition when there is a Trial (a) On the trial of any criminal action for theft or any other offense involving the illegal acquisition of property, the court trying the case shall order the property to be restored to the person appearing by the proof to be the owner of the property. Tex Code Crim. Proc. art

8 When the Case is Tried (cont.) (b) On written consent of the prosecuting attorney, any magistrate having jurisdiction in the county in which a criminal action for theft or any other offense involving the illegal acquisition of property is pending may hold a hearing to determine the right to possession of the property. If it is proved to the satisfaction of the magistrate that any person is a true owner of the property alleged to have been stolen, and the property is under the control of a peace officer, the magistrate may, by written order, direct the property to be restored to that person. Tex Code Crim. Proc. art

9 Examining Trial Upon an examining trial, if it is proven to the satisfaction of the court that any person is the true owner of property alleged to have been stolen, and which is in possession of a peace officer, the court may upon motion by the state, by written order direct the property to be restored to such owner Tex. Code Crim. Proc. art

10 Examining Trial (cont.) the court may upon motion by the state, by written order direct the property to be restored to such owner subject to the conditions that such property shall be made available to the state or by order of any court having jurisdiction over the offense to be used for evidentiary purposes. Tex. Code Crim. Proc. art

11 Examining Trial (cont.) What is an Examining Trial? A defendant in a felony case may request an Examining Trial before the indictment of the case. Essentially it is a probably cause hearing. They are very rare and almost pointless Long story short, you will never have to deal with this Tex. Code Crim. Proc. art

12 Property Hearings Disposition of Stolen Property If a criminal action relating to allegedly stolen property is not pending, then just about any judge (that s JPs so long as they have magistrate powers) can have a hearing upon petition of an interested person, county, city or state. The court shall: *Justice Court will only have jurisdiction for a hearing before the filing of an information or indictment, or after a dismissal of the same -Perry v. Breland, 16 S.W.3d 182 (Tex. App. Eastland 2000) Tex. Code Crim. Proc. art a

13 Property Hearings Disposition of Stolen Property (cont.) (1) order the property delivered to whoever has the superior right to possession, without conditions; or (2) on the filing of a written motion before trial by an attorney representing the state, order the property delivered to whoever has the superior right to possession, subject to the condition that the property be made available to the prosecuting authority should it be needed in future prosecutions; or Tex. Code Crim. Proc. art a

14 Property Hearings Disposition of Stolen Property (cont.) (3) order the property awarded to the custody of the peace officer, pending resolution of criminal investigations regarding the property. Tex. Code Crim. Proc. art a

15 Property Hearings Disposition of Stolen Property (cont.) If it is shown in a hearing that probable cause exists to believe that the property was acquired by theft or by another manner that makes its acquisition an offense and that the identity of the actual owner of the property cannot be determined, the court shall order the peace officer to: Tex. Code Crim. Proc. art a

16 Property Hearings Disposition of Stolen Property (cont.) (1) deliver the property to a government agency for official purposes; (2) deliver the property to a person authorized by Article of this code to receive and dispose of the property; or (3) destroy the property. Tex. Code Crim. Proc. art a

17 Property Hearings At the hearing, any interested person may present evidence showing that the property was not acquired by theft or another offense or that the person is entitled to possess the property At the hearing, hearsay evidence is admissible Tex. Code Crim. Proc. art a

18 Property Hearings Venue for a hearing under this article is in any justice, county, statutory county, or district court in the county in which the property is seized or in any municipal court in any municipality in which the property is seized, except that the court may transfer venue to a court in another county on the motion of any interested party. Tex. Code Crim. Proc. art a

19 Upon Petition for a Hearing Article 47 is silent as to specific procedure Do you serve anyone with notice? Do you delay a certain number of days?

20 Due Process An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Grannis v. Ordean, 234 U.S. 385 (U.S. 1914)

21 Due Process- Seized Property when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return BUT Individualized notice that the officers have taken the property is necessary in a case such as the one before us because the property owner would have no other reasonable means of ascertaining who was responsible for his loss -City of W. Covina v. Perkins, 525 U.S. 234 (U.S. 1999)

22 Due Process- Stolen Property If there is (1) probable cause to believe the property is the fruit of a theft or theft type offense and (2) the actual owner can t be determined, then you can treat the property as abandoned, award it to a government agency, or have it destroyed.

23 Probable Cause Probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. -Small v. State, 977 S.W.2d 771, 774 (Tex. App.--Fort Worth 1998, no pet.)

24 Probable Cause It is a flexible, common sense standard requiring only a probability of suspect activity rather than an actual showing of such activity. Under the "totality of the circumstances" approach, law enforcement officers are permitted to draw logical inferences and make intelligent deductions from the totality of the circumstances. -Small v. State, 977 S.W.2d 771, 774 (Tex. App.--Fort Worth 1998, no pet.)

25 Due Process- Stolen Property If there are known contesting parties, I would serve them pursuant to 21a of the Civil Rules of Procedure to ensure they may present their claims. or Avail yourself of Art

26 So it s yours, eh? Art Bond Required If the court has any doubt as to the ownership of the property, the court may require a bond of the claimant for its re-delivery in case it should thereafter be shown not to belong to such claimant; or the court may, in its discretion, direct the property to be retained by the sheriff until further orders as to its possession.

27 So it s yours, eh? Art Bond Required (cont.) Such bond shall be in a sum equal to the value of the property, with sufficient security, payable to and approved by the county judge of the county in which the property is in custody. Such bond shall be filed in the office of the county clerk of such county, and in case of a breach thereof may be sued upon in such county by any claimant of the property; or by the county treasurer of such county.

28 What if? There isn t probable cause to believe the property is the product of theft and you can t determine who the actual owner is? Sounds like abandoned property to me. At the very least it isn t stolen property, so punt!

29 Appeal (b) Appeals from a hearing in a municipal court or justice court under Article 47.01a of this code shall be heard by a county court or statutory county court. The appeal is governed by the applicable rules of procedure for appeals for civil cases in justice courts to a county court or statutory county court. Tex. Code Crim. Proc. art

30 Appeal (c) Only an interested person who appears at a hearing under this article may appeal, and such person must give an oral notice of appeal at the conclusion of the hearing and must post an appeal bond by the end of the next business day, exclusive of Saturdays, Sundays, and legal holidays. *Notice those requirements for appeal! Make note of any oral pronouncement -Allstate Ins. Co. v. Troy's Foreign Auto Parts, 2001 Tex. App. LEXIS 5029 (Tex. App. Dallas July ). Tex. Code Crim. Proc. art

31 Appeal (d) The court may require an appeal bond, in an amount determined appropriate by the court, but not to exceed twice the value of the property. The bond shall be made payable to the party who was awarded possession at the hearing, with sufficient sureties approved by the court, and conditioned that appellant will prosecute his appeal to conclusion. Tex. Code Crim. Proc. art

32 Miscellaneous Art Written Instrument If the property is a written instrument, it shall be deposited with the county clerk of the county where the proceedings are had, subject to the claim of any person who may establish his right thereto. The claimant of any such written instrument shall file his written sworn claim thereto with the county judge. If such judge be satisfied that such claimant is the real owner of the written instrument, the same shall be delivered to him. The county judge may, in his discretion, require a bond of such claimant, as in other cases of property claimed under any provision of this Chapter, and may also before such delivery require the written instrument to be recorded in the minutes of his court.

33 Miscellaneous If the property is awarded to a petitioner under Article 47, then they are responsible for costs of safekeeping the property Officer proves up with an affidavit Judge approves or disapproves If claimant can t pay, then the property is sold and proceeds go to claimant minus the charges for safekeeping Tex. Code Crim. Proc. art

34 Evidence Destruction

35 Evidence Destruction The following is a general guideline on how to properly dispose many types of seized property It is not an exhaustive list If ever in doubt, please consult your local agencies to insure compliance with the law.

36 Abandoned or Unclaimed Property Article Code of Criminal Procedure Includes anything found that is not related to a criminal charge, stolen property, or whiskey wine or beer. Does not include Contraband as defined by Article 59 of the Code of Criminal Procedure. Handled by the Sheriff, Purchasing Agent or Person appointed by Municipality

37 Seized Weapons Article Code of Criminal Procedure Applies only to weapons seized pursuant to Chapter 46 Penal Code Offenses other than: stolen weapons (Article 47) or prohibited weapons (switchblades, knuckles, etc.)

38 Seized Weapons Article Code of Criminal Procedure If seized without a warrant, the officer give an inventory to a magistrate If no prosecution: Magistrate notifies person who had the weapon that they are entitled to it upon written request If no request in 61 days, then destroy or forfeit

39 Seized Weapons Article Code of Criminal Procedure If no order for return, destruction or forfeiture in 121 days, the agency in possession can request from magistrate If there is a conviction or deferred, the possessor gets the weapon back unless: No request in 61 days Prior conviction under Chapter 46 Defined as a prohibited weapon

40 Seized Weapons Article Code of Criminal Procedure Drug free zone, or Judge looks at history and says, you are too dangerous to have the weapon If no order to destroy or forfeit by the trial judge in 61 days, the agency in possession may get the order from a magistrate

41 Contraband + Article Code of Criminal Procedure Gambling Paraphernalia, Prohibited Weapon, Criminal Instrument, or Other Contraband If there is a final conviction, then the court orders it destroyed or forfeited either immediately or within 30 days If the court fails to comply with the timeline, any magistrate in the county may provide the order

42 Contraband + Article Code of Criminal Procedure If no prosecution Magistrate who got the return shall notify the person it was taken from that they can maybe get it back upon a showing of good cause Notice is sent by certified mail to the address the contraband was taken from with all the particulars of the seizure

43 Contraband + Article Code of Criminal Procedure Notice is posted on the courthouse door if it wasn t taken from a person 20 days to appear in front of the magistrate or no dice Otherwise, magistrate has a hearing where the person must prove that the property isn t contraband and that they are entitled to it both by a preponderance of the evidence

44 Controlled Substances Tex. Health & Safety Code Controlled substance property means a controlled substance, mixture containing a controlled substance, controlled substance analogue, counterfeit controlled substance, drug paraphernalia, chemical precursor, chemical laboratory apparatus, or raw material. Controlled substance plant means a species of plant from which a controlled substance listed in Schedule I or II may be derived.

45 Controlled Substances Tex. Health & Safety Code (h) A county, justice, or municipal court may order forfeiture of a controlled substance property or plant, unless the lawful possession of and title to the property or plant can be ascertained.

46 Controlled Substances Tex. Health & Safety Code If the court determines that a person had lawful possession of and title to the controlled substance property or plant before it was seized, the court shall order the controlled substance property or plant returned to the person, if the person so desires. The court may only order the destruction of a controlled substance property or plant that is not otherwise disposed of in the manner prescribed by Section

47 Controlled Substances Tex. Health & Safety Code (b)the rules for the destruction of controlled substance property or plants must require: (1) more than one person to witness the destruction of the property or plants; (2) the preparation of an inventory of the property or plants destroyed; and

48 Controlled Substances Tex. Health & Safety Code (3) the preparation of a statement that contains the names of the persons who witness the destruction and the details of the destruction. (c) A document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.

49 Controlled Substances PLEASE REMEMBER: This is only a quick reference for some common types of disposal Your jurisdiction likely has procedures in place for destruction I provided a sample order from my county for comparison. You will notice a spot for the requesting evidence technician to indicate that no prosecution is pending.

50 Remember! Always check the code! Communicate with your local law enforcement agencies and with your County and District Attorney s Offices Opinions may differ

51 Contact Stephanie Greger Criminal Division Chief Williamson County Attorney s Office sgreger@wilco.org