Texas Code of Criminal Procedure - Article 18.18. Disposition Of Gambling Paraphernalia, Prohibited Weapon, Criminal Instrument, And Other Contraband
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Texas Lawyer > Code of Criminal Procedure > Texas Code of Criminal Procedure - Article 18.18. Disposition Of Gambling Paraphernalia, Prohibited Weapon, Criminal Instrument, And Other Contraband
Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA,
PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRABAND. (a)
Following the final conviction of a person for possession of a
gambling device or equipment, altered gambling equipment, or
gambling paraphernalia, for an offense involving a criminal
instrument, for an offense involving an obscene device or material,
for an offense involving child pornography, or for an offense
involving a scanning device or re-encoder, the court entering the
judgment of conviction shall order that the machine, device,
gambling equipment or gambling paraphernalia, instrument, obscene
device or material, child pornography, or scanning device or
re-encoder be destroyed or forfeited to the state. Not later than
the 30th day after the final conviction of a person for an offense
involving a prohibited weapon, the court entering the judgment of
conviction on its own motion, on the motion of the prosecuting
attorney in the case, or on the motion of the law enforcement agency
initiating the complaint on notice to the prosecuting attorney in
the case if the prosecutor fails to move for the order shall order
that the prohibited weapon be destroyed or forfeited to the law
enforcement agency that initiated the complaint. If the court
fails to enter the order within the time required by this
subsection, any magistrate in the county in which the offense
occurred may enter the order. Following the final conviction of a
person for an offense involving dog fighting, the court entering
the judgment of conviction shall order that any dog-fighting
equipment be destroyed or forfeited to the state. Destruction of
dogs, if necessary, must be carried out by a veterinarian licensed
in this state or, if one is not available, by trained personnel of a
humane society or an animal shelter. If forfeited, the court shall
order the contraband delivered to the state, any political
subdivision of the state, or to any state institution or agency. If
gambling proceeds were seized, the court shall order them forfeited
to the state and shall transmit them to the grand jury of the county
in which they were seized for use in investigating alleged
violations of the Penal Code, or to the state, any political
subdivision of the state, or to any state institution or agency.
(b) If there is no prosecution or conviction following
seizure, the magistrate to whom the return was made shall notify in
writing the person found in possession of the alleged gambling
device or equipment, altered gambling equipment or gambling
paraphernalia, gambling proceeds, prohibited weapon, obscene
device or material, child pornography, scanning device or
re-encoder, criminal instrument, or dog-fighting equipment to show
cause why the property seized should not be destroyed or the
proceeds forfeited. The magistrate, on the motion of the law
enforcement agency seizing a prohibited weapon, shall order the
weapon destroyed or forfeited to the law enforcement agency seizing
the weapon, unless a person shows cause as to why the prohibited
weapon should not be destroyed or forfeited. A law enforcement
agency shall make a motion under this section in a timely manner
after the time at which the agency is informed in writing by the
attorney representing the state that no prosecution will arise from
the seizure.
(c) The magistrate shall include in the notice a detailed
description of the property seized and the total amount of alleged
gambling proceeds; the name of the person found in possession; the
address where the property or proceeds were seized; and the date
and time of the seizure.
(d) The magistrate shall send the notice by registered or
certified mail, return receipt requested, to the person found in
possession at the address where the property or proceeds were
seized. If no one was found in possession, or the possessor's
address is unknown, the magistrate shall post the notice on the
courthouse door.
(e) Any person interested in the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
child pornography, scanning device or re-encoder, criminal
instrument, or dog-fighting equipment seized must appear before the
magistrate on the 20th day following the date the notice was mailed
or posted. Failure to timely appear forfeits any interest the
person may have in the property or proceeds seized, and no person
after failing to timely appear may contest destruction or
forfeiture.
(f) If a person timely appears to show cause why the
property or proceeds should not be destroyed or forfeited, the
magistrate shall conduct a hearing on the issue and determine the
nature of property or proceeds and the person's interest therein.
Unless the person proves by a preponderance of the evidence that the
property or proceeds is not gambling equipment, altered gambling
equipment, gambling paraphernalia, gambling device, gambling
proceeds, prohibited weapon, obscene device or material, child
pornography, criminal instrument, scanning device or re-encoder,
or dog-fighting equipment and that he is entitled to possession,
the magistrate shall dispose of the property or proceeds in
accordance with Paragraph (a) of this article.
(g) For purposes of this article:
(1) "criminal instrument" has the meaning defined in the
Penal Code;
(2) "gambling device or equipment, altered gambling
equipment or gambling paraphernalia" has the meaning defined in the
Penal Code;
(3) "prohibited weapon" has the meaning defined in the Penal
Code;
(4) "dog-fighting equipment" means:
(A) equipment used for training or handling a fighting dog,
including a harness, treadmill, cage, decoy, pen, house for keeping
a fighting dog, feeding apparatus, or training pen;
(B) equipment used for transporting a fighting dog,
including any automobile, or other vehicle, and its appurtenances
which are intended to be used as a vehicle for transporting a
fighting dog;
(C) equipment used to promote or advertise an exhibition of
dog fighting, including a printing press or similar equipment,
paper, ink, or photography equipment; or
(D) a dog trained, being trained, or intended to be used to
fight with another dog;
(5) "obscene device" and "obscene" have the meanings
assigned by Section 43.21, Penal Code;
(6) "re-encoder" has the meaning assigned by Section 35.58,
Business & Commerce Code;
(7) "scanning device" has the meaning assigned by Section
35.58, Business & Commerce Code; and
(8) "obscene material" and "child pornography" include
digital images and the media and equipment on which those images are
stored.
(h) No provider of an electronic communication service or of
a remote computing service to the public shall be held liable for an
offense involving obscene material or child pornography under this
section on account of any action taken in good faith in providing
that service.
Amended by Acts 1973, 63rd Leg., p. 986, ch. 399, Sec. 2(E), eff.
Jan. 1, 1974; Acts 1983, 68th Leg., pp. 1611, ch. 305, Sec. 2, 3,
eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 1899, ch. 351, Sec. 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(6),
eff. Sept. 1,1987; Acts 1987, 70th Leg., ch. 980, Sec. 1, eff.
Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 157, Sec. 2, eff. Sept. 1,
1993; Acts 2003, 78th Leg., ch. 441, Sec. 1, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 649, Sec. 2, eff. Sept. 1, 2003.
Subsecs. (a) and (b), and (e) through (g) amended by Acts 2005, 79th
Leg., ch. 522, Sec. 1, eff. Sept. 1, 2005; Subsec. (h) added by
2005, 79th Leg., ch. 522, Sec. 2, eff. Sept. 1, 2005.
Article: 18.11 18.12 18.13 18.14 18.15 18.16 18.17 18.18 18.181 18.183 18.19 18.20 18.21 18.22 18.23
Last modified: August 11, 2007
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