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I have a criminal defendant in Texas that has been charged…

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I have a criminal defendant...
I have a criminal defendant in Texas that has been charged for "keeping a gambling place" and set for trial. In the process the defendant had $54,000 seized by police. I have been looking under section 18.18 of the Code of Criminal procedure to determine what steps the prosecution must complete in order to keep the proceeds and what steps must be taken in order to have the money returned. What is the step by step process to get the proceeds returned or alternatively for the state to avoid the return of said money?
Submitted: 1 month ago.Category: Criminal Law
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Customer reply replied 1 month ago
The money found was in the machines, gambling place's counter, accused's person (he was on site), and in his vehicle, also on site. Officers have placed the money in an interest bearing account as required. I want to know if due process is being followed. Should my defendant be allowed a hearing in reference to the money taken or is it only retrievable after prosecution (which is ongoing) or conviction? Do I have a way to use the money being held as leverage?
Customer reply replied 1 month ago
Articles 18.09, 18.10, 18.11, 18.12, 18.13 refer to taking and custody of the property in question and the necessity of the magistrate determine if the warrant and items seized are legitimate. In this time is there any due process available to render the return of these taken funds?
Answered in 1 day by:
1/14/2018
Criminal Lawyer: N Cal Attorney, Lawyer replied 1 month ago
N Cal Attorney
Category: Criminal Law
Satisfied Customers: 9,576
Experience: Since 1983
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I am sorry to hear this.

Did the State file a "Notice of Seizure and Intended Forfeiture" within 30 days of the seizure?

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Customer reply replied 1 month ago
They did not.
Customer reply replied 1 month ago
Any answers?
Criminal Lawyer: N Cal Attorney, Lawyer replied 1 month ago

Texas Code of Criminal Procedure:

Art. 59.04. NOTIFICATION OF FORFEITURE PROCEEDING. (a) If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30th day after the date of the seizure.///

This means they cannot file a forfeiture action against the seized property. And you can file a motion for return of property.

One attorney says:

"A peace officer who seizes property is required to provide the attorney representing the state with a sworn statement containing an inventory of the property seized within 72 hours of the seizure. Also, subsections (a) and (b) of Article 59.04 requires that a notice of seizure and intended forfeiture (the lawsuit) be filed within 30 days or the court loses jurisdiction to hear the case."

Yes this can be used as leverage, I have seen criminal cases resolved where the charges are dropped and the defendant agrees to forfeit a bunch of money to the State.

Please let me know if you need more information.

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