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Ordinance No. 5,3910 n 0 891024 -4 ORDINANCE NO. 5391 AN ORDINANCE AUTHORIZING AND DIRECTING THE CHIEF OF POLICE AN AGREEMENT • HARRIS THEREOF. DISTRICT ATTORNEY WITH RESPECT TO THE FORFEITURE OF CONTRABAND; AND PROVIDING FOR THE EFFECTIVE DATE Section BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, ordinance take effect w . a a from and after its passage by the City Council of the City of Baytown. Council INTRODUCED, READ City October, 1989. and PASSED City of Baytown, ` day of METT 0. HUTTO, Mayor 9 .ar2 2- -ZZ2��� EILEEN P. HALL, City Clerk NDALL B. STRONG, C` y Attorney 0:1:31:13 • AGREEMENT WITH RESPECT TO THE FORFEITURE OF CONTRABAND This writing is a local agreement and memorandum of understanding between the attorney representing the state, hereinafter referred to as the district attorney, and The Baytown Police Department, hereinafter referred to as Baytown PD , pursuant to the terms and provisions of House Bill 65, 71st Called Session of the Texas Legislature, as amending The Texas Code of Criminal Procedure by adding Chapter 59. I. Definitions In this agreement the following definitions shall apply: A. "Attorney representing the state" means the duly elected Harris County District Attorney or any of his duly authorized Assistant District Attorneys. B. "The Baytown Police Department" - Means the agency head of The Baytown Police Department. C. "Contraband", "interest holder". "owner", and "seizure" shall have the same meaning as defined in Article 59.01, Texas Code of Criminal Procedure. D. "Forfeitures pending" means any forfeiture matter that the district attorney has received notice of seizure in accordance with this agreement. 11. Seizure of Contraband A. Notification of Seizure - When contraband is seized pursuant to Chapter 59 of the Texas Code of Criminal Procedure by Baytown PD, the seizing officers shall immediately notify the district attorney of said seizure as follows: 1. The seizing officer shall notify the district attorney in writing immediately following the seizure of contraband, or as soon thereafter as may be reasonably practicable, but in any event not later than twenty-four hours following the seizure, either in person or by mail addressed to Harris County District Attorney, Special Crimes Bureau, 201 Fannin, Houston, Texas 77002, Attention: Contraband Forfeiture. i in addition to the investigative work - product of Baytown PD surrounding said seizure, the following: a. A statement under oath containing a schedule and inventory of the property seized pursuant to Chapter 59 of the Code of Criminal Procedure and this agreement. b. An acknowledgment by Baytown PD that the listed items were seized pursuant to chapter 59 and the reasons • therefor. C. A representation by Baytown PD whether or not the listed items are being held as evidence pursuant to a pending criminal investigation or criminal prosecution. d. A representation by Baytown PD that the lasted items are to be kept and maintained so as to protect the seized property pending final disposition of the suit for forfeiture at Baytown PD expense. e. The place and location where said property is presently stored and kept, and under whose custody and control said items are maintained. f. The name and address, if known, of the person found in possession of said property, or if no person was found in possession of said property the seizing officer shall so state. g. The name and address, if known, of the owner of the property seized, or if the name and address of the owner is unknown to the seizing officers and by the use of due diligence may not be reasonably ascertained, the seizing officer shall so state. h. The name and address, if known, of any person who claims a security interest in said property and the amount of such interest. i. The marital status of any person found in possession of said seized property, or who may be claiming any interest in said property as the owner or lien holder, and whether or not Baytown PD has any investigative report or records indicating that such person has been investigated for any act of family violence as defined by Section 71.01 Family Code. j. If any of the seized property is money, the seizing officer shall provide evidence of the deposit of said funds in the American Bank, 1600 Smith Street, Houston, Texas, 77002, in a certificate of deposit styled "John B. Holmes, Jr., and Don R. Stricklin, Custodian for The Baytown Police Department, Incident Report Nuifiber [number applicable to seizure]. 20 t k. If the seized property contains securities, negotiable instruments, or stocks, the said property shall be delivered to the office of the District Attorney, Special Crimes Bureau, 201 Fannin, Houston, Texas. B. Disposition of Seized Property Prior to Forfeiture All property, except money, securities, negotiable instruments, or stocks, seized by Baytown PD pursuant to this agreement and Chapter 59, Texas Code of Criminal Procedure, both tangible, real and mixed, shall be safely kept by Baytown PD, under seal, and in a manner that properly protects the seized property from damage or abuse pending final disposition of the forfeiture action, unless otherwise ordered by the court, or subject to replevy in accordance with Article 59.02 Texas Code of Criminal Procedure. Said safe keeping shall be at the sole cost and expense of Baytown PD. Money seized pursuant to this agreement and Chapter 59, Texas Code of Criminal Procedure, shall be deposited by Baytown PD, immediately following the seizure, in the American Bank, 1600 Smith Street, Houston, Texas, 77002, in a certificate of deposit styled "John B. Holmes, Jr., and Don R. Stricklin, Custodian for The Baytown Police Department, Incident Report Number (number applicable to seizure]. Evidence of such certificate of deposit shall be furnished the district attorney along with the notification of seizure provided in Section A. 2 above. III. Disposition of Forfeited Property A. Real and Personal Property - Upon a final adjudication determining that real or personal property, other than money securities, negotiable instruments, and stocks, shall be forfeited to the state, the district attorney shall dispose of such property as follows: 1. The district attorney shall transfer said property to Baytown PD for the official use by the agency, if: (a) Baytown PD is desirous of using and operating such property for official purposes; and (b) Baytown PD agrees to satisfy any and all storage and maintenance costs, if any; and (c) Such property is free of any interest of an interest holder, if any, or Baytown PD agrees to purchase the non - forfeitable interest of an interest holder; and 21 (d) Baytown PD has given written notice to the district attorney that they are desirous of using and operating such property for official purposes, will satisfy any and all storage and maintenance costs, if any, and will satisfy any non - forfeitable interest of an interest holder, if any, by purchasing the same. Said notice shall be given not later than sixty days (60) following notice of seizure in accordance with the notice provisions herein. (e) The district attorney is agreeable to waiving the thirty percent (30%) interest in such property by virtue of Chapter 59 of the Texas Code of Criminal Procedure and this agreement. Said notice shall be given within ten days (10) of the notification required by Baytown PD in (d) above. 2. The district attorney may transfer said property to any agency or political subdivision employing peace officers if: (a) Baytown PD is not desirous of using or operating such property; and has notified the district attorney of said fact, or more than sixty days has expired and the district attorney has not received the noticed required under 1.(d) above. (b) Baytown PD is agreeable to waiving the seventy percent (70 %) interest in such property be virtue of Chapter 59 of the Texas Code of Criminal Procedure and this agreement and has notified the district attorney of such waiver in accordance with the notice provisions herein, or more than sixty days (60) has expired from the notification of seizure without said notification, in which event Baytown PD has waived any interest in said property. 3. The district attorney shall cause the property to be sold immediately following the date of the final judgment of forfeiture, or as soon thereafter as reasonably practicable, at public auction in accordance with law as provided in such cases, if: (a) Baytown PD is not desirous of using and operating such property for official purposes; and (b) The district attorney is not agreeable to waiving the thirty percent (30 %) in such property, or more than seventy days (70) has expired from the notification of seizure without said notification of waiver of any interest, in which event the district attorney has waived any interest in said property disposition. (c) Baytown PD is not agreeable to waiving the seventy percent (10 %) interest in such property, or more than seventy days (70) has expired from the notification of seizure without 22 said notification of waiver of any interest, in which event Baytown PD has waived any interest in said property disposition. 4. The proceeds of any sale conducted hereunder shall be distributed as follows: a. To any interest holder to the extent of the interest holder's non- forfeitable interest; b. the balance, if any, after deducting all costs, including but not limited to, maintenance, storage and disposal costs, if any, incurred by Baytown PD or by the district attorney, both before and after the final judgment of forfeiture, shall be distributed as follows: (1). seventy percent (70 %) of the balance remaining after deducting all costs aforesaid shall be deposited by the district attorney in a special fund in the treasury of the political subdivision established for The Baytown Police Department and committed to law enforcement purposes as provided by Chapter 59 of the Texas Code of Criminal Procedure. (2). thirty percent (30%) of the balance remaining after deducting all costs aforesaid shall be deposited by the district attorney in a special fund in the county treasury for the benefit of the district attorney to be used solely by said representative of the state for the official purposes of the office as provided by Chapter 59 of the Texas Code of Criminal Procedure. (3) Provided however, if Baytown PD or the district attorney has waived interest in the proceeds of said sale, either affirmatively or by default, the balance shall be deposited in a special fund in the in the treasury of the political subdivision established for Baytown PD and committed to law enforcement purposes as provided by Chapter 59 of the Texas Code of Criminal Procedure, or in a special fund in the county treasury for the benefit of the district attorney to be used solely by said representative of the state for the official purposes of the office as provided by Chapter 59 of the Texas Code of Criminal Procedure, as the case may be. B. Money, Securities Negotiable Instruments and Stocks- Upon a final adjudication determining that property consisting of money, securities, negotiable instruments, and stocks, shall be forfeited to the state, the said property shall be converted to U.S. funds in accordance with law. The district attorney shall then dispose of said property as follows: a. To any interest holder to the extent of the interest Molder's nonforfeitable interest; and 23 b. the balance, if any, after deducting all costs, including but not limited to, maintenance, storage, brokerage fees and disposal costs, if any, incurred by Baytown PD or by the district attorney, both before and after the final judgment of forfeiture, shall be distributed as follows: (1). seventy percent (70 %) of the balance remaining after deducting all costs aforesaid shall be deposited by the district attorney in a special fund in the treasury of the is political subdivision established for Baytown PD and committed to law enforcement purposes as provided by Chapter 59 of the Texas Code of Criminal Procedure. (2). thirty percent (30 %) of the balance remaining after deducting all costs aforesaid shall be deposited by the district attorney in a special fund in the county treasury for the benefit of the district attorney to be used solely by said representative of the state for the official purposes of the office as provided by Chapter 59 of the Texas Code of Criminal Procedure. IV. Forfeiture of Controlled Substances 40 A. Authority to Make Application - The parties expressly acknowledge that the authority to make application to a district court for purposes of forfeiture of a controlled substance, raw Material, or drug paraphernalia under Chapter 59, Texas Code of Criminal Procedure and Section 481.159 of the Health and Safety Code may only be made by the attorney representing the state as herein defined. B. Agplication by The Baytown Police Department For Controlled Substance Forfeiture - Application by Baytown PD for the purposes of the forfeiture of controlled substances, raw material, or drug paraphernalia shall be made to the district attorney or his duly authorized representative. No application shall be entertained without the express written request of a Baytown PD representative of the grade of captain or greater, hereinafter called the applicant. said application shall contain, in addition to those specific items required by Chapter 59, Texas Code of Criminal Procedure and Section 481.159 of the Health and Safety Code, the following: 1. A statement by the applicant as to what purpose the controlled substance, raw material or drug paraphernalia will be used if forfeited; and 2. `An estimation of the length of time such controlled substance, raw material or drug paraphernalia will be required 24 • prior to destruction; and 3. A representation by said applicant that such controlled substance, raw material or drug paraphernalia may only be removed from the Baytown PD Laboratory, or other place of storage specifically named, upon written authorization of said applicant. Said written application shall be maintained by the Baytown PD laboratory, or other place of storage specifically named, as a permanent record and shall contain the following: a. The name of the person who is authorized to have possession of said controlled substance, raw material or drug paraphernalia; and b. The length of time for which said person is authorized to have possession of the controlled substance, raw material or drug paraphernalia. C. A description of the specific controlled substance, raw material or drug paraphernalia for which removal is being authorized, including but not limited to the qualitative and quantitative amounts of any controlled substance; and d. Specific direction by the applicant as to what steps shall be taken to insure the integrity of the controlled substance, raw material or drug paraphernalia while in the custody of the authorized person. e. Specific direction by the applicant that a qualitative and quantitative analyses shall be performed by the Baytown PD Laboratory personnel, or if no such laboratory exists to a named laboratory, immediately upon each return of the controlled substance, raw material or drug paraphernalia to the Baytown PD Laboratory, or other named place of storage. A written report of each analyses, as well as all authorizations for removal shall be maintained by the Baytown PD Laboratory, or .by the custodain of the other named place of storage, as a part of its official records. IV. Duration of Agreement This agreement shall be in force and effect from October 18, 1989, for a period of one year unless terminated earlier by either the district attorney or Baytown PD. Termination may occur by notification of either party, in writing, stating their intentions to terminate the agreement. such notice shall be communicated by personal delivery to the district attorney or to the agency head of Baytown PD and shall be effective thirty days following'notification. Any forfeitures pending at the effective date of termination shall be distributed in accordance with this 25 agreement. V. Notices • All notices shall be delivered as follows: A. Notice of Seizure - Notice of seizure shall be served in person by Baytown PD by hand delivery of the notice required in II. A. above to: The Assistant District Attorney in Charge of the Forfeiture Section of the Special Crimes Bureau, office of the District Attorney, Tenth Floor, 201 Fannin, Houston, 'Texas 77002. B. Notice of Waiver of Interest - Notice of waiver of any interest in any forfeited property shall be in writing, signed by agency head of Baytown PD, and by the district attorney in the case of the attorney for the state, and delivered in person or by certified mail to: 1. The Baytown Police Department 3200 N. Main Baytown, Texas 77520 2. District Attorney 201 Fannin Houston, Texas 77002 specifically detailing the forfeited property in which he is waiving interest hereunder. C. Other Notices - Any other notices, including but not limited to, termination, agency use of property, and willingness to discharge interest of non- forfeitable interest holder shall occur in accordance with V. B. above. VI. Modification of Agreement This writing represents the entire agreement of the parties with respect to the forfeiture of property and controlled substances under Chapter 59 of the Texas Code of Criminal Procedure; however either party may modify, repeal or amend said agreement provided all parties consent to such modification, repeal, or amendment in writing. Such modification or amendment may include, but are not limited to, specific multi- agency task force investigations or other circumstances where more than one agency employing peace 26 officers may be involved in a seizure. In such cases, a separate forfeiture agreement may be devised, with the consent of all parties, and such agreement shall supercede this agreement in the specific applicable forfeiture proceeding. VII. Establishment of Account is Baytown PD, understands and agrees that before any funds or disbursement whatsoever may occur in accordance with this agreement, that an account shall be established by the governing body of Baytown PD, in accordance with the provisions of Chapter 59 of the Texas Code of Criminal Procedure. Notification of the establishment of such account is a condition precedent to any disbursement herein. Notification of the establishment of an account in accordance with this section shall be given in the manner provided by section V.C. of this agreement, and shall contain a copy of the order, record, or action establishing said account by the political subdiv' n. Executed this day, of 1989. istrict Attorney i 27