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Has anyone done a property hearing when there were charges filed and pending? It won't be under 47.01a because that applies when no charges are pending. So I assume that Art. 47.02(b) applies when there ARE charges pending? Does anyone have a petition for this? thanks.
 
Posts: 54 | Location: Anson, Texas, USA | Registered: November 13, 2001Reply With QuoteReport This Post
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Chapter 47 generally does not require petitions. CCP 47.03 requires the officer who seizes the stolen property (or property otherwise acquired illegally, see CCP 47.11) to "immediately file a schedule" identifying the property, indicating its value, and identifying the "names and addresses of each party known to the officer who has a claim to possession of the seized property." This schedule effectively serves as a petition to initiate the property disposition case, whether or not there is a criminal case. When officers consult with me before filing, I send them a form that is titled "Officer's Schedule of Seized Property Pursuant to Chapter 47 & Motion for Court Order of Disposition," and includes a request for a disposition hearing in the Schedule.

To close the case, we send a Notice of Hearing for the date "the court will conduct a hearing for disposition of the seized property pursuant to Chapter 47." Every person who has any cognizable claim to the property gets notice pursuant to the Texas Rules of Civil Procedure. See Four B's Inc., v. State, 902 SW2d 683, 684 (Tex. App. Austin 1995, writ denied) ("proceeding to restore property is a civil case"). Make sure every possible claimant gets notice pursuant to TRCPs 21 and 21a (CMRRR, email, fax with proof, delivery); and that you give 45 days notice pursuant to TRCP 245 (48 if you serve by mail,TRCP 21a(c)). When dealing with an insurance company (for example, when Auto Crimes recovers a stolen vehicle and the insurance company paid the policy claim to the victim), make sure to identify the correct "attorney for service" on the Texas Dept. of Insurance website,and notify that agent. In insurance cases, the officer usually has identified an insurance loss recovery employee who can give you the correct name of the insurance company, which allows you to look up the correct attorney for service. I notice the insurance loss recovery employee in addition to the legally correct attorney for service, since that person is usually who shows up for the hearing. For non-insurance entities, The Texas Secretary of State "SOS Direct" website allows you to look up the registered agent for SOP, though you need to set up a government account to search free. Make sure to include a Certificate of Service to document whom you served, how, and when. TRCP 21a(e).

The court might require you to file, or you might prefer to file, a separate "Motion for Hearing to Dispose of Property Pursuant to Chapter 47," to get a hearing, but if so, that motion need only request that the court dispose of the property identified in the Schedule of Seized Property pursuant to Chapter 47. Every party that has a claim to the property has to be served with every filing regarding the property, and there has to be a Certificate of Service on each filing.

Despite the technical requirements of ensuring that you send notice to every claimant pursuant to the TRCPs, and that you look up the legally correct claimant in cases involving insurance companies or other entities, the paperwork on most Chapter 47 cases is very easy compared to most civil pleading.

CCP 47.02(a) allows the court to restore the illegally acquired property "during or after a criminal trial." Kennedy v. State 450 SW3d 571, 576 (Hou. 1st, 2014, no pet.). CCP 47.02(b) apparently applies before any criminal trial, and presumably that is why "written consent of the prosecuting attorney" is required. In that case, a simple motion by the State requesting a hearing to dispose of the property pursuant to Ch. 47 provides the consent, though a judge might want a more explicit statement. I'll send you some sample documents.
 
Posts: 15 | Registered: March 09, 2011Reply With QuoteReport This Post
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great!
 
Posts: 54 | Location: Anson, Texas, USA | Registered: November 13, 2001Reply With QuoteReport This Post
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