Senate Bill 2913

AN ACT TO CREATE FUNDING FOR THE YOUTH PARTICIPATION INITIATIVE; TO ESTABLISH LIQUIDATED CIVIL DAMAGES TO THE STATE FOR UNLAWFUL KILLING, POSSESSION, OR TAKING OF WILD ANIMALS, WILD BIRDS, OR FISH; TO AMEND SECTION 49-7-103, MISSISSIPPI CODE OF 1972, TO REMOVE THE CIVIL FORFEITURES FOR HEADLIGHTING DEER; TO AMEND SECTIONS 49-7-251, 49-7-253 AND 49-7-257, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) Any person, resident or nonresident, other than a minor under the age of sixteen (16) years, who willfully kills, destroys, takes, or possesses any wild animal in this state, in violation of any of the laws of this state, or of the United States, or in violation of any rule or regulation of the Commission on Wildlife, Fisheries and Parks or any provision of the Code of Federal Regulations, may be liable to the state for civil damages caused to the natural resources of the state, and may be required to make restitution to the state, acting by and through the Mississippi Department of Wildlife, Fisheries and Parks, in the form of liquidated damages. The Commission on Wildlife, Fisheries and Parks is authorized to develop and implement a schedule of civil damages for each species of animal or category of offense to recoup some of the department's administrative costs of enforcement, not to exceed Two Thousand, Five Hundred Dollars ($2,500.00) per occurrence.

(2) The liquidated damages provided for in this chapter, and any taxable costs, shall be collected by the Department of Wildlife, Fisheries and Parks in civil suit, in the name of the State of Mississippi, against the person claimed to be liable, or may be assessed as an administrative penalty in the nature of liquidated damages, by a court of competent jurisdiction having jurisdiction over the criminal proceedings. Conviction of a criminal offense shall be prima facie evidence of the defendant's civil liability. Failure to obtain a conviction on an underlying criminal charge shall not create a bar to a separate civil action for liquidated damages. Liquidated damages and taxable costs collected by the department shall be deposited in the Fisheries and Wildlife Fund in Section 49-5-21 and used to fund the Youth Participation Initiative. Any other court, public agency or department of the state, collecting liquidated damages and taxable costs, shall remit the monies collected to the State Treasurer, who shall deposit them in the Fisheries and Wildlife Fund.

(3) If a person found liable for the damages set forth above, fails to pay the required civil penalty within ninety (90) days of the determination of liability, the commission may revoke the hunting, trapping and fishing privileges of that person until all fines and civil penalties have been paid in full.

SECTION 2. Section 49-7-103, Mississippi Code of 1972, is amended as follows:

49-7-103. (1) The following property is subject to forfeiture: any firearm, equipment, appliance, conveyance or other property used directly or indirectly * * * in fishing for, or killing or capturing fish by using a telephone, magneto, battery, or any other electrically operated device, including, but not limited to, any all-terrain vehicle, trailer, boat, outboard motor, airplane, net, light, battery, magneto, wires, telephone device, or any other device or contrivance or other vehicle, or which may be used in the transportation of * * * any dead or live fish killed, stunned, captured, or taken by using a telephone, battery, magneto, or any other electrically operated device. No motor vehicle that is of the type required to be titled under the Mississippi Motor Vehicle Title Law is subject to forfeiture. Property subject to forfeiture may be seized by any employee of the department or other officer of the law including any sheriff or deputy sheriff. Upon the seizure of such property proceedings may be instituted pursuant to Sections 49-7-251 through 49-7-257.

(2) Property seized under the authority of this section may be forfeited by the court of original criminal jurisdiction as an additional penalty and part of the sentence for a conviction for a violation of any provision of this title.

(3) Property seized for a violation of Section 49-7-95 (headlighting deer), Mississippi Code of 1972, and forfeiture proceedings instituted pursuant to the provisions of Sections 49-7-251 through 49-7-257, prior to July 1, 2010, may go forward, and the repeal of this civil forfeiture authority shall not affect the validity or resolution of those proceedings.

(4) From and after July 1, 2010, property seized for a violation of Section 49-7-81, Mississippi Code of 1972, shall be forfeited to the Mississippi Department of Wildlife, Fisheries and Parks, as part of the penalty assessed by the court of criminal jurisdiction.

SECTION 3. Section 49-7-251, Mississippi Code of 1972, is amended as follows:

49-7-251. (1) Except as otherwise provided in Section 49-7-257, when any property is seized pursuant to Section * * * 49-15-21(2) or 59-21-33, Mississippi Code of 1972, proceedings under this section shall be instituted promptly. Provided, however, that the seizing law enforcement agency may, in the sound exercise of discretion, decide not to bring a forfeiture action if the interests of bona fide lienholders or secured creditors equal or exceed the value of the seized property, or if other factors would produce a negative economic result. Provided further, that no property shall be subject to forfeiture which has been stolen from its owner if the owner can be identified and prosecution for the theft has been initiated.

(2) A petition for forfeiture shall be filed promptly in the name of the State of Mississippi, the county or the municipality and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the circuit court or the county court if a county court exists in the county and the value of the seized property is within the jurisdictional limits of the county court as set forth in Section 9-9-21, Mississippi Code of 1972. A copy of such petition shall be served upon the following persons by service of process in the same manner as in civil cases:

(a) The owner of the property, if address is known;

(b) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by the Department of Wildlife, Fisheries and Parks or the local law enforcement agency by making a good faith effort to ascertain the identity of such secured party as described in subsections (3), (4), (5), (6) and (7) of this section;

(c) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the Department of Wildlife, Fisheries and Parks or the local law enforcement agency has actual knowledge; and

(d) Any person in possession of property subject to forfeiture at the time that it was seized.

(3) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall make inquiry of the Department of Revenue as to what the records of the Department of Revenue show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.

(4) If the property is a motor vehicle and is not titled in the State of Mississippi, then the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall attempt to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall make inquiry of the appropriate agency of that state as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest or other instrument in the nature of a security device which affects the vehicle.

(5) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall make inquiry of the appropriate office designated in Section 75-9-501, Mississippi Code of 1972, as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.

(6) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall make inquiry of the Administrator of the Mississippi Aeronautics Commission as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.

(7) In the case of all other personal property subject to forfeiture, if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall make a good faith inquiry to identify the holder of any such instrument.

(8) In the event the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall cause any record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest which affects the property to be named in the petition of forfeiture and to be served with process in the same manner as in civil cases.

(9) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, the Department of Wildlife, Fisheries and Parks or the local law enforcement agency shall file with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, Mississippi Code of 1972, and shall be served as provided in Section 11-33-37, Mississippi Code of 1972, for publication of notice for attachments at law.

(10) No proceedings instituted pursuant to the provisions of this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by subsections (3) through (7) of this section shall be introduced into evidence at the hearing.

SECTION 4. Section 49-7-253, Mississippi Code of 1972, is amended as follows:

49-7-253. (1) Except as otherwise provided in Section 49-7-257, an owner of property that has been seized pursuant to Section * * * 49-15-21(2) or 59-21-33, Mississippi Code of 1972, shall file an answer within thirty (30) days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court, if court would not be in progress within thirty (30) days after filing the answer. Provided, however, that upon request by the Mississippi Department of Wildlife, Fisheries and Parks, the local law enforcement agency or the owner of the property, the court may postpone said forfeiture hearing to a date past the time any criminal action is pending against said owner.

(2) If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The standard of proof placed upon the petitioner in regard to property forfeited under the provisions of this article shall be by a preponderance of the evidence.

(3) At the hearing any claimant of any right, title or interest in the property may prove his lien, encumbrance, security interest or other interest in the nature of a security interest to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.

(4) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency.

SECTION 5. Section 49-7-257, Mississippi Code of 1972, is amended as follows:

49-7-257. (1) When any property the value of which does not exceed Five Thousand Dollars ($5,000.00), is seized pursuant to Section * * * 49-15-21(2) or 59-21-33, Mississippi Code of 1972, the property may be forfeited by the administrative forfeiture procedures provided for in this section.

(2) The attorney for the seizing law enforcement agency shall provide notice of intention to forfeit the seized property administratively, by certified mail, return receipt requested, to all persons who are required to be notified pursuant to Section 49-7-251(2).

(3) In the event that notice of intention to forfeit the seized property administratively cannot be given as provided in subsection (2) of this section because of refusal, failure to claim, insufficient address or any other reason, the attorney for the seizing law enforcement agency shall provide notice by publication in a newspaper of general circulation in the county in which the seizure occurred for once a week for three (3) consecutive weeks.

(4) Notice pursuant to subsections (2) and (3) of this section shall include the following information:

(a) A description of the property;

(b) The approximate value of the property;

(d) The connection between the property and the violation of the Game and Fish Law, as set forth in Section 49-7-103, Mississippi Code of 1972;

(e) The instructions for filing a request for judicial review; and

(f) A statement that the property will be forfeited to the seizing law enforcement agency if a request for judicial review is not timely filed.

(5) Persons claiming an interest in the seized property may initiate judicial review of the seizure and proposed forfeiture by filing a request for judicial review with the attorney for the seizing law enforcement agency, within thirty (30) days after receipt of the certified letter or within thirty (30) days after the first publication of notice, whichever is applicable.

(6) If no request for judicial review is timely filed, the attorney for the seizing law enforcement agency shall prepare a written declaration of forfeiture of the subject property and the forfeited property shall be used, distributed or disposed of in accordance with the provisions of Section 49-7-255.

(7) Upon receipt of a timely request for judicial review, the attorney for the seizing law enforcement agency shall promptly file a petition for forfeiture and proceed as provided in Section 49-7-251.

SECTION 6. This act shall be in full force and effect from

and after July 1, 2010.