39-12-206 - Civil proceedings Injunctions Forfeiture of property Future criminal actions Statute of limitations. - Tennessee Statutes

39-12-206. Civil proceedings Injunctions Forfeiture of property Future criminal actions Statute of limitations.

(a)  Any circuit or chancery court may, after making due provision for the rights of innocent persons, in compliance with the Tennessee Rules of Civil Procedure, enjoin violations of the provisions of this part by issuing appropriate orders and judgments, including, but not limited to:

     (1)  Ordering any defendant to divest the defendant of any interest in any enterprise, including real property;

     (2)  Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in violation of the provisions of this part;

     (3)  Ordering the dissolution or reorganization of any enterprise;

     (4)  Ordering the suspension or revocation of a license, permit or prior approval guaranteed to any enterprise by any agency of the state; and

     (5)  Ordering the forfeiture of the charter of a corporation organized under the laws of the state, or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of this part and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked.

(b)  All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of a provision of this part is subject to civil forfeiture to the state. No fee paid for legal, medical or accounting service shall be subject to forfeiture under the provisions of this section, unless the person or persons to whom such fee was paid had knowledge that the funds used to pay the fee were derived from activity in violation of this part. The state shall dispose of all forfeited property as soon as commercially feasible, subject to the lawful claim of any creditor. If the property is not exercisable or transferable for value by the state, the forfeiture shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. The proceeds realized from forfeiture and disposition shall be promptly deposited in the criminal injuries compensation fund established by § 40-24-107.

(c)  Property subject to forfeiture under this section may be seized by a law enforcement officer upon court process. Seizure without process may be made, if:

     (1)  The seizure is incident to a lawful arrest or search or any inspection under an administrative inspection warrant; or

     (2)  The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.

(d)  If a seizure occurs under subsection (c), a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the law enforcement officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the law enforcement officer may:

     (1)  Place the property under seal;

     (2)  Remove the property to a place designated by the court; or

     (3)  Require another agency authorized by law to take custody of the property and remove it to any appropriate location.

(e)  The office of the attorney general and reporter shall institute all civil proceedings and RICO lien notices under this part. In any action brought under this section, the circuit or chancery court shall proceed as soon as practicable to the hearing and determination.

(f)  In a civil proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Pending final determination of a proceeding initiated under this section, the court may enter a temporary restraining order or a preliminary injunction, may require execution of satisfactory performance bond, or may take any other action, including the appointment of receiver, upon a showing of immediate danger or significant injury, including the possibility that any judgment for money damages might be difficult to execute or that such action is necessary to preserve the reachability of property subject to civil forfeiture. Following the entry of any order of civil forfeiture under this section, the trial court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action, including the appointment of a receiver, that the court deems proper to protect the interests of the plaintiff.

(g)  A final judgment or decree rendered in favor of the state in any criminal proceeding under this part shall estop the defendant in any subsequent civil action or proceeding as to all matters as to which such judgment or decree would be an estoppel as between the parties.

(h)  Notwithstanding any other provision of law, a criminal or civil action or proceeding under this part may be commenced at any time within five (5) years after the conduct in violation of the provisions of this part terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of the provisions of this part, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (f) that is based in whole or in part upon any matter complained of in any such prosecution action or proceeding shall be suspended during the pendency of the prosecution action or proceeding and for two (2) years following its termination.

(i)  The application of one (1) civil remedy under any provision of this part shall not preclude the application of any other remedy, civil or criminal, under this part or any other provision of law. Civil remedies under this part are supplemental and not mutually exclusive.

(j)  It is an element of the burden of proof in the final resolution of any civil proceeding instituted pursuant to this section that the defendant committed either the requisite predicate acts or a criminal violation of this part.

(k)  In any action in which the plaintiff substantially prevails, including preliminary proceedings under subsection (f), the plaintiff shall also recover reasonable attorney's fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred.

(l)  Personal service of any process in an action under this section may be made upon any person outside the state, if the person was a principal in any conduct constituting a violation of this part in this state. The person is deemed to have thereby submitted to the jurisdiction of the courts of this state for the purposes of this section.

(m)  Forfeited property shall be titled in the name of the state of Tennessee and shall be disposed of in accordance with the terms of this subsection (m). The office of the attorney general and reporter may contract for property management services, including, but not limited to, the collection, securing, safekeeping, repair and disposition of property forfeited or seized. The state shall self-insure forfeited and seized property, both realty and personalty, pursuant to title 12, chapter 3, part 9. Liability claims against the state relative to forfeited and seized property shall be presented to the claims commission in accordance with its governing sections and rules.

[Acts 1989, ch. 591, § 1; 1990, ch. 977, § 1.]