Civil Asset Forfeiture in Texas: An Overview

Introduction

Civil asset forfeiture in Texas stands as one of the most contentious practices in the state’s legal landscape. Originally designed as a powerful tool to dismantle criminal enterprises by seizing assets tied to illegal activities, civil asset forfeiture has increasingly come under fire for its potential to infringe on individual property rights and due process. In Texas, the debate is especially heated, with law enforcement agencies praising the practice for its effectiveness in combating crime, while critics argue it can lead to significant abuses and injustices.

In this explainer, we attempt to delve into the complexities of civil asset forfeiture in Texas, exploring its legal framework, high-profile cases, and the ongoing battle for reform. By examining both sides of the debate and highlighting notable legislative efforts, we aim to provide a comprehensive overview of this critical issue, shedding light on the delicate balance between law enforcement efficacy and the protection of citizens’ rights.

What is Civil Asset Forfeiture?

Civil asset forfeiture allows law enforcement to confiscate property suspected of being involved in criminal activity without necessarily charging the owner with a crime. This can include cash, vehicles, real estate, and other valuable assets. The underlying principle is to deprive criminals of the proceeds of their illegal activities and disrupt criminal enterprises.

What are the Differences Between Civil and Criminal Asset Forfeiture?

Civil Asset Forfeiture

Nature of Proceedings: Rem proceeding (case is against the property, not the owner)

Burden of Proof: The state must prove by a preponderance of the evidence (more likely than not) that the property is connected to criminal activity.

Criminal Charges: No criminal charges or convictions are required against the property owner for the forfeiture to occur.

Legal Representation: Property owners are not entitled to a court-appointed attorney, they must instead hire their own legal representation if they wish to contest the forfeiture.

Purpose: Primarily used to disrupt criminal enterprises and deprive them of resources.

Incentives: Law enforcement agencies often retain a portion of the proceeds from forfeited assets, creating potential conflicts of interest.

Criminal Asset Forfeiture

Nature of Proceedings: Personam proceeding (case is against the individual and is part of a criminal prosecution)

Burden of Proof: The state must prove beyond a reasonable doubt that the individual committed a crime and that the property is connected to that crime.

Criminal Charges: Requires a criminal conviction of the property owner as a prerequisite for forfeiture.

Legal Representation: Property owners are entitled to legal representation, including a court-appointed attorney if they cannot afford one, as part of the criminal defense.

Purpose: Intended to punish convicted criminals and deter criminal activity by confiscating assets used in or gained from illegal activities.

Incentives: Proceeds typically go to general state or federal funds, reducing potential conflicts of interest for law enforcement agencies.

Legal Framework in Texas

In Texas, civil asset forfeiture is governed by Chapter 59 of the Texas Code of Criminal Procedure. The law allows the state to seize property that is:

  • Used in the commission of a felony
  • Proceeds derived from certain criminal activities
  • Instrumentalities used to commit crimes

To initiate forfeiture, the state must file a civil lawsuit against the property itself, not the owner. This process, known as in rem proceedings, creates a legal fiction where the property is treated as the defendant.

Burden of Proof

One of the most contentious aspects of civil asset forfeiture in Texas is the burden of proof. Initially, the state must demonstrate by a preponderance of the evidence that the property is connected to criminal activity. This standard, which requires showing that it is more likely than not that the property is connected to crime, is lower than the “beyond a reasonable doubt” standard required for criminal convictions.

Criticisms of Civil Asset Forfeiture

Critics argue that civil asset forfeiture violates fundamental property rights and due process. Key criticisms include:

  • Lack of Due Process: Property owners often face significant legal hurdles in contesting seizures. Unlike criminal cases, they are not entitled to a court-appointed attorney, making it difficult for those with limited financial resources to fight the forfeiture.
  • Profit Motive: In Texas, law enforcement agencies are allowed to retain a significant portion of the proceeds from forfeited property, which critics argue creates a perverse incentive to prioritize revenue generation over justice.
  • Disproportionate Impact: There is evidence suggesting that civil asset forfeiture disproportionately affects low-income individuals and communities of specific races.

Notable Cases

Several high-profile cases have highlighted the controversial nature of civil asset forfeiture in Texas. The following are two examples:

  1. Marble Falls Case:
    • Background: In 2013, a man traveling through Marble Falls, Texas, had $6,000 seized by police during a routine traffic stop. The officers suspected the money was related to drug activity, although no drugs were found, and the man was not charged with any crime.
    • Details:
      • Legal Battle: The owner of the seized cash, Roderick Daniels, had to fight a lengthy legal battle to reclaim his money. The legal process involved proving that the cash was not connected to criminal activity, which posed significant challenges due to the lower burden of proof required in civil forfeiture cases.
      • Outcome: Eventually, Daniels settled with the city, and his money was returned. The case highlighted the difficulties individuals face in contesting forfeitures and sparked public outrage over the perceived overreach of law enforcement.
  1. Tenaha Case:
    • Background: In Tenaha, a small town in East Texas, law enforcement officials were accused of systematically targeting out-of-state drivers for forfeiture, often without any substantial evidence of criminal activity. This practice led to allegations of racial profiling and abuse of power.
    • Details:
      • Class-Action Lawsuit: In 2009, a class-action lawsuit was filed against the Tenaha Police Department and other local officials. The plaintiffs alleged that law enforcement officers were stopping drivers, particularly African Americans and Latinos, and seizing their property without cause. The lawsuit uncovered practices where officers would threaten drivers with criminal charges unless they signed over their assets.
      • Settlement and Reforms: The case was settled in 2012, with the defendants agreeing to changes in their forfeiture practices. The settlement included the implementation of new policies to prevent future abuses, increased transparency, and the establishment of a fund to compensate the victims of the illegal seizures.

Ongoing Reform Efforts

In response to growing criticism, Texas has seen several attempts at reforming civil asset forfeiture laws:

  1. Increased Transparency: In 2011, the Texas Legislature passed Senate Bill 316, authored by then State Sen. John Whitmire (D-Houston), which aimed to increase transparency by requiring law enforcement agencies to report detailed information about their forfeiture activities.
  1. Criminal Asset Forfeiture Change: In 2015, the Texas Legislature passed House Bill 530, authored by State Rep. Ana Hernandez (D-Houston), which required law enforcement officials to obtain a criminal conviction before forfeiture in some cases, although it did not apply to all forfeitures.
  1. Ongoing Legislative Efforts: Various bills have been introduced in recent legislative sessions to further tighten the rules around forfeiture, such as increasing the burden of proof to “clear and convincing evidence” and eliminating the direct profit incentive for law enforcement agencies.
    • 84th Legislative Session (2015):
      • Then-State Rep. David Simpson (R-Longview) authored House Bill 3171, supported by a bipartisan group of House lawmakers. The legislation sought to repeal civil asset forfeiture and establish a criminal asset forfeiture system in its place. The bill was considered in a public hearing in the House State Affairs Committee but was left pending and never voted on. Its companion legislation, Senate Bill 1863, authored by then-State Sen. Konni Burton (R-Colleyville), never received a public hearing in the Texas Senate Criminal Justice Committee.
    • 85th Legislative Session (2017):
      • Then-State Sen. Konni Burton (R-Colleyville) led a press conference to announce a bipartisan coalition of lawmakers aiming to reform the practice. This coalition filed multiple bills to change police authorities, require a criminal conviction before the forfeiture of property, increase disclosures from law enforcement agencies, and, in some cases, abolish the practice altogether.
      • Senate Bill 380, by Burton (R), sought to repeal civil asset forfeiture and establish criminal asset forfeiture instead. Despite having bipartisan support, the bill never received a public hearing in the Senate State Affairs Committee. Its companion legislation, House Bill 1364, by State Rep. Senfronia Thompson (D-Houston), was considered by the Asset Forfeiture Subcommittee of the House Criminal Jurisprudence Committee but was left pending and never considered by the overall committee.
    • 88th Legislative Session (2023): In the most recent legislative session (2023), several bills were introduced to address civil asset forfeiture:
      • House Bill 3659 by State Rep. Cole Hefner (R-Mount Pleasant) sought to exempt certain property below a specific amount from seizure, raise the evidentiary standard for the state, and require monthly public reports to the Office of the Attorney General (OAG). The legislation passed the House with a vote of 139 in favor and 5 opposed but never received a public hearing in the Texas Senate.
      • House Bill 69 by State Rep. Matt Schaefer (R-Tyler) aimed to raise the standard of proof required to forfeit property in certain civil asset forfeiture cases, shifting the burden of proof to the state when an “innocent owner” defense is raised. Although it passed out of the House Criminal Jurisprudence Committee, it was never considered by the overall Texas House of Representatives. Similarly, its companion, Senate Bill 2458, authored by State Sen. Bryan Hughes (R-Mount Pleasant), was never considered by the Senate Criminal Justice Committee.
      • House Bill 3758 by State Rep. Senfronia Thompson (D-Houston) sought to prohibit the seizure of homestead property, motor vehicles valued at $10,000 or less, and currency of $200 or less. It also specified the process for forfeiture and required certain assets to be connected to a chargeable offense, with provisions for the quick return of property if charges are dropped. The bill passed out of the House Criminal Jurisprudence and Calendars Committees but was not considered ahead of the legislative deadline.
      • House Bill 2992 by State Rep. Brian Harrison (R-Midlothian) required law enforcement agencies to submit information related to asset forfeiture cases. The legislation passed the Texas House with a vote of 116 in favor and 25 opposed but was never considered by the Texas Senate Criminal Justice Committee. Its companion, Senate Bill 665, authored by State Sen. Nathan Johnson (D-Dallas), also did not receive consideration.
      • House Bill 928 by State Rep. Harold Dutton (D-Houston) required a criminal conviction for the use of forfeiture. It received a public hearing in the Asset Forfeiture Subcommittee of the House Criminal Jurisprudence Committee but was left pending and never voted on.
      • House Bill 1874 by State Rep. Candy Noble (R-Lucas) sought to require law enforcement agencies responsible for wrongful seizures to pay damages and allow judges to award attorney’s fees to rightful property owners. The legislation passed out of the Texas House Criminal Jurisprudence Committee but was never considered by the House Calendars Committee, and thus never by the overall Texas House of Representatives.

Current Landscape

Despite these reform efforts, civil asset forfeiture remains a deeply entrenched practice in Texas. Data from the Texas Office of Court Administration shows that law enforcement agencies continue to seize millions of dollars’ worth of property annually. However, the growing public awareness and legislative scrutiny suggest that further changes may be on the horizon.

Of the three major political parties in the state of Texas, all have similar stated positions on the issue of Civil Asset Forfeiture.

The Republican Party of Texas 2024 Platform states,

151. Civil Asset Forfeiture: We call upon the Texas Legislature to abolish civil asset forfeiture, independently or in partnership with federal authorities, and to ensure that private property only be forfeited upon a criminal conviction.

2024 RPT Platform, Plank 151

The Democratic Party of Texas 2024 Platform simply states, “Ensure civil asset forfeiture only upon a criminal conviction…” whereas the Libertarian Party of Texas 2024 Platform states,

I.2.b Civil Asset Forfeiture: LP Texas calls for the elimination of civil asset forfeiture, which allows for the unjust seizure of property from the accused without due process, with the exception of criminal conviction, in which such property may only be used in restitution to the victims.

2024 Libertarian Party of Texas Platform, Plank I.2.b

Arguments for Civil Asset Forfeiture

Proponents of civil asset forfeiture argue that it is an essential tool for law enforcement to combat serious crimes, including drug trafficking, organized crime, and human trafficking. Key arguments include:

  • Disrupting Criminal Enterprises: By seizing assets, law enforcement can significantly disrupt the operations of criminal organizations.
  • Funding Law Enforcement: Proceeds from forfeiture can fund important law enforcement initiatives, including drug treatment programs and community policing efforts.
  • Deterrent Effect: The threat of losing property can serve as a powerful deterrent against engaging in criminal activity.

Balancing Act: Ensuring Justice and Accountability

Finding a balance between effective law enforcement and protecting individual rights is crucial. Ensuring justice and accountability involves:

  • Stronger Oversight: Implementing rigorous oversight mechanisms to prevent abuse and ensure transparency in forfeiture proceedings.
  • Legal Representation: Providing property owners with access to legal representation to contest seizures effectively.
  • Community Involvement: Engaging community stakeholders in discussions about the impact of civil asset forfeiture and potential reforms.

Conclusion

Civil asset forfeiture in Texas is a deeply polarizing issue that touches on fundamental principles of justice, property rights, and law enforcement effectiveness. While the practice aims to cripple criminal enterprises by depriving them of their ill-gotten gains, it also raises serious concerns about due process and the potential for abuse. The cases of Marble Falls and Tenaha vividly illustrate the human impact and the challenges individuals face in reclaiming their property.

Despite some legislative reforms and ongoing efforts to address these issues, the battle is far from over. The persistent introduction of new bills and the vigorous public debate underscore the need for continued vigilance and advocacy. Ensuring that forfeiture practices are transparent, fair, and just is essential for maintaining public trust in the legal system.

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