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Civil Asset Forfeiture Reform Under Consideration in Texas Legislature

March 21, 2019

Texas’ current civil asset forfeiture laws are rated among the worst in the nation.

Two bills to reform Texas’ civil asset forfeiture laws are being considered in the state legislature.

H.B. 404, introduced by Rep. Senfronia Thompson (D-Houston), would end civil asset forfeiture and transition the state to a criminal-asset forfeiture process.

H.B. 182, introduced by Rep. Terry Canales (D-Edinburg), and the identical S.B. 247, by Sen. Juan Hinojosa (D-Edinburg), address criminal asset forfeiture.

Texas’ civil asset forfeiture laws are rated among the worst in the nation, receiving a grade of D+ in a report by the Institute for Justice (IJ), a legal reform group.

Burden on ‘Innocent Owner’

Texas sets a low bar for seizing property, IJ reported in its 2015 study on Policing for Profit: The Abuse of Civil Asset Forfeiture.

“The standard of proof required to forfeit property in Texas is just preponderance of the evidence, and an innocent owner bears the burden of proving that she was not involved in any crimes associated with her property before she can get it back,” the study states.

H.B. 182 would improve the forfeiture process in Texas, says Matthew Glans, a senior policy analyst with The Heartland Institute, which publishes Budget & Tax News.

“Under existing law, Texas law enforcement officials only have to prove by a preponderance of the evidence that property is associated with criminal activity to seize it,” said Glans. “Property owners must prove that they had no involvement with the criminal activity associated with their property when they seek to recover it.”

 H.B. 182 would raise the burden of proof prosecutors must meet from “a preponderance of the evidence” to “clear and convincing evidence.”

“H.B. 404 would require the state to obtain a criminal conviction before they could seize property in almost all cases,” said Glans. “Although H.B. 182 falls short of requiring a conviction, which is the ideal reform, it is a positive reform nonetheless.” .

Perverse Incentives

Texas police agencies are rewarded for asset seizures because, when the property is sold, they are allowed to keep the money for departmental use, the IJ report states.

“In cases where a default judgment is entered—as is the case in the majority of forfeiture actions—agencies retain up to 70 percent of forfeiture proceeds,” the report states. “In contested cases—those in which the property owner challenges the basis for the seizure—agencies retain up to 100 percent of proceeds.”

To address the incentive for law enforcement to seize as much property as possible, H.B. 404 requires all proceeds from seizures be deposited in the general fund of the county where the agency is located.

Federal Loot-Sharing

Texas law enforcement agencies have also been among the most active participants in the U.S. Department of Justice’s (DOJ) equitable sharing program, placing 47th in IJ’s national rankings.

Under equitable sharing agreements, a local law enforcement agency classifies a suspected criminal activity as a federal crime, and federal and local officials divide the seized assets. The federal agencies often receive 10 percent to 20 percent of the value of the seized assets, and the local police keep the remainder.

From 2000 to 2013, Texas law enforcement agencies received $349.7 million in DOJ equitable sharing proceeds, averaging $25 million per year.

“This disconcerting arrangement allows local law enforcement agencies to ignore state law and circumvent the will of state legislatures and citizens,” said Glans.

Both H.B. 404 and H.B. 182 would prohibit state agencies from participating in federal forfeiture unless the amount is $50,000 or more, there is interstate activity, and federal law allows the forfeiture.

New Constitutionality Questions

A recent ruling by the U.S. Supreme Court raises questions about the constitutionality of forfeiture, says Justin Haskins, a research fellow with The Heartland Institute.

The U.S. Supreme Court ruled in Timbs v. Indiana on February 20 the Eighth Amendment’s excessive fines clause applies to the states under the 14th Amendment’s due process clause.

The court also found the forfeiture of Timbs’ assets was an impermissible excessive fine because the value of the vehicle seized was four times the maximum monetary fine that could have been assessed under Indiana law.

“I think there could be some very interesting repercussions, such as what makes a fine excessive and what makes a punishment excessive,” said Haskins.

“For a long, long time, states have had the ability to make that determination themselves; they’ve decided what’s excessive,” Haskins said. “Now they don’t have the ability to do that. So, how do you make the determination of what’s an excessive fine and what’s not an excessive fine, what’s a penalty that’s unjust and what isn’t?”

Reform Efforts Widespread

The legislation would add Texas to a growing roster of states that have reformed this process, says Glans.

“Since 2014, 24 states have comprehensively reformed their forfeiture laws, and 14 states now require a criminal conviction before assets are seized,” said Glans. “Three states have even banned the practice altogether.”

The Texas State Legislature meets through May.

Bill Eastland (eastland@reagan.com) writes from Arlington, Texas.

Official Connections:

State Rep. Senfronia Thompson (D-Houston):

 https://house.texas.gov/members/member-page/?district=141

State Rep. Terry Canales (D-Edinburg):

https://house.texas.gov/members/member-page/?district=40

 State Sen. Juan Hinojosa (D-Edinburg):

 https://senate.texas.gov/member.php?d=20

Internet Info:

Dick M. Carpenter II, Lisa Knepper, Angela C. Erickson, and Jennifer McDonald, Policing for Profit: The Abuse of Civil Asset Forfeiture, 2nd Edition, Institute for Justice, November 10, 2015:

https://www.heartland.org/publications-resources/publications/policing-for-profit-the-abuse-of-civil-asset-forfeiture-second-edition