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Research & Commentary: Texas Considers Ending Civil Asset Forfeiture

January 24, 2019

In this Research & Commentary, Matthew Glans examines a proposal in Texas that would end civil asset forfeiture in the state.

In recent years, states have taken steps to limit civil asset forfeiture: the ability of law enforcement agencies to seize property from criminal suspects without a prosecution or conclusive evidence a crime was committed. Civil asset forfeiture has even been used with no criminal charges filed against those whose assets have been seized.

The standard of proof permitting seizure differs from state to state. Since 2014, 29 states have comprehensively reformed their forfeiture laws, and 15 states now require a criminal conviction before assets are seized.

Unfortunately, several states continue to pursue civil asset forfeiture in a draconian manner. However, as the issue gains more attention, more states are finally considering reforms to their civil asset forfeiture laws.

One of the more recent examples of this is taking place in Texas. Analysts at the nonpartisan Institute for Justice (IJ) have given the Lone Star State’s civil asset forfeiture laws a grade of D+, one of the lowest rankings in the nation. 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. Along with this low proof threshold for law enforcement, property owners must prove that they had no involvement with the criminal activity associated with their property when they seek to recover their property.

Another major flaw of the Lone Star State’s forfeiture laws is that they incentivize law enforcement agencies to gratuitously seize property. According to IJ, in cases where a default judgment is entered (which is common among forfeiture cases), law enforcement agencies retain up to 70 percent of forfeiture proceeds. In contested cases where property owners challenge the basis for the seizure, agencies retain up to 100 percent of proceeds. Unfortunately, this encourages Texas law enforcement agencies to seize as much property as possible—as much of the funds seized can be used to benefit their departments.

Texas law enforcement agencies have also been one of the most active participants in the Department of Justice’s (DOJ) equitable sharing program, placing 47th in IJ’s national rankings. Under equitable sharing agreements, federal and local law enforcement agencies agree to classify the suspected criminal activity as a federal crime, allowing them to divide the seized assets among federal and local officials. The federal agencies often receive 10-20 percent of the value of the seized assets, and the local police keep the remainder.

Unfortunately, this disconcerting arrangement allows local law enforcement agencies to ignore state law and circumvent the will of state legislatures and the property rights of citizens. From 2000 to 2013, Texas law enforcement agencies received $349.7 million in DOJ equitable sharing proceeds, averaging $25 million per year.

A new bill pre-filed in the Texas House would directly address many of these problems, end civil asset forfeiture, and transition the state to a criminal forfeiture process. Under the new bill, HB 404, the state would not be able to seize property without a criminal conviction in virtually all cases. The bill also addresses the incentive for law enforcement to seize as much property as possible by requiring all proceeds from seizures to be deposited in the general fund of the county where the agency is located. Currently Texas law enforcement agencies can keep up to 70 percent of forfeiture proceeds.

The bill also addresses the use of equitable sharing arrangements. HB 404 closes this loophole by disallowing a law enforcement agency or attorney representing the state from directly or indirectly transferring seized property to any federal law enforcement authority or other federal agency unless a limited number of exceptions are reached. These exceptions include: the value of the seized property exceeds $50,000 or the attorney representing the state determines that “the activity giving rise to the applicable investigation or seizure is interstate in nature and sufficiently complex to justify the transfer; or the seized property may only be forfeited under federal law.” This would effectively end the practice, as most forfeiture cases fall below the $50,000 threshold.

Another bill filed in the Texas House, HB 182, also reforms forfeitures by raising the burden of proof prosecutors must meet from “a preponderance of the evidence” to “clear and convincing evidence.” Although this falls short of requiring a conviction to seize assets, which is the ideal reform, it is a positive reform nonetheless.

Proponents of forfeiture argue it allows law enforcement agencies to seize assets, transforming property illicitly gained by criminals into resources to be used for public benefit. Critics of the process note it incentivizes law enforcement agencies to arbitrarily seize property, which often penalizes innocent property owners.

Assets should be seized only when they are used for criminal reasons and law enforcement should not have incentives to seize any more property than is necessary and justified. HB 404 would stop nearly all civil asset forfeiture abuses and restore property rights throughout the Lone Star State. Hopefully lawmakers in Texas, and several other states, will pass these much-needed reforms.

The following documents provide additional information about civil asset forfeiture.
 

Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition
http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf
Dick Carpenter, Lisa Knepper, Angela Erickson, and Jennifer McDonald argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law,” they write.

An Overview of Recent State-Level Forfeiture Reforms
http://www.heritage.org/crime-and-justice/report/overview-recent-state-level-forfeiture-reforms
Jason Snead of The Heritage Foundation examines civil asset forfeiture and how states are moving to reform their forfeiture laws.

Policing for Profit: Federal Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/
In this report by The Institute for Justice (IJ), IJ examines federal equitable sharing laws and the effect they have on property seizures in the states.

Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.

The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Policing for Profit: The Abuse of Civil Asset Forfeiture
https://www.heartland.org/policy-documents/policing-profit-abuse-civil-asset-forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture Reform Goes Mainstream
https://www.heartland.org/policy-documents/civil-asset-forfeiture-reform-goes-mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.

Sidebar: Stricter State Law, More Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/stricter-state-law-more-equitable-sharing/
The Institute for Justice examines a 2011 study published in the Journal of Criminal Justice by criminologists Jefferson Holcomb, Tomislav Kovandzic, and Marian Williams that found local and state law enforcement agencies in states choosing to make civil forfeiture more difficult and less financially rewarding through state laws have tended to turn to federal equitable sharing to make up for lost funds.

 

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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Author
Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance. In 2012, Glans was named senior policy analyst.
mglans@heartland.org @HeartlandGR