[2015 Session] Improve Due Process and Accountability In Criminal Asset Forfeiture

Policy Background:

Asset forfeiture refers to confiscating perceived contraband that contributed to or resulted from a crime. Law enforcement may seize a person’s money, vehicle, house, or other possessions if those possessions were used or intended to be used in a crime, or were the proceeds of a crime. The State then files a civil forfeiture action against those possessions, and must only prove by a “preponderance of the evidence” that the possessions were contraband. Those possessions are ultimately to be used for strict law enforcement purposes.

Asset forfeiture was intended as a means to pursue wealth belonging to drug kingpins, but it has since devolved into a system overwhelmingly focused on much lower-level cases. Moreover, the standard for civil seizure – “preponderance of the evidence” (more likely than not to be true) – is lower than the standard required for a criminal conviction, and it especially is difficult to overcome for individuals without sufficient means to challenge the seizure of their possessions.

Alarmingly, numerous examples have surfaced in the press of prosecutors pursuing assets from individuals who were never convicted or even charged with a crime. Some agencies have become particularly reliant on forfeiture revenue in ways that skew law enforcement priorities toward profit and away from public protection.

Texas policy-makers should strengthen the standard for seizing assets under civil law and require a criminal conviction before assets can be permanently taken.

Policy-makers should also strengthen current reporting requirements relating to asset expenditures by law enforcement, making reports more detailed so policy-makers can gain a better understanding of the numerous budget and policy issues surrounding asset forfeiture.

Key Facts:

  • In Tenaha, Texas, between 2006 and 2008, the police seized an estimated $3 million worth of property from motorists, with over 150 seizure cases believed to be invalid.[1]
  • According to the Texas Public Policy Foundation, “the legal costs associated with recovering one’s property often far exceed the value of the property itself.”[2]

Relevant Bills:

  • Bill Number: HB 248 (Leach)
    Bill Caption: Relating to the state’s burden of proof in a criminal asset forfeiture proceeding.
  • Bill Number: HB 472 (Stephenson)
    Bill Caption: Relating to the reporting and disposition of proceeds and property from criminal asset forfeiture.
    Hearing Notice: House Criminal Jurisprudence Committee, Notice of Public Hearing on April 20, 2015
  • Bill Number: HB 2623 (Zedler)
    Bill Caption: Relating to forfeiture actions by the federal government and to the transfer of seized property between certain state and federal entities.
  • Bill Number: HB 3171 (Simpson, Sylvester Turner, Dutton)
    Bill Caption: Relating to repealing civil asset forfeiture provisions and establishing criminal asset forfeiture in this state.
    Hearing Notice: House State Affairs Committee, Notice of Public Hearing on April 15, 2015
  • Bill Number: HB 3415 (Canales)
    Bill Caption: Relating to the award of court costs, storage fees, and attorney's fees in a criminal asset forfeiture proceeding.
    Hearing Notice: House Criminal Jurisprudence Committee, Notice of Public Hearing on April 20, 2015
  • Bill Number: HB 3557 (Turner, Sylvester)
    Bill Caption: Relating to the reporting of the seizure and forfeiture of contraband.
  • Bill Number: SB 566 (Taylor, Van)
    Bill Caption: Relating to the use of proceeds received from criminal asset forfeiture.
  • Bill Number: SB 1565 (Burton)
    Bill Caption: Relating to criminal asset forfeiture proceedings.
  • Bill Number: SB 1676 (Huffines)
    Bill Caption: Relating to the state's burden of proof in certain criminal asset forfeiture proceedings.
  • Bill Number: SB 1863 (Burton)
    Bill Caption: Relating to repealing civil asset forfeiture provisions and establishing criminal asset forfeiture in this state.

[1] Texas Public Policy Foundation, Center for Effective Justice, Taking Contraband Without Taking Our Liberties: Civil Asset Forfeiture Reform in Texas, March 2014, p. 1; http://www.texaspolicy.com/sites/default/files/documents/2014-03-PP09-CivilAssetForteitureReformInTexas-CEJ-DerekCohen.pdf

[2] Ibid, p. 3.