February 10, 2017
Civil asset forfeiture is one of the most controversial practices in the American criminal justice system. Civil asset forfeiture is a process by which local, state, and federal law enforcement authorities obtain ownership and control of an individual's property without committing a crime.
Unlike legal action taken against a person accused of criminal conduct, civil forfeiture is a case brought against the property itself. The property is guilty until proven innocent, and is held by the seizing agency regardless of whether criminal charges are brought forth against the individual. Once property is seized, the legal costs associated with getting one's property back often far exceed the cost of the property itself, placing a great burden on the property owner. And since many civil forfeiture proceedings take a year or more to navigate, many forfeiture proceeds go uncontested.
Right now, state law allows law enforcement to retain 70% of forfeiture funds and may be spent for any law enforcement purpose. Law enforcement agencies at all levels that are experiencing budget deficits have an incentive to rely on civil asset forfeiture to boost revenue, fund operations, buy new equipment, and increase employee salaries. They even set up road blocks and do pretext stops to search motor vehicles for cash or other valuable personal property. These laws can encourage law enforcement agencies to "police for profit," and undermine the property rights of innocent owners.
Although the Texas Legislature has passed measures to curtail controversial practices from law enforcement such as the roadside waiver of rights and purchasing frivolous items like margarita machines using forfeiture funds, expenditures have been reported to occur on items of questionable value. For example, one large Texas county showed the purchase of several microwave ovens and a 42-inch LED smart TV. Through civil asset forfeitures, an average of $41.5 million per year is funneled into Texas law enforcement agency budgets.
In Texas, the law gives the government a very low burden of proof in civil forfeiture cases. In order to seize and forfeit a property, the government only has to show by a "preponderance of the evidence" that it was connected with an alleged crime. The result of this scheme is that Texans are deprived of their property without due process or evidence of wrongdoing.
With state laws that grant law enforcement a strong incentive to seize property, a low burden of proof to meet before seizing someone's property, and weak protections for property owners, it is no surprise that Texas' civil forfeiture laws received a grade of "D" in "Policing for Profit," a nationwide report from the Institute for Justice. In fact, a statewide poll released this week by the Texas Public Policy Foundation found that 88% of Texas voters want property rights protected from overzealous police and prosecutors who can take and keep money, houses, and cars without a criminal conviction.
Forfeiture laws vary from state to state and a growing number of states now require criminal convictions before property may be forfeited. New Mexico, Montana, and North Carolina all require actual conviction before assets can be forfeited.
In the last few sessions, I have authored legislation to raise the burden of proof that the state must prove from a "preponderance of evidence" to a "clear and convincing" standard. The heightened legal burden placed on the state will not interfere with our law enforcement agencies' ability to do their jobs, and will uphold the property rights of all Texans.
This session, I have authored Senate Bill 156 as an important protection for Texans' property rights and civil liberties. This critical change to our Texas criminal justice system will better protect Texas property owners and stop abusive forfeiture practices, while also allowing the government to still claim property used in criminal activity.