Texas law enforcement can seize, and keep, an individual’s private property—cash, cars, houses, or ranch/farm equipment, for example—when they suspect the property is connected to criminal activity.
According to the Institute for Justice, the federal government and all 50 states have civil and/or criminal asset forfeiture laws. These laws in 43 states allow the police and prosecutors to keep anywhere from half to all of the assets seized through civil forfeiture.
Texas has one of the worse—if not the worse—reputations for stealing people’s personal property under the guise of suspected criminal activity.
Police Seize Property and Threaten Unsubstantiated Charges
In a March 2017 ruling in Leonard v. Texas, conservative Supreme Court Justice Clarence Thomas wrote a singular blistering opinion blasting Texas’s civil asset forfeiture statute—Tex. Code Crim. Proc. Ann., Art. 59.01 (Vernon Cum. Supp. 2016)—which allows the state to initiate civil forfeiture proceedings and permits a judge to order property forfeiture without a criminal charge, much less a conviction.
“This [forfeiture] system – where police can seize property with limited judicial oversight and retain it for their own use – has led to egregious and well-chronicled abuses,” Thomas wrote. “According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights.
“In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
Federal Forfeiture Statute Limited
Four months later the Supreme Court handed down a unanimous decision, Honeycutt v. United States, which held that federal criminal asset forfeiture statutes are “limited to property the defendant himself actually acquired as the result of the crime.” The court effectively set aside the “joint and several liability” in forfeiture proceedings for members of a criminal conspiracy unless it can be shown that an individual conspirator “acquired” or “personally” benefitted from the forfeitable property.
Forfeiture can Violate Unconstitutional Excessive Fines Clause
And in a ruling earlier this year, Timbs v. Indiana, confronted a case in which the Indiana Supreme Court authorized the forfeiture of Tyson Timbs’s $42,000 Land Rover SUV after he pled guilty to dealing in a controlled substance. The state argued to the trial court that the vehicle had been used to transport heroin. The trial judge rejected the state’s forfeiture request, saying the vehicle was purchased for four times the maximum $10,000 fine that could be assessed against Timbs for his drug conviction and, therefore, its seizure would be unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Indiana Supreme Court reversed the trial court’s ruling and permitted the forfeiture because the court found that Excessive Fines Clause applies only to federal cases, not state cases.
The U.S. Supreme Court then reversed the Indiana Supreme Court, finding that the all the provisions of the Eighth Amendment are applicable to the states through the 14th Amendment.
Writing the majority opinion of eight justices, Associate Justice Ruth Bader Ginsburg informed the Indiana Supreme Court that:
“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Justice Ginsburg wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.
Excessive Fines Occupy A Dark Corner in The Nation’s History
Ginsburg also pointed out that excessive fines occupy a dark corner in the nation’s history, noting that: “Following the Civil War, Southern states enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad prescriptions on ‘vagrancy’ and other dubious offenses.”
In the wake of the Timbs ruling, Wesley P. Hottot, an attorney with the Institute for Justice that represented Timbs before the high court, told the New York Times:
“People are still going to lose their property without being convicted of a crime, they’re still going to have their property seized. The new thing [with the Timbs ruling] is that they can now say at the end of it all, whether I’m guilty or not, I can argue that it was excessive.”
Asset forfeiture has become a huge profit-making industry for law enforcement—some refer to this industry as “policing for profit.”
Texas Resists Transparency About Forfeiture
In a June 7, 2019 article for the Texas Tribune, writers Jolie McCullough, Acacia Coronado and Chris Essig reported that, “State and local law enforcement agencies bring in about $50 million per year through state asset forfeiture laws, but there is little data on how this powerful tool is used in Texas. Agencies and prosecutors must report their overall profits from seizures to the state, but law enforcement officials have successfully fought legislative proposals that would require them to release data on how much is taken in individual seizures, and how often they are tied to a criminal charge.”
The Tribune examined forfeiture data from 2016 in four Texas counties: Harris, Smith, Reeves, and Webb. The examination included 560 forfeiture cases that involved the seizure of $10 million, 100 vehicles (ranging from a 1982 Chevrolet truck to a 2011 Cadillac Escalade), Rolex watches, gold chains and a 60-inch television. The Tribune examination discovered:
- Half of the cash seizures were for less than $3,000. In Harris and Smith counties, more than two-thirds were under $5,000.
- About two of every five forfeiture cases started with a traffic stop.
- Many cases were connected to possession of small amounts of drugs. In Smith County, a woman’s 2003 Chevrolet Trailblazer was seized after police found half of a gram of suspected methamphetamine and a partially-smoked blunt in the car.
- In nearly 60% of the cases, people didn’t fight their seizures in court at all, resulting in judges turning over the property to local governments by default.
- Two of every 10 cases didn’t result in a related criminal charge against the property owner or possessor; in Webb County, more than half didn’t.
- And in about 40% of the cases, no one who had property taken from them was found guilty of a crime connected to the seizure.
And this situation is sure to get worse.
Each legislative session the Texas law enforcement lobby bullies lawmakers out of any notion of reforming this multi-million-dollar enterprise that certainly has criminalized underpinnings. For example, this lobby has thwarted reforms like having to inform the public about how much is taken in each individual seizure, how often the seizure involves a criminal charge, and requiring a criminal conviction in most cases before a forfeiture can be undertaken.
Law Enforcement Loves Asset Forfeiture
Jackson County Sheriff A.J. Louderback, representing the Sheriffs’ Association of Texas, told a legislative panel in the 2019 session that: “Civil asset forfeiture is a necessity for us on these drug corridors for us to be able to operate. It’s the single most effective tool that we have to fight the cartels in the state of Texas.”
Property rights advocates are not buying the drug cartel line. They are increasingly demanding reforms.
Harris County attorney Jennifer Gaut, who has represented clients in a number of forfeiture cases, told the Tribune that: “One of the things that I think that the district attorney’s office would have people think is that all of these cases involve big drug kingpins. The majority of cases are small dollar amounts and that’s … not the message they try to convey.”
Prosecutors and law enforcement officials in Harris County are some of the most vocal proponents of seizing private property through forfeiture without a criminal conviction. The Tribune found that for every six-figure forfeiture in Harris County, there were nearly “two dozen smaller cash cases”—half of which resulted in less than $3,000.
Gaut said Harris County law enforcement goes after the “low-dollar cases” because they generally do not involve a legal fight by the property owner.
“In a way I think it actually benefits police to seize these smaller dollar amounts because … people can’t find [legal] representation,” she told the Tribune. “So if it’s $4,000, even if we get it all back, I’m going to get like $1,000 for maybe 30 hours of work.”
Angela Beavers is the lead civil forfeiture prosecutor in the Harris County District Attorney’s Office. She leads the Harris County law enforcement effort at the Texas Capitol to block any meaningful reforms to the Texas’s asset forfeiture laws which, in many respects, are today’s modern version of the “Black Codes” of yesteryear. At the past legislative session, she told members of the only panel hearing reform efforts on asset forfeiture that criminal charges were filed in all but 5 percent of the seizure cases in Harris County in 2018.
Rep. Harold Dutton (D-Houston) was not buying it.
“Ma’am, I’m going to tell you as a practicing lawyer in Harris County, I don’t think you’re being honest with this committee,” he said.
What we do agree with Rep. Dutton, there’s too much money involved in the corrupt forfeiture business for honesty.