Can the Texas Legislature Finally Reform Civil Forfeiture?
Illustration by 355A
Before the 85th Texas Legislative Session formally opened on Tuesday, state lawmakers had already filed a handful of bills that would curb or strike down the law enforcement practice known as civil forfeiture, which allows law enforcement officials to seize assets from those suspected, not charged or convicted, of involvement in criminal activity.
Konni Burton, R-Colleyville, has her name on the most comprehensive of the lot. Senate Bill 380 was pre-filed on Dec. 20 and would reform asset forfeiture laws to prohibit the state of Texas from taking an individual's property without a criminal conviction, in most cases.
Texas' modern civil forfeiture law passed in 1989 as a weapon in the war on drugs and allows law enforcement to side-step due process by bringing legal action against inanimate objects, and thus, taking them away from someone who is probably/maybe a criminal. It's the legal phenomenon that has given rise to civil cases with names like State of Texas vs. One 2005 Chevrolet Pickup, State of Texas vs. 12 Gold Coins and United States of America vs. One Tyrannosaurus Bataar Skeleton.
Burton's bill aims to make sure the possessors of that property, or cash in many cases, are actually criminals and the property related to actual crime before the cops have the right to seize it. It's a concept that analysts at the state and national level say is gaining steam among folks from all political walks, but you wouldn't know it to look at Texas' last legislative session.
Both Burton in the state Senate (SB 1683) and former state Rep. David Simpson, R-Longview, submitted similar bills last session that did not make it out of committee.
"The legislation we've seen filed already [for the 2017 Texas legislative session] points to a general consensus across the entire political spectrum, realizing this is an issue that needs fixing," said Derek Cohen, a policy analyst for the Texas Public Policy Foundation. He told the Observer for a 2015 story on the same subject that such seizures lie "somewhere between good people reacting to bad incentives and the Sheriff of Nottingham shaking you down."
Predictably, opposition to such bills comes mainly from law enforcement agencies that seize cash and stand to gain from the sale of seized property. Burton's SB 380 would also prohibit state and local law enforcement agencies from directly receiving proceeds from forfeited property, working against what stands now as a perceived incentive for officers and agents to "police for profit" under the current law.
Under SB 380, proceeds from seizures would go to the county treasurer.
The Institute for Justice, a Virginia-based nonprofit group that pushes for criminal justice reform, gives Texas a D+ for its civil forfeiture laws. From 2001 to 2013, numbers from the Institute's public information requests say Texas law enforcement agencies took in an average of $41.5 million per year through civil forfeiture.
Despite the opposition, Cohen said Burton's bill has a good shot to make it through the always-choppy waters of the Texas Legislature and get passed into law this time around. Public education on the subject in recent years has been key to amplifying the voices calling for reform.
"One of the issues with perpetuation of civil forfeiture is simply that not many people know about it or are able to parse out what it really means," Cohen said.
If Texas moves forward on this issue in 2017, it would be following the lead of New Mexico, Nebraska and more recently California, which have all either banned outright or severely limited the practice. Seventeen states have in recent years passed some measure of civil asset forfeiture reform.
"If Texas is like a lot of other places, you're going to get heavy public support for measures like these, with the law enforcement lobby being the main voice against reform," said Mike Maharrey, national communications director for the Tenth Amendment Center, a think tank that pushes for limiting government power. "They'll cry about blood running in the streets and an inability to fund their operations without it. Civil forfeiture is definitely a well-defended piece of turf that law enforcement holds where it's able to."
Targeting Civil Forfeiture
The following were filed before 85th legislative session
HB 155, Rep. Matt Schaefer, R-Tyler — would place the burden of proof on the state, rather than on those from whom assets are seized, in civil forfeiture cases
HB 344, Rep. Terry Canales, D-Edinburgh — also moves the burden of proof to the state, but would require "clear and convincing evidence" from the state's attorney rather than just a "preponderance of evidence"
HB 348, Rep. Terry Canales, D-Edinburgh — targets instances when law enforcement seizes drugs or money inside a car or home, and then seizes that car or home as well
SB 156, Sen. Chuy Hinojosa, D-McAllen — similar to Canales' HB 344, but also prohibits "equitable sharing," or transfer of seized assets between federal and state agencies, unless the property exceeds $50,000 (also a provision in Burton's SB 380)
SB 401, Sen. Joan Huffman, R-Houston — Huffman is the vice chair on the senate's criminal justice committee; her bill is similar to but not as far-reaching as Burton's SB 380 in that it requires law enforcement to get a warrant within 48 hours of seizure of property instead of the criminal conviction requirement
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