Texas has some of the worst civil forfeiture laws in the country. In 2010, the Institute for Justice gave the state a grade of D- in terms of how easy it is for police to take property allegedly linked to criminal activity, and how hard it is for the property owner to get it back. It's not everywhere that a petty thief can get his pickup seized for stealing a few cases of beer.
Past legislative session have yielded reforms that have addressed some of the most egregious abuses. In the wake of cops and prosecutors teaming up to shakedown out-of-town motorists in tiny Tenaha, Texas, for instance, Texas lawmakers decided that cops couldn't have people sign away their property rights on the side of the highway.
Civil liberties advocates are hoping the current session produces more substantial reform. People like Derek Cohen, a researcher at the Texas Public Policy Foundation, would like to see a law passed that would more fundamentally address the Kafkaesque nature of the current system, which lets police seize property fairly freely -- often on tenuous grounds and often from innocent people -- and forces property owners to wage months-long court battles if they hope to get it back.
And Cohen and others think the chances are good. Texas' civil forfeiture law, and the abuses it has given rise to, "represents such a naked affront to the rule of law" that it has earned the scorn of conservatives and liberals alike. What shape that reform might take, however, or whether it might still get torpedoed by cops and prosecutors, is anybody's guess. Here's a look at what's currently on the table:
The Low-Hanging Fruit Perhaps the easiest way to reform civil forfeiture in Texas is to require more transparency. The reporting requirements right now are meager. Every law enforcement agency and district attorney's office in the state is required to file an annual report with the Texas Attorney General's office, reporting how much property they seized and what they did with it. But it's all reported in aggregate, with no explanation of why the property was seized, how many of the cases were tied to criminal charges and/or convictions, how many of the seizures were challenged by property owners, etc.
State Representatives Jeff Leach and Phil Stephenson have both filed bills -- Leach's HB 249 and Stephenson's HB 472 requiring agencies to offer a much more detailed accounting of forfeiture activities. Both would require them to itemize forfeiture cases and say what crime, if any, was brought in connection with it. Leach's would also make the AG's office publish the reports on its website.
The second easiest way to reform civil forfeiture laws is probably to eliminate some of the stupid crimes it can be applied to, like littering. There's nothing currently on the table to correct that, though State Representative Borris Miles' HB 259 would clarify the law to make felony littering, and not just a third offense of misdemeanor littering, grounds for forfeiture.
Sure, why not? State Representative Ana Hernandez's HB 530 would allow forfeiture money to be used to create scholarships for children of cops killed in the line of duty.
The Craig Watkins Clause There are myriad reasons former District Attorney Craig Watkins has been reduced to using a Hotmail account, but two late-breaking scandals last year certainly didn't help his reelection bid. Call them The Case of the Dusty Porsche, in which the DA's office was accused of bullying a tow company for towing its abandoned Porsche from a county lot, and the The Mystery of the Disappearing Car Crash, where Watkins secretly paid off the driver a car he crashed into. Both scandals suggested incompetence or corruption, or some combination thereof, and both scandals were made possible by civil forfeiture funds.
There are restrictions on how prosecutors and police can use their pot of forfeiture money. Generally, it must be used for an "official purpose," though this has sometimes interpreted rather broadly as including booze and margarita machines and trips to Hawaii.
Previous reforms have largely targeted specific abuses (buying booze is now explicitly forbidden), but there will always police and DAs like Watkins, who hew to a loose interpretation of "official purpose." State Representative Jason Villalba's HB 2116 would seek to tamp down on abuse by exposing forfeiture funds to sunlight. His bill, in addition to a blanket prohibition on using forfeiture funds "the direct or indirect benefit of any person," would require all prosecutors and law enforcement agencies to publish detailed reports on their website every quarter; currently they only have to submit an annual report to the attorney general's office that is so vague that it's basically useless as a tool for watchdogging how the money's spent.
Collin County Senator Van Taylor's SB 566 takes a different route to a similar end, requiring cops and prosecutors to spend proceeds "only as proposed in the approved budget" passed by a city council or county commissioners court.
Solid Enough to Piss Off Prosecutors Now for bills that would actually make it incrementally harder for cops to take people's property, which take a couple of forms. The weakest is HB 1975, jointly filed by Republican State Rep. Matt Schaefer and Democratic State Rep. Harold Dutton. It would shift the burden of proof from the state to the property owner. Rather than putting the onus on the property owner to prove that cops shouldn't have seized their stuff, it's the state that has to show the seizure was justified. This is unlikely to change the outcome of most cases, but it will force police and prosecutors to actually present evidence of a crime. Under the current law, they usually get to keep the property by default, since few forfeiture cases are contested by property owners.
Somewhat stronger is a bill being pushed by Leach and State Senator Juan "Chuy" Hinojosa that would raise the burden of proof from a preponderance of the evidence that property is tied to a crime to clear-and-convincing evidence that it was. This is an important legal distinction. Preponderance is the standard used to assign fault in car crash cases and requires that prosecutors establish that property was probably tied to a crime. Clear and convincing is stronger, the standard Child Protective Services has to meet before they take someone's children, though it's still a step below the beyond-a-reasonable-doubt standard of criminal trials.
The Whole Enchilada State Representative David Simpson just doesn't give a fuck. Earlier this week, the East Texas Republican filed a bill to legalize marijuana. Not just small amounts. Not just for medical purposes. Marijuana prohibition would be ended, because "all that God created is good." Now, he wants to abolish civil forfeiture entirely.
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"We're playing games when you have the state of Texas against $1,343 in cash," he says. "Cash is not responsible. People are responsible. Human beings are responsible. What we're doing is we're bypassing convicting them of a crime."
He hasn't filed the bill yet, but he says it's coming. Police would still be able to pursue ill-gotten gains, but it would be through criminal forfeiture, which requires a conviction.
"Our goal is not to do away with forfeiting ill-gotten gains. Our goal is to support due process where a person's property, whether it be cash, their dogs, their car, their house, is not forfeited unless it's after a conviction by a jury of someone's peers and held to the standard of beyond reasonable doubt."
Send your story tips to the author, Eric Nicholson.