Civil Forfeiture Laws Cost Many Unsuspecting Texans

Dallas—A25-year-old woman from Chicago was waiting at Dallas Love Field during layover on Dec. 2 when Ballentine, a canine with the Dallas Police Department, alerted his handlers to contraband in the woman’s suitcase.

After a quick search, officers found $106,829 in her luggage. Since the officers suspected the money was involved in a drug transaction, the department seized the funds under Texas civil asset forfeiture laws.

Dallas Police issued the following statement about the seizure:

“The individual was not arrested or charged at this time. However, the money was seized and will be subject to the civil asset forfeiture process.Due to the nature of this seizure as well as where it occurred, it will be subject to follow-up investigation with our federal partners.”

Under current Texas law, seizures of this nature are civil matters. The property is charged with involvement in a crime instead of the owner as would be the case were this a criminal matter. Since the owner is not the party being charged, there is no burden of proof on thepoliceto substantiate their claims.

Gabriella McDonald is the pro bono and new projects director for Texas Appleseed, an Austin-based non-profit public interest justice center. Making Texans aware of unjustlaws and helping those already affected by them is a top priority for Texas Appleseed.

“There are a number of issues with the law,” McDonald said. “There is the vagueness. Oftentimes, the way this comes about is some sort of traveling like the case in Dallas.

“One of the examples that comes up often is a guy leaving Louisiana who had gambled at a casino, won some money, was traveling from East Texas to West Texas. He was driving in the left lane for too long, so a police officer stops [the driver] and asks if he has money on him. He does have money, because he just won in the casino. They take the money assuming it was enough to be involved in some sort of drug deal.”

In this case, to recover their seized funds, the individual would have to travel back to the county where theseizure occurred. Since this is a civil manner, andthe property is charged instead of the owner, the owner maybeunable to hire an attorney to assist them in retrieving the funds.

Instead, the burden of proof is on the individual to show the money was not gained by illicit means. In this case, that would likely entail the individual showing documentation of their winnings from the casino to the prosecutor, which could result in their funds being returned.

However, in many cases,the costs associated with returning to where the property was seized outweigh the benefit of retrieving the property, so these cases end up in default. The law enforcement agency that seized the property gets to keep it and becomes entitled to apercentage of the proceeds from sale of the property.

Very few Texans outside of those who have been personally affected are aware of these laws. Educating the citizenry about these lawsis a responsibility organizations like the American Civil Liberties Union, Institute for Justice, Texas Public Policy Foundation, and Texas Appleseed take quite seriously.

“A lot more people are becoming aware of it, because of news stories like the one in Dallas,” McDonald said. “But I don’t think a lot of people are aware of it until it happens to them.Then they go,‘Wait a minute, they can just take my stuff and not charge me with anything? That’s wild.’

“Knowledge is half the battle. If you know your rights, you have the potential to write to a prosecutor and say this is what happened.This is why they took my stuff, but I did not do anything wrong, so please give it back. People don’t know they can write to the prosecutor and get their stuff back as long as they have something to show that prosecutor.”

Texas Appleseed’s advocacy efforts working toshift the state’s current asset forfeiture laws from civil to criminal. The organization also wants these laws more clearly defined and uniformly enforced.

Were these laws criminal in nature, agencies would not stop seizing a citizen’s property, but agencies would be prohibited from seizing assetswhen no crime is involved.

Civil asset forfeiture reform was a big subject during the last session of the Texas Legislature. House Bill 251 proposed closing the equitable sharing loophole. Equitable sharing is an arrangement where local agencies can partner with the federal government to seize property and the local agency gets to keep 80 percent of the proceeds from sale of the property.

House Bill 232 limited equitable sharing participation to property exceeding $50,000 in value. House Bill 1441, a bill which was killed, proposed altering the innocent owner defense to put the burden of proof on the owner to prove their innocence before property is taken instead of on the state to prove the owner is guilty of illegal activity, making their property subject to seizure.

As Texas continues to grow at an amazing rate, more of these cases are sure to pop up. Texans need to be aware of these laws and the reform efforts taking place.