We previously reported on the transparency and reporting reforms that were discussed at the Texas House Committee on Criminal Jurisprudence hearing. The second area that received a lot of attention during the hearing was enforcement authority and auditing.
Legal enforcement authority for auditing asset forfeitures lies with the Office of Attorney General (OAG) while investigative authority is the responsibility of the State Auditor. If the OAG is called in it is to collect a civil penalty when asset forfeiture funds and property are not being handled in the proper manner. But the OAG is only legally obligated to get involved in a case at the request of the State Auditor if, following an investigation, they deem it worthy.
According to Ken Richardson, an Assistant Attorney General with the OAG, the State Auditor has never made such a request. The only time the OAG has been called in when was when there has been a conflict of interest between the local District Attorney’s office and the person being investigated.
The OAG also confirms there is no actual requirement to audit at all. According to Richardson, there were roughly 575 entities that didn’t even submit an asset forfeiture report in 2015. Because the 2,700 forfeiture reports sent in annually to the OAG by individual agencies go largely unchecked, and because so much of the information is effectively meaningless, it’s hard to identify potential abuses worthy of an investigation.
The legislature needs to require the State Auditor to perform annual randomized audits of forfeiture reports to determine consistency and adherence to procedure. Also, if the OAG is the entity receiving and compiling the reports, the law should require them to investigate suspicious activity in-house if they see a red flag. Simply put, the agency that is receiving reports should have the power to audit those reports, their action should not be determined by an outside agency.
Without auditing as a quality control and legal enforcement given to the OAG, the asset forfeiture tool is effectively welcoming abuse.