Civil asset forfeiture, often provoking the ire of justice reformers, has long been employed and often abused by many law enforcement agencies. The very notion of taking the property of a person who has not been convicted of a crime contravenes everything for which justice is meant to stand.
To combat the problem, State Sen. Konni Burton (R-Colleyville) has filed legislation to eliminate the practice unless an individual has been convicted of a crime.
Burton’s bill also raises the standard of the evidence required from a “preponderance” or the mere likelihood of something being true to the much higher standard of “clear and convincing” evidence that the person committed the offense.
Aside from a repeal of civil asset forfeiture it covers a wide swath of the other areas that have drawn concern.
One complaint often heard is the standards of reporting for asset forfeiture are low. Under current law, agencies submit annual reports to the attorney general, who then only releases an aggregate report of seizures by agencies and the state’s attorneys.
This bill requires the law enforcement officer – or other seizing agent – to leave an itemized receipt of the property with its owner or in place of where the property was found, if reasonable.
It also requires agencies to annually report key information to the public such as: the total number of currency forfeitures, overall forfeitures, items of property forfeited, the market value of each category of property, and the number of occurrences of each underlying offense.
Even if an agency had no seizures that resulted in forfeitures that year, they would still be required to follow reporting protocol. All forms would be standardized and submitted electronically.
There are numerous stories of forfeited funds and assets being used to decorate offices, buy the occasional margarita machine, or in some states, even allowing prosecutors to live in forfeited homes. This bill would target that conflict of interest.
It also requires seized property that is subject to forfeiture to be auctioned off by the county treasurer rather than given back to the law enforcement agency. Any proceeds from the public auction, as well as any seized currency, will be first used to pay off liens, or related court costs and the rest will be deposited into the county’s general fund.
Law enforcement agencies are strictly prohibited from keeping any property, selling it to employees, or selling it to family members.
Another area that is a major cause for concern is protection for innocent owners and damages.
Many people who have found themselves victims of civil asset forfeiture abuse back down from fighting because the cost to contest the government is more expensive than the property in question.
Under Burton’s legislation, if an individual is deemed innocent, acquitted, or the charges are dismissed, the property must be returned within five days from that judgment, meanwhile the seizing agency responsible for damages, storage fees, and other related costs.
If the person’s property is found subject to forfeiture and the conviction is then reversed, set aside, or vacated on appeal, the defendant can recover any money that was seized or proceeds from the auction of their seized assets.
Also, for innocent owners of property subject to forfeiture, if they show that they have a legal right to the property the state must prove the person had knowledge of the underlying crime in order for the forfeiture to proceed.
From the direct repeal of the unjust practice of civil asset forfeiture, to numerous accountability measures like additional reporting, addressing conflicts of interest, raising the evidentiary standard, and protecting innocent owners, this bill significantly overhauls an area that is in dire need of it.
This tool, when abused, has stripped Texans of their private property, due process, and basic rights and hopefully Burton’s bill will end the practice this session.