Asset forfeiture bills in Texas Legislature

Jon Roland

A few years ago most legal reformers despaired that anything would ever be done to reform the corrupt system of civil asset forfeiture. A few bills were introduced by single legislators, but today, in Texas, we have multiple bills, most coupled with identical bills in the House and Senate, which can be found here. One pair is of special notice,

S.B. No. 1863, by Burton
H.B. No. 3171, by Simpson

These bills go a long way to remedy many of the civil forfeiture abuses, but they need some amendments to provide that:

1. Forfeiture only be done to pay specific fines imposed as part of the sentencing order, upon conviction of a crime for which a fine may be imposed, with the standard of proof for the forfeiture being "clear and compelling" evidence that the assets are, or are derived from, the proceeds of of the crime for which the defendant was convicted, not other crimes he is suspected of committing.
2. Not only are the net proceeds of forfeiture not to go to state agencies or personnel, except through appropriation from the general fund, but such agencies or personnel are not to receive or accept any awards for forfeiture done by the federal government, or other government.
3. Make the seizure and conversion of assets for the use of a state agency, or personal use of agency personnel, especially without adequate documentation, or acceptance of an award from another government, a felony for the personnel, punishable by termination and not less than two, and up to ten, years in prison and a fine equal to twenty times the value of the improperly seized and converted assets, paid first by the personnel, then, if they are unable to pay, by the agency, and provide that prosecution of such offenses may be conducted by special prosecutors who may be private parties appointed by the grand jury; further, that twenty times the value of any asset improperly converted, plus legal costs, be paid to the presumptive owner or owners in addition to return of the assets.

(1) is intended to correct the common abuse of forfeiture done by judges too closely associated with prosecutors or law enforcement agencies. It subjects the assessment of the fine to the control of the same jury who convicts the offender.
(2) is intended to correct the common abuse of state agencies turning over cases to federal enforcement but getting an award paid from the proceeds of the forfeiture. That would allow state agencies to evade this law and get large sums of money indirectly.
(3) is intended to impose real disincentive penalties on state personnel or agencies for violation of the property rights of owners.