Asset Forfeiture Reform BillPublished: Jan 05, 2017 in Criminal Defense
Asset forfeiture is the legal mechanism by which law enforcement agencies seize property they allege to be involved in criminal activity. Texas is considered to have some of the weakest protections when it comes to asset forfeiture and currently leads the nation in forfeited proceeds, at approximately $41.6 billion. In hopes of remedying this situation, Senator Juan “Chuy” Hinojosa pre-filed a bill that aims to increase the protections for property owners in Texas by raising the state’s burden of proof in certain asset forfeiture proceedings.
Asset Forfeiture in Texas
Chapter 59 of the Texas Code of Criminal Procedure governs the process for the seizure and forfeiture of assets. Texas law authorizes law enforcement to seize any property that is deemed to be contraband. Under the statute, contraband is defined as any kind of property, including real, personal, tangible, or intangible, that is used in the commission of certain crimes. This can consist of anything from cash to vehicles.
Once law enforcement seizes the contraband, the property owner does have the right to contest the asset forfeiture in a civil proceeding. It may be possible to avoid forfeiture by asserting what’s known as the “Innocent Owner Defense.” However, you have the burden of establishing that you did not know and or had reason to know of the crime, or you acquired the property after the crime and before seizure without any actual or constructive knowledge that it was contraband.
In asset forfeiture proceedings, the case is against the asset, not the property’s rightful owner. Because these are civil, and not criminal proceedings, the prosecutor does not have to meet the standard of proof beyond a reasonable doubt. The burden of proof in forfeiture proceedings is a preponderance of the evidence, which means it is more likely than not that the asset is contraband. There is no requirement that a seizure be accompanied by a criminal conviction.
What Will Happen If Senate Bill 156 Passes?
If Senate Bill 156 passes during the 85th Legislature, it would heighten the burden of proof in asset forfeiture proceedings from a preponderance of the evidence to clear and convincing evidence. The bill would also prohibit equitable sharing, which is a program by which the proceeds of liquidated seized are shared among state and federal agencies unless the value of seized property exceeds $50,000 (excluding the value of controlled substances).
Under the proposal, state law enforcement agencies and the Texas National Guard would be prohibited from participating in asset forfeiture proceedings brought by the federal government unless they are acting in a military role or the value of seized property exceeds $50,000.
How Houston Criminal Lawyer Ned Barnett Can Help with Asset Forfeiture
In Texas, up to 70 percent of forfeiture proceedings go to law enforcement and many police departments see it as a necessary supplement to their budgets. Texas lacks many of the necessary safeguards to prevent civil asset forfeiture abuse. Although civil asset forfeiture is intended to keep the proceeds of illegal activity out of criminals’ hands, some law enforcement agencies simply see it as a means of profit.
If your property has been unfairly seized by law enforcement, contact Houston criminal defense lawyer Ned Barnett right away to learn more about your options. Attorney Ned Barnett understands how distressing it can be to have law enforcement seize your property. With nearly 30 years of practical legal experience, he can help explain your legal rights and will aggressively fight to get your property back.