We all have that picture of a corrupt cop in our minds, taking cash from drivers he’s pulled over in exchange for not getting a ticket or arrested. But in Texas, law enforcement officers are doing just that—except that it’s not corrupt. In fact, it’s completely legal. This article in Forbes online scrutinizes the practice, called civil forfeiture, and under it, property can be forfeited “even if its owner has never been charged with a crime.” Cops come in, take your stuff, and leave. Because of the complex laws on the books, accused parties don’t have the guarantee to counsel, and San Antonio attorneys are finding this out in the new cases being brought against the state by residents who want to get their belongings back.
One Texas Supreme Court Justice compared these types of cases to “Alice in Wonderland and the works of Franz Kafka,” and no, they don’t make any sense to us either. Civil forfeiture cases may be little-known, but are used powerfully in Texas as income for law enforcement departments. San Antonio attorneys like Micah F. McBride coming across a recent series of investigations are often surprised at the percentage of income police departments see as a result of civil forfeiture. Tarrant County’s District Attorney’s office, for example, seized $3.5 million in goods—about 10 percent of its budget. Their narcotics unit spent $426,058 of the $666,427 seized on department salaries.
Civil forfeiture cases can be almost as baffling to Tarrant County lawyers and San Antonio attorneys as they are to us, and we’re only just hearing about them. When the police seize property, for example, “the government sues the property, not its owner,” which is a hard concept to grasp in and of itself. And the cost of defense in civil forfeiture cases can make actually hiring representation out of the question for a lot of people: “litigating complicated civil forfeiture cases can cost anywhere from $25,000 to over $100,000.”
Another issue that isn’t normal in these cases, say San Antonio attorneys like Stevenson, is that the burden of proof is reversed for civil forfeiture cases in Texas. Guilty until proven innocent, property owners are the ones who bear the burden of proof in these civil proceedings. Plus, the state only has to show “a preponderance of evidence” that someone’s property is related to a crime—a much lower standard than the criminal “beyond a reasonable doubt.” The state wins a lot of these cases by default judgment.
The Forbes article linked above provides some “shoulds” for Texas lawmakers, because there’s something not quite right about this practice that’s pretty unsettling for anyone who’s not law enforcement. Removing the stipulation that police can keep 90 percent of cash and value of seized property and directing it to go to charitable institutions, for example, might reduce the incentive to take someone else’s stuff (knowing you can’t keep it). Other suggestions included letting the government bear the burden of proof and change the process from a civil matter to a criminal conviction. It looks like under civil forfeiture law in Texas, nothing is certain, but it’s certainly not just that someone would have to choose between giving up their clean criminal record or their cash and cars.