Civil forfeiture, the process by which the government can seize and take title to property allegedly involved in criminal activity, has become a widespread—and controversial—practice around the country. Some states have enacted laws requiring a criminal conviction before the state can initiate a forfeiture claim, but federal law and the laws of Texas still allow civil forfeiture even when the underlying criminal act does not result in any convictions. A study released in late 2015 by the Institute for Justice (IJ) offers a rather incendiary set of statistics regarding forfeiture by federal law enforcement agencies. It alleges that the Department of Justice (DOJ) and Department of the Treasury (DOT) obtained more property through forfeiture than was stolen by burglars during 2014. While this comparison is far from perfect, it illustrates the scale of forfeiture at the federal level.
Federal law allows the government to bring a civil forfeiture claim to take title to “any property, real or personal…constituting, derived from, or traceable to” various federal criminal offenses. 18 U.S.C. § 981(a)(1). The provisions for civil forfeiture in Texas are similar to the federal statute. A property owner can prevent the forfeiture by appearing at the forfeiture hearing and establishing that the property in question was used “without [their] effective consent,” or was stolen before the commission of the alleged offense. Tex. Code Crim. P. Art. 59.02(h)(1). This often proves difficult, however, since the property owner is not necessarily a required party to a forfeiture proceeding, and therefore is not entitled to notice of the hearing. The names of many forfeiture cases demonstrate this. See, e.g., One 1991 Chevrolet Blazer, et al v. State, 905 S.W.2d 443 (Tex. App.—Amarillo 1995); $18,800 in U.S. Currency, et al v. State, 961 S.W.2d 257 (Tex. App.—Houston [1st Dist.] 1997).
Nothing in federal or state law requires a criminal conviction prior to, or in conjunction with, a civil forfeiture proceeding. The U.S. Supreme Court has even held that an acquittal does not preclude the forfeiture of property related to the alleged offense. United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984). That court and Texas’ highest criminal court have also held that the Double Jeopardy Clause of the Sixth Amendment does not bar a civil forfeiture action after a conviction. United States v. Ursery, 518 U.S. 267 (1996); Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).