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).
A report released by the IJ in late 2015 found a major upward trend in the amount of assets seized and held by the DOJ and DOT. The two departments’ asset forfeiture funds totaled a little over $500 million in 2004, and they had grown to almost $4.5 billion by 2014. The DOJ noted, however, that several large cases accounted for much of the increase, including the $1.7 billion judgment against Bernie Madoff.
The IJ report also states that the total amount held by the DOJ and DOT in 2014 exceeded the amount lost to burglary that year, based on FBI statistics. That figure is somewhat misleading, as the IJ notes, since burglary is not the only property crime tracked by the FBI. When other larceny- and theft-related offenses are included, the total cost of property crime in 2014 was around $12.3 billion.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
For over 20 years, board-certified criminal defense attorney Michael J. Brown has advocated for the rights of people facing criminal charges in west Texas state and federal courts. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a member of our team.
More Blog Posts:
State Laws, Federal Policy Changes Offer Some Good News on Asset Forfeiture, Texas Criminal Lawyer Blog, May 23, 2015
Federal Judge Grants Default Judgment in Forfeiture Action for Money that Allegedly Smelled Like Marijuana, Texas Criminal Lawyer Blog, September 23, 2014
New State (Not Texas) Requires a Criminal Conviction in Civil Forfeiture Cases, Texas Criminal Lawyer Blog, August 8, 2014