Reform of forfeiture laws getting bipartisan support

AUSTIN — It’s not every day that polarized lawmakers cross the aisle, but Republicans may be finding common cause with Democrats in a bid to rewrite the state’s forfeiture laws.

The issue made national news last week President Donald Trump, in a conversation with Rockwall County Sheriff  Harold Eavenson, joked about destroying the career of an unnamed Texas state senator who wanted to toughen standards for taking private property.

At a Wednesday press conference, Sens. Konni Burton, R-Colleyville, and Juan “Chuy” Hinojosa, D-McAllen, co-authors of a proposal to reform the  forfeiture laws, said the time for change has arrived.

“It’s really unbecoming for our law enforcement to be policing for profit. We should not ask them to be out there, looking for money to pay for equipment,” said Hinojosa, who has said he doesn’t put much stock in Trump’s comments.

Their proposal is one of several that would, in one way or another, curb the controversial system that critics say enables police to seize property without due process.

Texas’ civil forfeiture laws allow law enforcement agencies to take cars, cash, property and equipment believed to be used in a crime — even before someone is convicted. Under the law, the owner must prove in court that the property was not illegally used in order to reclaim it.

That creates a “perverse incentive” for law enforcement to seize property, said Jennifer Laurin, a University of Texas School of Law professor.

“Texas has one of the most permissive schemes for civil asset forfeiture in the nation,” she said. “It allows for assets to be seized without the finding of a criminal conviction and held forever, regardless of whether anybody is convicted of a crime.”

Burton and Hinojosa’s bill would require a criminal conviction prior to forfeiture. It would exempt properties such as homesteads and adds other safeguards such as protection for innocent property owners.

Jackson County Sheriff A.J. “Andy” Louderback said abolishing the civil forfeiture law and requiring a criminal conviction would negate the value of the process.

“We’ve got to keep it,” said Louderback, who is legislative affairs director for the Sheriffs’ Association of Texas. “Its the most effective tool we have to combat transnational drug trafficking organizations.”

Eavenson agreed the overturning the law  “would not only hurt law enforcement, it would help the cartel.”

But it’s not always a cartel that’s caught up in civil asset forfeiture.

“Say for example, your kid is smoking marijuana in your car. They could take your car because it was used in a drug crime,” said Derek Cohen, deputy director at the Texas Public Policy Foundation’s Center for Effective Justice.

The state’s civil asset forfeiture law dates to 1989, when nearly two-thirds of Americans said drug abuse was the country’s “number-one problem,” according to the Drug Policy Alliance.

Laurin acknowledges that quickly depriving criminals of ill-gotten gains is a legitimate use of forfeiture.

But there have been abuses.

She pointed to the East Texas town of Tenaha, where from 2006 to 2008, officers seized cash and other property from about 1,000 motorists, many of whom were Hispanic or black. Officers kept the money under civil forfeiture statutes.

During the same period in Tenaha, under a drug interdiction program, police took $3 million from 140 or more people, according to the American Civil Liberties Union. None of its clients were charged with a crime after being shaken down, it reported.

Melissa Hamilton, a visiting scholar at the University of Houston Law Center, said people who are pulled over are “often scared” and don’t try to regain property confiscated by officers who might believe it was connected to a crime.

That’s because the cost of hiring an attorney might outweigh the value of a seized car, for example, particularly if someone is from another state or doesn’t understand the procedure involved in fighting civil asset forfeiture.

Matt Simpson, a senior policy strategist for the American Civil Liberties Union, said that simply carrying a large amount of cash is sometimes viewed as an indicator criminal activity.

While “nobody on earth” would argue with taking away drug dealers’ assets, he said, “the practice is another thing.”

He said the the Burton/Hinojosa bill calls for a “better standard” for forfeiture.

Cohen, of the conservative Texas Public Policy Foundation, also wants to move civil asset forfeiture towards a system that strengthens due process.

A recent report he authored showed 88 percent of Texans oppose the current use of a system that, he wrote, is a “quick fix to help fund prosecuting attorneys and law enforcement outside of the rightful appropriations process.”

John Austin covers the Texas Statehouse for CNHI’s newspapers and websites. Reach him at jaustin@cnhi.com<mailto:jaustin@cnhi.com>