AUSTIN, Texas (Nov. 20, 2020) – A bill prefiled in the Texas House for the 2021 legislative session would reform the state’s asset forfeiture laws and prohibit the state from taking a person’s property without a criminal conviction. The proposed law would also opt Texas out of a federal program that allows police to bypass more strict state asset forfeiture laws.

Rep. Senfronia Thompson (D-Houston) filed House Bill 251 (HB251) on Nov. 11. The legislation would reform the state’s asset forfeiture laws to require a conviction before prosecutors could begin forfeiture proceedings in most cases. The bill also includes provisions that would increase protections for property owners involved in the forfeiture process.

HB251 would also address the policing for profit motive inherent in the current forfeiture process. Forfeiture proceeds would be deposited to the county’s general fund after paying any expenses prosecutors and law enforcement agencies incurred during the process. Under the current law, Texas law enforcement agencies can keep 70 to100 percent of forfeiture proceeds.

According to the Institute for Justice, “Texas has terrible civil forfeiture laws” with a low bar for permanently seizing property.

Rep. Terry Canales (D-Edinburg) introduced a bill that would make more modest forms to the forfeiture process. House Bill 132 (HB132) would raise the legal standard required to forfeit property from a “preponderance of evidence” to “clear and convincing evidence,” but would leave the current civil asset forfeiture system in place.

Both HB251 and HB132 include important provisions that would opt Texas out of a federal asset forfeiture program. This is particularly important in light of a  policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies often bypass more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

HB251 would close the loophole with the following language.

A law enforcement agency or an attorney representing the state may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless:

(1) The value of the seized property exceeds $50,000; and (2) the attorney representing the state determines that: (A) the activity giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify the transfer; or (B) the seized property may only be forfeited under federal law.

HB132 has similar provisions.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

NECESSARY

While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?

“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”

Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.

WHAT’S NEXT

HB251 and HB132 will be officially introduced and referred to a committee when the legislature opens the 2021 session on Jan. 12. The bills will have to pass committee by a majority vote before moving forward in th legislative process.

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Source: Tenth Amendment Center Blog