AUSTIN, Texas (March 15, 2023) – A bill introduced in the Texas House would end civil asset forfeiture in the state and replace it with a criminal process. The enactment of this legislation would also take a significant step toward opting the state out of a program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
Rep. Senfronia Thompson (D) introduced House Bill 3758 (HB3758) on March 7. The legislation would replace the state’s civil asset forfeiture process with a criminal process requiring a criminal conviction before prosecutors could proceed with asset forfeiture in most cases.
HB3758 addresses the “policing for profit” motive inherent in the civil asset forfeiture process by requiring counties to deposit all forfeiture proceeds into the county general fund after payment of allowable expenses. Under the current process, law enforcement agencies can keep up to 70 percent of forfeiture proceeds.
The passage of HB3759 would also take a big step toward opting Texas out of a federal program that allows state and local police to get around more strict state asset forfeiture laws. 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) that remains in effect today.
A second bill introduced by Rep. Cole Hefner (HB3659) would make some modest reforms to the state forfeiture process, including raising the evidentiary requirement from “a preponderance of the evidence” to “clear and convincing evidence.” It would also dramatically increase asset forfeiture reporting requirements. This would create transparency and possibly set the stage for further reforms down the road. HB3659 does not address the federal forfeiture program.
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 “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.
A federal program known as “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. Through this process, state or local police hand the forfeiture case to the feds to prosecute even though there was initially no federal involvement in the investigation and seizure. State and local police can also tap into equitable sharing by working with the feds on joint task forces. About 85 percent of equitable sharing cases arise from these joint task forces, but a significant number also begin with adoption.
The 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.
Through the equitable sharing program, law enforcement agencies can circumvent 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.
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.
HB3758 would opt Texas out of equitable sharing with the following language.
A law enforcement agency or attorney representing the state may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency and may not coordinate with the authority or agency regarding seized property unless:
(1) the value of the seized property exceeds $50,000, excluding the value of any controlled substance; and
(2) the attorney representing the state determines that:
(A) the activity giving rise to the applicable 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.
Most forfeitures fall far below the $50,000 threshold.
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.
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.
At the time of this report, HB3758 had not been referred to a committee. Once it receives a committee assignment, it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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