AUSTIN, Texas (Nov. 26, 2024) – A bill filed in the Texas House would repeal the state’s civil asset forfeiture law, and take a step toward opting the state out of the federal “equitable sharing” forfeiture program as well.
Rep. Senfornia Thompson filed House Bill 914 (HB914). The legislation would replace the state’s civil asset forfeiture process with a criminal procedure requiring a conviction before the state could permanently seize property. Under the current process, the state can take a person’s property through the civil process even if they were never convicted of a crime.
HB914 would also address the “policing for profit” motive inherent in the civil process by requiring all forfeiture proceeds left after expenses to be deposited in the county’s general fund. Under the current process, law enforcement agencies can keep up to 70 percent of forfeiture proceeds in uncontested cases and up to 100 percent in contested cases.
FEDERAL LOOPHOLE
HB914 would take the first step toward closing a federal loophole that facilitates and encourages state and local law enforcement agencies to partner with the feds, doing an end-run around more stringent state limits on forfeiture.
A federal civil asset forfeiture program known as “Equitable Sharing” allows prosecutors to bypass a more restrictive state forfeiture process by passing cases off to the federal government through a process known as “adoption.”
Under these arrangements, state or local police investigate a case on their own and then simply hand it over to a federal agency for prosecution. Even though the feds initially didn’t participate in the investigation, they handle the prosecution under federal law – and then give up to 80 percent of the take to the state law enforcement agency that helped them out.
This allows state and local police to cash in on asset forfeiture even if state law prohibits it.
The following provisions in HB914 would limit adoption in Texas.
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 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.
It’s difficult to say exactly how many cases would be eligible for transfer with that $50,000 threshold because only 21 states report forfeiture data. But based on analysis by the Institute for Justice, the vast majority of cases fall below that amount.
The median currency forfeiture averages just $1,276 across the 21 states with available data. Minnesota has the most transparent reporting. According to an IJ lawyer, only seven of 3,873 cases reported in 2023 included proceeds above $50K.
Although HB914 would significantly limit adoption, the federal forfeiture loophole would still remain wide open and completely unrestricted if the seizure was by a state-federal joint task force or pursuant to a joint investigation with federal law enforcement authorities. These generally account for about 85 percent of federal forfeiture cases.
In effect, the passage of the law would significantly impact about 15 percent of equitable sharing cases, a good starting point. However, supporters of the effort should be ready to put forth follow-up legislation to address the joint task force loophole if they are unable to convince the legislature to expand the current bill this year.
NECESSARY
While some people believe the Supreme Court “ended” asset forfeiture, its opinion in Timbs v. Indiana ended nothing. The court merely held that the Eighth Amendment provisions prohibiting “expressive fines” apply to the state through the incorporation doctrine.
Without further action, state and federal law enforcement can still use the civil asset forfeiture process with few limits. 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.”
Somin has been proved correct. Six years later, the SCOTUS decision still hasn’t limited asset forfeiture.
The passage of legislation that specifically limits or completely ends state participation in equitable sharing takes concrete steps toward ending it instead of waiting for more court cases.
WHAT’S NEXT
HB914 will be assigned to House committees when the 2025 legislative session begins on Jan. 14.
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