Aided by unsolicited publicity from a presidential wisecrack, property rights conservatives in Texas are energized and mobilizing a full-scale campaign to reform or abolish an asset seizure law that they say tramples the rights of ordinary citizens entangled in the criminal justice system.
Sen. Konni Burton, a Republican from Colleyville, is at the forefront of efforts to reform or abolish civil asset forfeitures, which enable law enforcement to seize property in criminal investigations without first obtaining a conviction. Law enforcement groups are rallying to defend the practice as an integral crime-fighting tool.
With its somewhat daunting name, the civil asset forfeiture issue was largely being played out on the legislative sidelines, seemingly with little attention from the general public.
But all that changed last week when President Donald Trump propelled the topic into the national spotlight at a Washington meeting with a group of sheriffs, including Rockwall County Sheriff Harold Eavenson.
After the North Texas sheriff complained about an unnamed Texas senator who is seeking to reform the property seizure law, Trump responded by offering to “destroy” the lawmaker’s career.
The remark — delivered with a smile — was widely dismissed as an impromptu burst of Trumpian humor, but it immediately cast attention on the issue back in Texas as the media and Austin politicos tried unsuccessfully to figure out the target of the verbal jab.
Burton and several other senators pushing legislation to reform civil asset forfeitures all quickly dismissed themselves as the target of Trump’s verbal jab. But, even as the guessing game was still underway, Burton quickly pivoted into a renewed push for her bill, Senate Bill 380, to require convictions before permitting the seizure of assets, a measure that law enforcement leaders said would effectively kill the practice.
“Property rights are one of the foundational rights in any free society and the taking of property by government is no small matter,” Burton said in a statement to “take exception” to Eavenson’s comments on asset forfeiture reform. “Requiring the government to secure a criminal conviction before permanently taking property from citizens is simply commonsense.”
Civil asset forfeitures have long been in the crosshairs of conservative groups and think tanks such as the Texas Public Policy Foundation, Institute for Justice and Freedom Works, who say the practice upends the fundamental right of innocent until proven guilty. The Libertarian Party last week denounced it as “completely unfair and un-American.”
Noting that it sometimes takes years to get a conviction, prosecutors and law enforcement officials say that requiring convictions before seizing property would effectively demolish a crime-fighting weapon that has often been used against organized crime and Mexican drug cartels.
“Asking for a conviction prior would simply do away with the program for all practical purposes,” said Jackson County Sheriff A. J. “Andy” Louderback, legislative director of the Sheriffs’ Association of Texas. “What are we supposed to do to secure assets if there hasn’t been a conviction?”
Sheriff Eavenson, in his conversation with the president, said he told the unnamed Texas senator “that the cartel would build a monument to him in Mexico if he could get that legislation passed.”
Prosecutors are also lobbying to retain the practice. “The civil assets forfeiture (law) allows us to seize the fruits of criminal activity and give the money back to the victims or use the money to fight other criminals,” said Assistant Tarrant County District Attorney Vincent Giardino, a trial prosecutor who also serves as the office’s legislative liaison. “It’s an effective tool.”
There is little debate that property obtained through the seizures, often including cash and cars, provided a dependable revenue source that law enforcement in turn uses to finance its operations and buy equipment.
‘Police for profit’
Critics say the practice can enable law enforcement officers to “police for profit,” but law enforcement organizations counter that anecdotes about abuses are largely outdated “horror stories” that have since been corrected by previous reforms.
A Euless sting investigation described in a special 2014 Star-Telegram report on civil asset forfeitures seized $5.24 million in cash and property. Euless kept $2.44 million, using it to fund a new radio system and additional police officers. The multiyear investigation, dubbed “Operation Cowtown Tobacco,” began when officers discovered thousands of contraband cigarettes and counterfeit tax stamps in a gated community in north Euless. The case ultimately resulted in 11 federal court convictions.
According to the Tarrant County district attorney’s office, money seized from criminal activity and the proceeds of confiscated property sold at auction are reinvested into the criminal justice system for activities such as training, equipment and capital expenditures not covered by the general budget.
The total forfeiture amount allocated among Tarrant County law enforcement organizations in 2016 was approximately $3 million, including $1.1 million to the district attorney’s office, according to Samantha Jordan, the DA’s communications director.
Chapter 59 of the Texas Code of Criminal Procedure allows law enforcement agencies to seize items believed to be used in committing a crime or bought with profits of a crime. Without the same rigid legal restraints under criminal prosecution, civil forfeiture targets the property itself, enabling law enforcement to make seizures regardless of whether the person is arrested or convicted later.
Although the tool was originally touted as a weapon to snare big fish like the drug cartels, critics say it often throws minor offenders, and sometimes innocent citizens, into a kind of statutory limbo.
Once cash or property is taken, the district attorney files a a civil suit against the property itself as being part of the crime, but since the case is civil, property owners who can’t afford an attorney aren’t entitled to a court-appointed lawyer as they could be in criminal proceedings.
Fort Worth attorney Steve Jumes, who specializes in asset forfeiture cases and supports Burton’s bill, said his clients often grapple with the decision on whether to wage a costly legal battle to try to reclaim their confiscated vehicles or cash or just give them up as a lost cause.
“For an old truck, it wouldn’t make financial sense to go pay a lawyer,” said Jumes, who said he has represented 40 to 50 clients over “the past couple of years” and typically gets at least 20 new cases a year.
‘A huge issue’
Burton, a former Tea Party leader who was elected in 2014 and is now in her second legislative session, said the topic is “a huge issue” in her Tarrant County senatorial district.
When she speaks at townhall meetings,” she said, “I can’t tell you how many people walk up to me afterward and say they had their property taken without a criminal conviction and couldn’t get their property back. It’s quite incredible how many anecdotal stories I hear from people I met at events talking about this issue.”
Bill Miller, an Austin consultant and lobbyist, said the Trump episode transformed civil asset forfeitures into a suddenly hot topic. “It didn’t have any visibility until Trump sort of called it out,” Miller said. “Now it sort of went from zero to 100 miles an hour.”
Miller said he doubts that the sudden burst of attention will be sustained, but Matt Mackowiak, another Republican consultant, said that he believes the issue is emerging as the centerpiece of Republicans’ overall push to strengthen property rights protections.
“I think conservatives are motivated about this and that momentum is building,” he said.
The issue also cuts across party lines. Sen. Juan “Chuy” Hinojosa, a Democrat from McAllen, is a co-author of Burton’s bill and is sponsoring separate legislation, SB156, to strengthen the standards for seizing property.
Sen. Joan Huffman, R-Houston, chairwoman of the Senate State Affairs Committee, is also sponsoring a reform measure, SB401, that among other things would require the state to pay court costs and attorney fees if it loses a legal challenge over property ownership.