Yes, Texas Police Can Take Your Possessions
How civil asset forfeiture worksBy Lindsay Kramer | Reviewed by Canaan Suitt, J.D. | Last updated on May 1, 2023 Featuring practical insights from contributing attorney Frank Sellers
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Civil asset forfeiture refers to the right of law enforcement officers to take property from citizens if they suspect it is somehow connected to criminal activity.
For example, they may seize a weapon that was allegedly used in a robbery or a vehicle that might have been purchased with money earned through the sale of illegal drugs.
Initially, civil asset forfeiture was developed to combat organized crime, but, today, it is used by many police departments as a way to generate revenue.
When and How is Civil Asset Forfeiture Used?
Civil asset forfeiture, as its name implies, is a civil action, rather than a criminal one. Because of this, individuals whose assets are seized have different rights than individuals facing criminal charges. When an asset is seized, the object itself is considered to be guilty.
You do not have to be charged with a crime to have your property taken through an act of civil asset forfeiture. Police officers need merely suspect it was connected to one. Police don’t need a search warrant or court order, nor demonstrate probable cause that an item is connected to criminal activity.
In Texas, all an officer needs to take an asset through civil asset forfeiture is to prove that it meets the preponderance of evidence, which means that there is at least a 50 percent chance that the officer’s allegation is true.
“The leading case in Texas right now is One Lincoln Navigator, and you can guess what they took,” says Frank Sellers, a criminal defense attorney at Westfall Sellers in Fort Worth. “The traffic stop was bad, the search was bad, the criminal case was thrown out, evidence was suppressed, but the Texas Supreme Court held that, even if the stop was illegal, that is not necessarily grounds to bar a forfeiture. Except in limited circumstances, the exclusionary rule does not apply to civil cases.”
Assets can be seized from their owners in a variety of ways:
- Traffic stops
- Real estate seizures
- Seizure of firearms
- Seizure of funds in bank accounts
What Can I Do if My Assets are Seized?
Attempting to recover your seized property can be difficult, but there are several possible defenses, Sellers says.
“There are some cases that say, very pointedly, that the law abhors forfeiture. It does not favor taking citizens’ property away from them, so there are some strict timelines that the state has to comply with if they want to take your property,” Sellers says.
“They have 30 days from the date that the property was seized to file a notice of seizure and intended forfeiture. If they’re outside of that timeline, the remedy is that they don’t get to move to forfeit it. They can try, but there’s a defense to that.”
Just because the police seize someone’s property doesn’t mean they own it. “They have to go through the whole process and, until a judgment is assigned, the state isn’t entitled to your property,” he adds. Typically you have about 20 days to respond to the notice of seizure, and it is imperative that you do so.
Another defense, which has been upheld by both the Texas and U.S. Supreme Court, is the excessive fines and punishment clause of the Eighth Amendment. “The maximum fine for most first-degree felonies is $10,000. When you see a brand new car in a drug arrest, the court has said if it’s over and above the maximum fine, it can qualify as an excessive punishment,” Sellers says.
Proving that you are an innocent owner is the most common defense. “Parent buys a car for a kid; kid goes to Colorado with some friends; on the way back gets pulled over for going 72 in a 70, and lo and behold, there’s a dozen weed cookies they bought in downtown Denver. They seize the car as contraband because it’s transporting the drugs. The parents can intervene and say, ‘Wait. We own the car and are innocent owners. We didn’t know that was going to happen,’” Sellers says.
Unfortunately, Sellers attests, these forfeitures happen quite frequently and far too many go unchallenged. “You don’t find many criminal lawyers who get down into the details of a civil case, and you don’t find many civil lawyers who want to step over to the criminal world,” he says. Yet, his biggest advice is to do exactly that: find a lawyer experienced with forfeiture laws.
“You definitely need to reach out to someone who knows what they’re doing because if you miss the answer deadline, you could be out of luck.”
For more information on this area of law, see our overview of criminal defense.
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