Texas Forfeiture II

Ameal and Jordan Worked and Saved in Pursuit of their Dream.
Ameal and Jordan have a dream to own and grow a business they can leave to their children. Growing up in rural Natchez, Mississippi, the couple gained an appreciation for hard work, the importance of family, and a love of horses. Together since high school, the couple today lives with their two daughters on the same rural land that Ameal’s father lived on before passing it down to his children over two decades ago. Ameal and Jordan are savers. They knew that one day they could save enough money to start a business.

The couple works hard for the money they earn. Ameal has worked as a self-employed construction worker and trained racing horses. He completed a commercial driving program at a local community college and began driving tractor-trailers too. Jordan supports her family by taking care of the children and working daily shifts as a cashier for a local restaurant.

The family keeps most of their money in cash on their property, just as Ameal’s father did before them. Ameal’s father, who grew up in segregated Mississippi, was always skeptical of banks, and taught Ameal from a young age to always keep his money nearby. Ameal listened. Most of his savings are in cash and for years he’s used vacuum sealers, the sort used to preserve meat, along with some tape, to package and hide money around his property. It has kept his savings secure and safe from the elements. And more than just the elements: A few years ago, thieves robbed the family home, taking valuables but leaving thousands of dollars of cash because it was packaged and hidden.

Ameal’s work in trucking was rewarding, but he dreamed of being like the drivers he met on the road who owned their own trucks. Owner-operators earn a living not only by driving tractor-trailers, but also by providing the tractor-trailer needed to transport cargo. Driving tractor-trailers is one of the largest occupations in the United States. ¹ Over two million Americans work in trucking, and of those over half a million are self-employed. ² This was the business that, by 2019, Ameal and Jordan were on the cusp of making a reality.

Ameal first teamed up with his brother, a commercial truck driver based in Georgia, and on May 1, 2019, they purchased a truck to begin taking on power-only jobs (pulling trailers owned by others). But that was meant to be just the beginning. Ameal wanted to buy a trailer, and if the price was right another tractor that he would base out of Natchez. He had seen several attractive advertisements in trucking magazines for secondhand trailers that fit his specifications for between $3,000 and $9,000. There were also secondhand tractors that didn’t seem too bad for around $25,000 to $35,000. Most of the opportunities for used tractor-trailers seemed to be near Houston, Texas.

On the morning of May 14, 2019, Ameal got into a rental car and put his and Jordan’s life savings in the trunk of the car. It was split into two packages: One sealed package of cash contained enough money to cover the cost of a trailer, and a second had the rest of Ameal and Jordan’s life savings, enough to cover the cost of a used tractor if the price was right. If the price was not right, the plan was to buy only the trailer, and Ameal would get it hauled back to Natchez. Ameal also brought his firearm, a legal weapon he keeps for safety. He began driving.

Ameal Drove with Cash, so Harris County Officers Took It.
Ameal and Jordan’s life savings was taken by Harris County sheriff’s deputies on the side of Interstate-10. Ameal was pulled over in his rental car for allegedly driving too close to a tractor-trailer. Immediately, Ameal was concerned when that was the reason because he did no such thing; he drives tractor-trailers for a living, and he has been carefully trained not get too close to commercial vehicles. For his safety, when the officer arrived at his window, Ameal immediately told him that he had a legal firearm in the car. What followed is all too familiar to victims of civil forfeiture.

The officer asked Ameal to get out of the car and speak with him near his patrol car. One of the first questions the officer asked Ameal was whether he was carrying any cash. Having nothing to hide, Ameal explained that he had cash and was driving to Houston, and that there was nothing illegal in the vehicle. Ameal allowed the officer to search the car, the officer headed straight for the cash—exactly where Ameal said it was, in the trunk. The officer placed the cash on the hood of his patrol car, and asked Ameal to sit in the passenger seat of the patrol car. Through the windshield, Ameal could see the life savings he and Jordan had accumulated. Once the officer got in on the driver’s side, Ameal explained that the money was his, and that over $6,000 of it belonged to Jordan, which the deputy confirmed by calling her. Nevertheless, the officer seized the cash despite not arresting Ameal for any crime, nor finding anything illegal such as drugs.

Ameal was let go but the life savings he and Jordan saved up was gone. The officer let Ameal go without so much as a warning—any concern about following that tractor-trailer too close had evaporated. He never even counted the cash in front of Ameal (and just gave him a card on which the officer wrote “currency seizure”). Ameal was allowed to drive away, with his gun, but with his dream shattered. If Ameal and Jordan can lose their money like this, no one’s property is safe.

Ameal and Jordan’s Life Savings is Now in Harris County’s Forfeiture Machine
The Harris County District Attorney quickly filed a forfeiture case against the cash they seized after pulling Ameal over on Interstate 10. Filing in June 2019, Harris County’s forfeiture unit sued the couple’s money and alleged it was somehow connected to a boilerplate list of seven drug crimes. That case is State of Texas v. Approximately $41,680—notably, the amount is less than the $42,300 Ameal was driving with that day, meaning $620 is missing and unaccounted for. The only evidence offered in support of the forfeiture case is a single affidavit from a law enforcement officer who was not present at the scene. Although the entire forfeiture action rests on this affidavit, it offers very little evidentiary support. It asserts that the money is connected to non-specific drug crimes only because: (1) it was a large amount of money; (2) the money was vacuum packaged and wrapped in tape; (3) Ameal was nervous; (4) some of the money belonged to someone else (Jordan); and (5) sometime after the seizure, a dog allegedly alerted to the presence of narcotics. It concludes “[d]eputies believe that the seized currency was either used in, intended to be used in or the proceeds from the commission of the offenses of illegal activity” (emphasis added).

The final two sentences of Harris County’s affidavit in Ameal’s case mirror the final two sentences in at least seventy-nine different forfeiture cases filed by Harris County. All use the same template, repeat largely identically worded text, and all 79 note a K9 alert took place sometime after the seizure. But the government cannot copy-and-paste its way to probable cause: It needs specific evidence of particular crimes, not boilerplate accusing people of committing “the offenses of illegal activity.”

Harris County has had Ameal and Jordan’s life savings for over two years. During that time, it has made only anemic attempts to serve Ameal to notify him of how he could contest the forfeiture and attempt to reclaim his money. The county has never even tried to serve Jordan, despite having her name and actual knowledge of her ownership claim. Instead, Harris County’s plan seems to have been to run out the clock so that it could keep Ameal and Jordan’s money without giving them their day in court. If enough time passes, the government could eventually keep the cash using a default judgment, a legal maneuver the County uses for the majority of its forfeiture cases, meaning the County gets its money without anyone ever getting a chance to object.

What Ameal Did Was Legal. What Harris County Police and Prosecutors Are Doing Is Not.
Under civil forfeiture, law enforcement agencies may confiscate property such as cash, cars and homes that they merely suspect may be connected to a crime. Civil forfeiture differs greatly from criminal forfeiture. With criminal forfeiture, it is the owner who is on trial, and the property can only be forfeited if the owner has first been convicted of a crime. But with civil forfeiture, the government proceeds against the property directly under the legal fiction that the property somehow acted to assist in the commission of a crime. An officer’s mere suspicion is all it takes.

Because these forfeiture proceedings are civil actions, most constitutional protections afforded criminal defendants do not apply to property owners challenging civil forfeiture. It is not even necessary for the government to prove that the property owner is guilty of a crime. There is no conviction requirement. Officers seize cash, cars, and property without ever arresting anyone.

Texas has some of the worst civil forfeiture laws in the nation, earning a D+ in the Institute for Justice’s comprehensive compilation of civil forfeiture data, Policing for Profit III. Using civil forfeiture, Texas law enforcement can seize personal and real property if they have probable cause to believe it is “contraband.” Contraband is defined broadly as property used to commit or to facilitate a crime; the proceeds of the crime; or property derived from or purchased with proceeds of the crime. And the “probable cause” standard means the law does not even ask whether the property was connected to the crime—just whether it might have been.

But even that understates the problem. Making things worse, Texas law layers on a trifecta of circumstances that invite forfeiture abuse.

First, Texas allows law enforcement agencies to police for profit—to seize and sell property and funnel the proceeds directly into their own budgets, baking in a financial incentive to abuse this power. Those forfeiture proceeds can directly fund the salaries and overtime pay of the very officers and prosecutors empowered to seize and forfeit the cash they financially benefit from. And the profit incentive in Texas is substantial. Police and prosecutors can keep up to 100% of proceeds and even negotiate how they want to split it. ³ In Harris County alone, the amount of money generated by policing for profit using civil forfeiture is astounding. Law enforcement agencies in Harris County spent $7 million in civil forfeiture proceeds just on salaries and overtime from 2018-2020. And beyond taking in large amounts of money, Harris County is far more likely to spend that money on the overtime payments that create this perverse incentive in the first place. Over a third of Harris County’s forfeiture revenue (36%) goes to officer overtime, compared to just 7% for Texas jurisdictions as a whole.

Second, Texas uses a “preponderance of the evidence” standard for determining whether a particular seizure is valid, rather than the “beyond a reasonable doubt” standard for criminal defendants. Not only is the government’s burden of proof only “probable cause” that a crime was committed, it is not even required to prove the underlying facts definitely. If the best the evidence shows is “maybe,” the property owner loses.

Third, Texas places the burden on the innocent owner to prove their own innocence. Unlike criminal courts where people are presumed innocent, civil courts are the venue of choice for civil forfeiture prosecutors because that principle is flipped on its head. The government needs only a mere suspicion. Property owners are forced to prove a negative, that their property is innocent.

Harris County’s forfeitures illustrate exactly what happens when forfeiture laws refuse to hold the government to any real burden of proof. Out of 113 forfeiture cases reviewed, 90 were supported by dog alerts after the fact—not at the scene of the seizure. Those cases repeat the same lines to support the forfeitures, usually including word-for-word copy-pasted language. They indicate that the Harris County District Attorney’s Office is motivated to pursue cash, no matter how flimsy its evidence, and quickly files cases in civil court to keep the cash they seize.

Texas’s Civil Forfeiture Law Requires Constitutional Recalibration
A decade ago, the Institute for Justice challenged Harris County’s civil forfeiture scheme on behalf of Zaher El-Ali, the innocent owner of a 2004 Chevy Silverado pickup truck. In 2004, Ali sold the truck to a man who paid him $500 down and agreed to pay the rest on credit. As with all cars bought on credit, Ali held the title to the car and had the vehicle registered in his name until the driver paid in full. In July 2009, the buyer was arrested for DWI. Because this was his third DWI arrest, the buyer was imprisoned, pled guilty and was sentenced to six years in prison. After the man’s arrest, the truck was seized for civil forfeiture even though Ali owns the vehicle, and even though it is undisputed that Ali is innocent of any crime. The case made it to the Texas Supreme Court’s doorstep, but review was denied. In two opinions, one supporting and one dissenting from the decision to not take up the case, a total of five justices of the Texas Supreme Court signaled an interest in reviewing the constitutionality of modern Texas civil forfeiture practices in a future case. This is that case.

As bad as Texas’s statewide forfeiture laws are, the situation is even worse in Harris County. Harris County has established a clear pattern and practice of fudging and embellishing the facts to meet even the low bar of the preponderance-of-the-evidence standard. The county’s evidence for forfeiture proceedings routinely amounts to nothing more than a boilerplate list of vague accusations and unverified claims of after-the-fact alerts from drug-sniffing dogs once the money is already seized. Frequently the law enforcement officer providing the evidence is signing affidavits despite not even being present at the scene of the seizure, relying entirely on second-hand knowledge. Harris County forfeiture filings reveal a troubling pattern of relying on officer affidavits identical in form, and with troublingly identical substance in the form of stock language apparently copy-and-pasted, and use these to permanently keep seized property.

Over the past decade, members of the Texas Legislature in both parties have filed bills seeking to reform various aspects of Texas’s civil forfeiture laws. Harris County has opposed all of it, and no reforms succeeded. In 2017, Harris County’s prosecutor in charge of the forfeiture unit testified before a committee of the Texas House of Representatives, opposing bi-partisan reforms to Texas’s civil forfeiture laws. The Harris County prosecutor in charge of its forfeiture unit testified that it is only interested in “seizing contraband from criminals, from drug cartels, from criminal enterprises, from human traffickers,” and that “[o]nly 5% of [Harris County’s] cases do not have an underling criminal charge.” IJ’s research shows that this is false Ameal and Jordan’s experience confirms it, and we’re not the only ones who have caught on. At the same hearing, Texas Representative Harold Dutton, a Houston criminal defense lawyer and native of the city’s Fifth Ward neighborhood, rejected the testimony as “flat out wrong” and accused Harris County of lying to elected officials. It is time to bring civil forfeiture back to the Texas Supreme Court.

Legal Claims
The Texas Constitution provides meaningful constitutional protections for property owners and due process. Texas’s forfeiture scheme, and Harris County’s tactics, violate the Texas Constitution and Texas law. This lawsuit asserts six categories of claims.

First, Harris County’s seizure of Ameal and Jordan’s life savings violates Article I, Section 9 of the Texas Constitution. The County needs probable cause to seize property, and the County did not have probable cause to suspect Ameal or Jordan of an offense on which forfeiture could be based. Probable cause to seize money under the Texas Constitution requires more than a large amount of money and an after-the-fact dog alert.

Second, Harris County’s seizure also falls short of what is required to forfeit property under Texas’s forfeiture law because it cannot establish a nexus between the seized cash and any crime. Cash is not a crime. The statutory nexus required for forfeiture under Texas law must have some evidence of drugs for a drug crime. Here there is none.

Third, Texas forfeiture law also contains an innocent owner defense. Ameal and Jordan’s must prove that their cash is innocent. They satisfy that unconstitutional test because Ameal and Jordan are not aware of anything happening, or not happening, that could justify Harris County seizing and forfeiting their life savings. But no one should have to prove their innocence to keep their own property.

Fourth, the Due Process Clause of Article I, Section 19 of the Texas Constitution protects the procedural & substantive due process rights of innocent owners. As explained by then-Texas Supreme Court Justice Willett in 2013, “If the State of Texas wants to ensnare guiltless citizens and seize their homes and other property, it must do so—always—within the bounds of our Constitution.” ⁴ As noted above, Texas’s forfeiture law places on Ameal and Jordan the affirmative burden of proving a negative to keep ownership of their life savings. But the protections of Article I, Section 19 prevent the government from forfeiting a person’s property when that person is not responsible for the act or omission on which seizure and forfeiture are based. The burden must be on the government, and Harris County cannot forfeit Ameal and Jordan’s life savings without proof that the couple was in some way responsible for the crime the County claims justifies the forfeiture.

Fifth, as noted above, the protections under the Due Process Clause of Article I, Section 19 are meaningful. Harris County is policing for profit using civil forfeiture, and that violates the Texas Constitution because state and local governments cannot seize or forfeit a person’s property when, as here, the seizing agency keeps the proceeds for its own benefit. The Harris County Sheriff’s Office and Harris County District Attorney’s Office receive forfeiture proceeds under Tex. Code Crim. Proc. § 59.06(c), benefit financially from seizures and forfeitures generally, and they would benefit financially from continued seizure and forfeiture of the money in this case. That perverse profit incentive violates the Texas Constitution.

Sixth, Harris County’s failure to satisfy the constitutional requirement of notice and a prompt post-seizure hearing also violates Article I, Section 19 of the Texas Constitution. Harris County failed to make reasonable and diligent efforts to serve Ameal with notice of the filing of the Petition in June 2019, and for Jordan it made zero attempts whatsoever. The County’s forfeiture prosecutor asked for the appointment of a guardian ad litem to represent Ameal Woods without his knowledge or consent; and by these and other means, Harris County nearly won a forfeiture of Ameal and Jordan’s entire life savings using a default judgment. The couple was also denied procedural due process because they had no means of obtaining an interim hearing before a neutral magistrate (between May 2019 and today), and therefore no opportunity to challenge whether the seizure and continued detention of their property was supported by probable cause.

Litigation Team
Institute for Justice Senior Attorney Wesley Hottot, Managing Attorney Arif Panju, and IJ Law & Liberty Fellow James Knight represent Ameal Woods and Jordan Davis.

The Institute for Justice
Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s leading advocate for private property rights. For over thirty years, IJ has litigated in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty and educational choice. IJ has successfully challenged civil forfeiture schemes in other cities and states. In 2018, IJ obtained a settlement in a class-action challenge to Philadelphia’s forfeiture machine that resulted in the dismantling of the city’s unconstitutional forfeiture system. IJ also won a unanimous decision from the United States Supreme Court in 2019, ensuring that the Excessive Fines Clause of the Eighth Amendment applies in forfeiture proceedings. ⁵