Forfeiture Abuse Gets Rubber-Stamped by Texas Appellate Court

J. Justin Wilson
J. Justin Wilson · December 4, 2012

Houston, Texas—Today, the 14th Court of Appeals in Houston ruled that the government may constitutionally place the burden on property owners to prove their innocence when their property is taken through the state’s draconian civil forfeiture laws. The Institute for Justice plans to petition the Texas Supreme Court to review the appellate court’s decision.

“Civil forfeiture threatens the property rights of all Texans,” said Scott Bullock, senior attorney with the Institute for Justice and lead attorney on the case. “The last time the Texas Supreme Court looked at this issue over half a century ago civil forfeiture was a rarely invoked power. Today, it is a multi-million-dollar industry where innocent property owners can lose their homes, trucks, cash, and other property without ever being charged let alone convicted of a crime. Now is the time for the Texas Supreme Court to restore protections for private property rights,” he added.

Civil forfeiture permits law enforcement to charge property with a crime. Unlike criminal forfeiture, where property is taken away only after its owner has been found guilty in a court of law, with civil forfeiture owners need not be convicted or even accused of any crime to lose their homes, land, trucks, boats or cash. Moreover, under civil forfeiture, the traditional burden in criminal cases—where the government must demonstrate guilt—is flipped to property owners.

In upholding this burden-shifting to property owners, the appeals court relied on a 55-year-old decision by the Texas Supreme Court, State v. Richards, which held that constitutional protections do not extend to innocent property owners in civil forfeiture proceedings. Importantly, though, the appeals court today opened the door for reconsideration of the Supreme Court’s old decision, noting that, “even if the Supreme Court of Texas would not decide this case today the same way it decided Richards in 1957, that is a decision for that court and not this one.”

The case began when a 2004 Chevrolet Silverado was seized from Zaher El-Ali—the truck’s innocent owner—using Texas’ civil forfeiture law. 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, he 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 challenges not only the lack of protection for innocent owners, but also the ability of law enforcement agencies in Texas to keep the cash and other assets that they seize, giving them a direct financial incentive to abuse this power and the rights of property owners. From 2001 to 2007, the last year for which data are available, Texas agencies took in at least $280 million in forfeiture funds, and annual proceeds nearly tripled over those seven years. In Texas, forfeiture funds can even go to pay police salaries. This establishes a perverse incentive structure under which the more property police seize, the nicer their facilities, equipment and automobiles—and the bigger their personal paychecks. The Court declined to make a ruling on this challenge on procedural grounds.

“The Court of Appeals punted on an opportunity to protect the property rights of innocent Texans,” said Matt Miller, executive director of the Institute for Justice Texas Chapter. “Under the current system, the property of every Texan is subject to forfeiture under the flimsiest of pretenses. And once property is taken, the system is stacked against innocent property owners to try to get it back. This rigged system must be changed and constitutional limits on civil forfeiture power must be recognized.”