Texas Supreme Court Petitioned on Civil Forfeiture

J. Justin Wilson
J. Justin Wilson · February 20, 2013

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. Under civil forfeiture, the traditional burden of proof in criminal cases—where the government must demonstrate guilt—is placed on property owners, who must demonstrate their innocence.

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 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 through 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, which gives 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 (click here for a report documenting this trend). In Texas, forfeiture represents 14 percent of the budget of the average law enforcement agency and 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.

“Civil forfeiture in Texas today is rigged against property owners. This must be changed and constitutional limits on this awesome power of government must be recognized,” said Matt Miller, executive director of the Institute for Justice Texas Chapter. “It is time to give innocent property owners the legal protections they deserve when the government seizes their home, car, or cash.”