Texas Supreme Court Justices Slam Civil Forfeiture Law

J. Justin Wilson
J. Justin Wilson · March 31, 2014

Austin, Texas—A majority of justices on the Texas Supreme Court strongly condemned the state’s civil forfeiture law on Friday. The criticism comes in response to the Court’s decision not to hear a case challenging the Texas government’s ability to take private property from innocent owners without having to prove they are guilty of a crime.

The five-justice majority of the Court signaled an interest in reviewing the constitutionality of modern Texas civil forfeiture practices in a future case. “We have not examined the rights of innocent property owners in more than half a century,” wrote Justice Don Willett, who was joined by Justices Debra Lehrmann and John Devine in dissent (PDF).

“Asset forfeiture in 1957 was exceedingly narrow. Fast-forward 57 years, and forfeiture is ubiquitous given the sweep of expanded state and federal laws and, most fatefully, the direct profit incentive baked into them,” said the dissent.

In their concurrence (PDF), Justices Jeff Boyd and Eva Guzman agreed that Texas should not “ensnare guiltless citizens and seize their homes and other property.”

“The strong statements made by the Supreme Court justices reflect the thoughts of so many Americans when they learn about civil forfeiture,” said Scott Bullock, senior attorney with the Institute for Justice. “People are astonished and outraged to find out that under civil forfeiture laws people can lose their property without being convicted or even charged with a crime.”

Civil forfeiture is a legal fiction that 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.

The case the Court considered for review 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, 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.

Since Ali first began his fight to repossess his property in 2010, civil forfeiture practices across the country have received increased scrutiny. Last August, New Yorker reporter Sarah Stillman wrote a long feature for the magazine highlighting forfeiture abuses in Philadelphia, Washington D.C., Arizona, and elsewhere. And in Michigan, the Institute for Justice became involved in two cases where owners of an independently owned gas station and grocery story lost tens of thousands of dollars to forfeiture.

“It’s clear that the Court is deeply concerned about forfeiture abuse and is open to reviewing the power in a future case,” said Institute for Justice Attorney Matt Miller. “The battle to protect private property rights in Texas and throughout the nation will continue.”

Although the problem of civil forfeiture is widespread, an increasing number of courts have weighed in to limit its scope and applicability. Recently, Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts dismissed a civil forfeiture action after the state attempted to take a motel away from its owners by arguing that the motel facilitated drug crimes. Judge Dein ruled that the owners were “innocent owners,” and that “punishing [the owner] by forfeiting the Motel obviously would not punish those engaged in the criminal conduct.” Dein also found that the state prosecutors engaged in “gross exaggerations” of the facts and made a “highly derogatory argument.”

To learn more about this case, please visit ij.org/state-of-texas-v-one-2004-chevrolet-silverado. Founded in 1991, the Virginia-based Institute for Justice is the national law firm for liberty.