Constitutional Challenge Aims to End Rampant Forfeiture Abuse in Texas

J. Justin Wilson
J. Justin Wilson · April 7, 2010


Arlington, Va.—Texas has some of the worst civil forfeiture laws and practices in the country, but a constitutional challenge filed today looks to change that.  A Texas property owner is fighting back by challenging the government’s forfeiture of his Chevy truck and in so doing, he aims to protect the property rights of all Texans.

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 of any crime to lose their homes, land, trucks, boats or cash.

Making matters worse, law enforcement agencies in Texas and many other states get 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.  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.

“Americans are supposed to be innocent until proven guilty, but civil forfeiture—including the law in Texas—turns that principle on its head,” said Scott Bullock, a senior attorney with the Institute for Justice, a national, non-profit public interest law firm that is launching the challenge today.  “With civil forfeiture, your property is guilty until you can prove it innocent.”

Small businessman Zaher El-Ali, who goes by Ali, has lived in Houston for more than 30 years.  In many ways, his is a classic American immigrant success story, coming to America with only $500 in his pocket, but securing for himself a comfortable American life through honest enterprise.  Ali makes a living by restoring cars and homes, then selling them mostly to low-income residents in East Houston, where Ali also lives.

In 2004, Ali sold a 2004 Chevrolet Silverado 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 until he was paid in full and also registered the car in his name.  In July 2009, the buyer was driving the Silverado and was pursued by a police officer on suspicion of drunk driving.  When stopped by the police, he 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 Silverado was seized for civil forfeiture.  It has been sitting in the Harris County impound lot ever since.  In July 2009, Ali wrote to the district attorney, telling him of his interest in the truck and attaching copies of the title and registration naming Ali as the owner and asking for its return.  The driver has been in jail since July and had stopped making payments.  The government responded by filing a civil forfeiture action against the truck:  State of Texas v. One 2004 Chevrolet Silverado.  Through the filing of counterclaims in the case, Ali wants not only to get his truck back but also to stop the state from abusing forfeiture law against all Texas citizens.

“One of the main reasons why I came to America and became a citizen was because I believe passionately in the principles of economic opportunity, private property and the ideal that you are innocent until proven guilty,” said Ali.  “I have never been arrested let alone convicted of any crime so I was shocked to learn about a system that allowed law enforcement to seize my truck, sell it, and then use the money to fund their budgets, all without charging me with a crime.”

Ali has joined with the Institute for Justice in bringing counterclaims in the case of State of Texas v. One 2004 Chevrolet Silverado to challenge Texas’ civil forfeiture statute as a violation of his constitutional rights.  Ali challenges the profit incentive that underlies civil forfeiture in the state.  He also challenges the provision of the law that places the burden on owners to prove their innocence, rather than on the state to prove their guilt.  If successful, Ali’s legal challenge will help rebalance Texas law enforcement priorities, take the profit out of civil forfeiture, and protect innocent property owners caught up in an upside-down legal process that violates fundamental constitutional standards of due process.

“Texas has been plagued by forfeiture scandals and abuse,” said Matt Miller, executive director of IJ’s Texas chapter.  “Ali’s lawsuit aims to end this serious assault on private property rights.”  

A new report from the Institute for Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture, shows just how widespread police profit from civil forfeiture has become.  The report, which grades all 50 states and the federal government based on how well their asset forfeiture laws protect private property rights, gives Texas a “D-” because the Texas statute does almost nothing to protect innocent owners.  The report demonstrates that forfeiture in Texas has skyrocketed from $18,983,274 in total assets seized in 2001 to $49,179,252 in 2008.  Over the seven-year period studied by the report, Texas law enforcement agencies seized $225,592,873—nearly a quarter billion dollars—in currency and property under civil forfeiture.  Data show that Texas law enforcement agencies rely heavily on forfeiture funds.  In a random sample of 52 Texas law enforcement agencies, plus the top 10 forfeiture-earning agencies, forfeiture revenue amounts, on average, to 14 percent of agency budgets.  For just the top 10 forfeiture money-makers, forfeiture dollars equal about 37 percent of agency budgets.

“The Institute’s lawsuit against Texas is the inauguration of our national campaign to protect private property rights from abusive forfeiture laws,” said Chip Mellor, president and general counsel of the Institute.  “This suit will strengthen protections for innocent owners and end the perverse incentive structure under which agencies financially gain from civil forfeiture in Texas.”