Poor protections for innocent third-party property owners
As much as 70% of forfeiture proceeds go to law enforcement in most cases
State Forfeiture Laws
Texas has terrible civil forfeiture laws, earning a D+. The standard of proof required to forfeit property in Texas is just preponderance of the evidence, and an innocent owner bears the burden of proving that she was not involved in any crimes associated with her property before she can get it back. In addition, law enforcement agencies enjoy a strong incentive to seize property. In cases where a default judgment is entered—as is the case in the majority of forfeiture actions—agencies retain up to 70 percent of forfeiture proceeds. In contested cases—those in which the property owner challenges the basis for the seizure—agencies retain up to 100 percent of proceeds.
Texas law enforcement agencies are required by law to submit annual forfeiture reports to the Office of the Attorney General of Texas, but these reports are far from comprehensive. Additional information—such as itemized lists of assets forfeited, whether an arrest or conviction occurred and breakdowns of civil versus criminal forfeiture cases—would make the reports more useful. The attorney general’s office is required to compile the reports and make them publicly available starting April 30, 2016. Unfortunately, this new requirement was not in place during the data collection for this report. The Institute for Justice was therefore forced to file a Texas Public Information Act request to obtain the reports and then manually comb through them to arrive at a complete picture of forfeiture statewide. Data obtained and aggregated by IJ reveal that agencies reported forfeiting more than half a billion dollars—almost $541 million—between 2001 and 2013, a fiscal-year average of nearly $41.6 million.
State Law Sources
Standard of proof
Preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 59.05(b).
Innocent owner burden
Owner. Tex. Code Crim. Proc. Ann. art. 59.02(c), (h)(1).
Up to 100 percent in contested cases; up to 70 percent in cases where a default judgment is entered. Tex. Code Crim. Proc. Ann. art. 59.06(c), (c-3); see also Tex. Att’y Gen. Op. GA-0122 (Nov. 18, 2003) (noting 70–30 split between district attorney and Department of Public Safety).
The Office of the Attorney General is required to create annual aggregate forfeiture reports from reports submitted by agencies and, beginning on April 30, 2016, to publish those aggregate reports online. Tex. Code Crim. Proc. Ann. art. 59.06(g), (s).
Texas ranks 47th for federal forfeiture, with over $349 million in Department of Justice equitable sharing proceeds from 2000 to 2013.
State Forfeiture Data
Reported Forfeiture Proceeds
Average per year
Source: Fiscal-year forfeiture reports filed by law enforcement agencies and district attorneys with the Office of the Attorney General of Texas. The Institute for Justice obtained copies of these reports by filing a Texas Public Information Act request with the attorney general’s office. Values represent cash and sold property and do not include the value of property retained for official use.
Federal Equitable Sharing
Texas law enforcement agencies are some of the nation’s most aggressive participants in the Department of Justice’s equitable sharing program, earning the Lone Star State 47th place in the national rankings. Between 2000 and 2013, Texas agencies received a staggering $349.7 million in DOJ equitable sharing proceeds, averaging almost $25 million per calendar year. As 82 percent of those proceeds came from joint task forces and investigations, Texas agencies are unlikely to be seriously impacted by the DOJ’s policy change intended to curtail equitable sharing; the new policy has little effect on such joint activity. Law enforcement agencies in Texas also received nearly $170 million in equitable sharing proceeds from the Treasury Department between the 2000 and 2013 fiscal years.almost $325,000 a year.