On Monday, the House Committee on Criminal Jurisprudence met to hear testimony on 15 bills, including four which concern the state’s civil asset forfeiture system. Those four bills are House Bill 132 by Rep. Terry Canales (D-Edinburg), House Bill 251 by Rep. Senfronia Thompson (D-Houston), House Bill 667 by Rep. Harold Dutton (D-Houston), and House Bill 1441 by Rep. Matt Schaefer (R-Tyler).
HB 132 increases the burden of proof in asset forfeiture proceedings from “a preponderance of the evidence” to “clear and convincing evidence.” It would further limit when a law enforcement agency or a prosecutor may transfer, or coordinate to transfer, property subject to forfeiture to a federal authority or agency. According to the bill’s fiscal note, certain municipalities expect the bill would have a significant negative fiscal impact.
HB 251 repeals almost all current provisions relating to civil asset forfeiture in the state and instead implements a system of criminal asset forfeiture – requiring a criminal conviction for forfeiture of contraband. According to the fiscal note, the Legislative Budget Board anticipates the bill would have a negative impact of approximately $8 million on general revenue through the biennium. El Paso County anticipates that passage of this bill would result in a loss of locally retained revenue of $518,701 in fiscal year 2022 and $544,636 in fiscal year 2023.
HB 667 would also make final conviction a necessary element of forfeiture and would require a judge to dismiss forfeiture proceedings on proof of dismissal or acquittal of the underlying offense.
Finally, HB 1441 would increase the burden of proof in all forfeiture cases to “clear and convincing evidence” and would shift the burden from the property owner to the state to demonstrate that no “innocent owner” of the property exists.
Chair Nicole Collier (D-Fort Worth) took up the four bills together as a slate and heard testimony for all of them simultaneously.
Assistant District Attorney Angela Beavers, Harris County’s Asset Forfeiture Division Chief, testified in opposition to all four bills. Beavers reviewed the reforms that were made in 2011 to the forfeiture system and stated that, as reformed, there are already many checks in place. Currently, law enforcement agencies and district attorneys’ offices are required to send a detailed annual report to the attorney general that accounts for the seizure, forfeiture, receipt and specific expenditure of all proceeds and property received by forfeiture. Furthermore, statute clearly delineates the prohibited and allowed uses for proceeds from seized contraband. Beavers pointed out that “clear and convincing evidence” is the standard by which courts currently decide whether to terminate the parent-child relationship or to terminate life support. It is the highest burden of proof that exists in our civil jurisprudence system. Beavers suggested that this burden of proof – “clear and convincing evidence” – would be disproportionate in forfeiture cases.
District Attorney Phillip Mack Furlow of the 106th Judicial District also testified in opposition to the bills, saying property is only seized when probable cause for an arrest for a felony exists and when there is a connection between the property and the crime alleged to have been committed. Furlow emphasized that the burden currently is on the state to prove the nexus between the criminal conduct and the property seized. He stated that current law provides a process (an affirmative defense) by which innocent owners of the property may reclaim the property.
The bills were left pending in committee.
For more information on this article, please contact Amy Befeld.