11 Asset Forfeiture, BPOC 736, Module C, Chapter 11

Question 1

What Section of the Occupations Code requires comprehensive education and training on asset forfeiture?

Answer 1

1701.253(g)

Question 2

What Section of the Occupations Code requires comprehensive education and training on asset forfeiture for an intermediate proficiency certificate?

Answer 2

1701.402(d)

Question 3

What was the original philosophy for establishing procedures on asset forfeiture?

Answer 3

(a) to deprive the cartels of the profits and goods used to commit major crimes in a way that benefits law enforcement and the state; (b) to serve as a remedy for the problem of drug trafficking, not to be punitive; (c) not meant to be oppressive; (d) must seek justice; (e) property seized must be in proportion to the seriousness of the offense; (f) jeopardy issues

Question 4

Name two types of civil asset forfeiture.

Answer 4

Civil Judicial Forfeiture and Administrative Forfeiture

Question 5

What is the significant difference between civil judicial forfeiture and administrative forfeiture?

Answer 5

Civil judicial forfeiture requires a case be filed against the property (not a person) in the federal court to provide due process in determining whether the property is the result of a criminal endeavor. Administrative forfeiture does not require the filing of a court case; it is intended for the situation where no one is expected to claim the property (i.e., the money from a bank robbery will not be pursued by the individual(s) who stole it).

Question 6

Why do proponents of civil asset forfeiture believe it is necessary?

Answer 6

(a) a powerful tool to slow or stop illegal activity; (b) seizing the propery involved in a crime hurts the criminal organizations; (c) using the proceeds to fund law enforcement provides fund to enforce the rule of law

Question 7

Why do opponents of civil asset forfeiture believe it should be shut down?

Answer 7

(a) called “policing for profit” or “nothing more than theft by the state under color of law”; because funds go to law enforcement, it is an incentive to find as much land as possible to seize; police can seize property on unsubstantiated claims; shifts the burden of proof to the innocent homeowner, not the judicial system

Question 8

Is civil forfeiture punitive?

Answer 8

According to the U.S. Supreme Court, it is not punitive for purposes of a claim of double jeopardy (United States v Ursery, 116S.Ct. 2135 (1996))

Question 9

According to the DOJ, what are three main justifications for the use of civil forfeiture?

Answer 9

(a) Punishment and deterrence (punishing criminal offenders by depriving them of property used or acquired through criminal activities); (b) to enhance police cooperation among foreign, federal, state, and local law enforcement agencies through the equitable sharing of assets recovered through civil forfeiture; (c) revenue for law enforcement

Question 10

Do civil asset forfeitures violate the Eighth Amendment of the Constitution?

Answer 10

The U.S. Supreme Court has ruled that Civil Asset Forfeitures violate the Eighth Amendment prohibition against excessive fines. This ruling applies to all 50 states under the Fourteenth Amendment and prohibits the use of civil asset forfeiture. “[Nor] shall any State deprive any person of life, liberty, or property, without due process of law.”

Question 11

What is “contraband”?

Answer 11

Property of any nature, including real, personal, tangible, or intangible, that is used in the commission of any first or second degree felony.

Question 12

What felonies fall under the definition of “contraband” in CCP 59?

Answer 12

(a) any first or second degree felony under the Penal Code; (b) any felony under Section 15.031(b), 20.05, 21.11, 38.04; (c) any felony under Chapter 43, 20A, 30, 31, 32, 33, 33A, or 35; (d) any felony under the Securities Act; (e) Any offense under Chapter 49 of Penal Code that is punishable as a felony of the third degree or state jail felony if the defendant has been previously convicted three times of an offense under that chapter

Question 13

What statutory defenses against civil asset forfeiture are written into CCP 59.02?

Answer 13

(a) innocent owner defense (nonconsensual); acquired interest before forfeiture; did not know acquiring the interest would lead to a forfeiture; (b) used without effective consent of the owner; (c) stolen property; (d) no spousal defense; (e) dismissal or acquittal of related charges; community property

Question 14

What non-statutory defenses against civil asset forfeiture are written into CCP 59.02?

Answer 14

(a) denial that a substance is an analogue of a controlled substance; state only required to show the substance is an analogue by structure or effect, not both; (b) homestead protection (not resolved in Texas); (c) community property is not a defense; (d) legitimate source of income (when, where, how check negotiated; whether deposited and where and history before and since; when converted to ; (fcash

Question 15

What other issues may provide defenses against civil asset forfeiture under CCP 59.02?

Answer 15

(a) suppression of evidence in criminal case (should have no effect on civil case); (b) dismissal or acquittal in related criminal case raises presumption the property should not be forfeited; (c) Fifth Amendment can be used as a comment on any inference it may support;

Question 16

What information should be gathered during the pre-seizure planning stage?

Answer 16

(a) How is the property owned? Community or separate property, leased or owned, lien or mortgage, estimated value; (b) businesses? Leasing real property? Liens against inventory? (c) equity above mortgage? (d) risks and liabilities; (e) costs? (f) if rented, did the renter consent to the criminal activity on the property; (g) if owned, did the owner consent to the criminal activities on the premises; (h) bank account numbers, signatures, best time to seize, is it collateral on any loans

Question 17

Name five types of search and seizure.

Answer 17

(a) without warrant (owner, operator, or agent knowingly consents); (b) incident to search consented to (property subject to prior judgment of forfeiture; incident to lawful arrest, search, or lawful search incident to arrest); (c) probable cause for seizure (reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by statute); (d) exceptions to warrant requirement (plain view; emergency searches, area within immediate control at time of arrest, safety sweep); (e) with warrant (rules from CCP 18 apply; contraband warrant must also show in affidavit the specific felony offense committed and the described property complies with the definition of contraband from CCP 59.01)

Question 18

What is “official oppression”?

Answer 18

Committing an act that could be construed as inducing a person to waive their rights to their seized property

Question 19

Who is the custodian of the forfeiture?

Answer 19

The officer who seizes has custody.

Question 20

What must be provided to the attorney representing the state?

Answer 20

A sworn statement listing (a) schedule of property seized, (b) acknowledgment that the officer seized the property, (c) a list of reasons supporting the seizure

Question 21

When must the property be placed under seal, removed to a place ordered by the court, or taken into custody by law enforcement and moved to a proper location?

Answer 21

No later than 72 hours after seizure

Question 22

What must be done with forfeited currency?

Answer 22

Deposit in an interest-bearing account in jurisdiction of the prosecuting attorney

Question 23

What must be included on the petition?

Answer 23

All property seized; all owners or interest holders (lienholders, person who had custody when seized, does not necessarily include spouses); affidavit supporting forfeiture

Question 24

What must be included on the Affidavit?

Answer 24

Probable cause (reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity – CCP 59.023); location of seizure; date of seizure; owner of the property; who was in possession of the property; all essential parties; set yourself up as an expect

Question 25

What is probable cause?

Answer 25

Justify the seizure based on the facts; circumstantial evidence is okay; key factors connecting the drugs to the property (proximity to drugs, canine alert, suspicious activity consistent with drug sales, among of money, alternative sources for the money or property, storage location of property

Question 26

Name preferences for the Affidavit.

Answer 26

Should be written by the seizing officer; written in first person based on direct knowledge (“I”, not “officer”); avoid hearsay unless subject to exception or no other option (hearsay exceptnios, statement against interest; excited utterance, etc.; keep it simple as possible (avoid acronyms and abbreviations that are not widely known; defendant’s explanation of where the property came from is not necessary (unless completely implausible and disproven; still requires your complete report with the explanation

Question 27

What cautions should you take when creating reports that will become public records?

Answer 27

Do not add extra information; be sensitive about names and witnesses; stick with facts and reasonable conclusions; no speculation or rumors; check grammar, punctuation, etc.; send in the affidavit for approval before signing, if possible.

Question 28

Are court proceedings for a forfeiture under CCP 59.04 criminal or civil proceedings?

Answer 28

Civil

Question 29

What is the burden of proof for forfeiture proceedings under CCP 59.04?

Answer 29

Preponderance of the evidence

Question 30

Is a respondent in a forfeiture case entitled to an appointed lawyer?

Answer 30

No

Question 31

What rules of evidence apply to forfeiture proceedings?

Answer 31

The same rules of evidence as criminal trials; the hearsay rules still apply

Question 32

Are records from forfeiture proceedings available to the public?

Answer 32

Yes, they are public records

Question 33

How are parties notified of a forfeiture?

Answer 33

By service of civil citation

Question 34

Who can file a forfeiture proceeding?

Answer 34

Only a felony prosecutor

Question 35

Where are forfeiture cases filed?

Answer 35

Generally, only in the county where the property is seized.

Question 36

What is the deadline for the start of forfeiture proceedings?

Answer 36

30 days from date of seizure

Question 37

If seized by federal agents and then given to a local agency, when does the 30-day timeframe begin to run?

Answer 37

The day the property is turned over to the local authorities

Question 38

What are some examples of local policies that may vary?

Answer 38

Only if property value is greater than $500; call for approval before seizing, seizure must be accompanied by a felony offense (absent special circumstances); generally will not file for misdemeanors; “we don’t seize real property”; “we don’t seize cars with large liesns;” paperwork should be turned in within 15 days of the seizure

Question 39

Are guns subject to seizure?

Answer 39

No. Guns must be destroyed, not seized.

Question 40

What types of civil discovery may be involved in a forfeiture case?

Answer 40

Civil discovery, interrogatories, depositions, negotiations, settlement offers, a civil trial, local agreements, federal adoption

Question 41

What were the estimated drug profits moving through the US in 2010?

Answer 41

$300 billion a year

Question 42

Who governs what happens to forfeited property?

Answer 42

State law and interlocal agreements

Question 43

What does CCP 59.06(d-2) and (d-3) say forfeited funds should be used for?

Answer 43

“law enforcement purposes.”

Question 44

What is the “official purpose of an attorney’s office?”

Answer 44

The preservation, enforcement, or administration of the laws of the state.”

Question 45

List some items forfeited money can be used for.

Answer 45

Equipment, supplies, investigative and training-related travel expenses; crime prevention and treatment programs; facility costs; witness-related costs; audit costs (related to forfeitures); legal fees; state bar and legal association dues

Question 46

List some items forfeited money cannot be used for under CCP 59.06(d-1).

Answer 46

Political campaign donations; donate to any entity, except as provided by subsection (d-2); training for any member of the judiciary; travel expenses for training that would violate generally applicable restrictions established by the governing body; to purchase alcoholic beverages; make any expenditure not approved by the commissioners’ court or governing body of the municipality as applicable, if the head of a LE agency or attorney representing the state holds an elective office; increasing salaries, unless approved by the governing body.