85S11970 KSM-F

By: Anchia H.C.R. No. 31

CONCURRENT RESOLUTION

WHEREAS, Civil asset forfeiture is a process by which a local, state, or federal law enforcement agency can seize or confiscate a person's property, under the guise that it constitutes proceeds of a crime or was instrumental in the commission of a crime, without having to convict the person of a crime as the process is considered a civil rather than a criminal action; and

WHEREAS, Since September 2001, state and local law enforcement authorities, under the auspices of the Equitable Sharing Program, have taken in over $2.5 billion through more than 62,000 cash seizures from people who were not charged with a crime; and

WHEREAS, Since 2007, the United States Drug Enforcement Agency has seized more than $4 billion in cash from people suspected of involvement in drug activity, but 81 percent of those seizures, totaling approximately $3.2 billion, were conducted administratively with no civil or criminal charges brought against the owners of the property, and no judicial review of the seizures ever occurred; and

WHEREAS, In the last 10 years, the U.S. Department of Justice Asset Forfeiture Fund, which collects proceeds from seized cash and other property, has ballooned to $28 billion, and in 2016 alone, authorities seized $2 billion, with nearly $100 million of that deposited from the State of Texas; and

WHEREAS, In too many cases, current federal asset forfeiture laws create a financial incentive for the pursuit of profit over the fair administration of justice, facilitate the circumvention of state laws intended to protect citizens from abuse, encourage the violation of due process and property rights of Americans, and disproportionately impact people of color and those with modest means; and

WHEREAS, Victims of civil asset forfeiture must prove their own innocence or the innocence of their property in order to get their property back, turning the presumption of innocence on its head; and

WHEREAS, Addressing civil asset forfeiture in its Interim Report to the 85th Texas Legislature, the Senate Committee on Criminal Justice found that "when abuse of forfeiture does occur, the average individual cannot readily defend their property in court; attorney costs, low evidentiary standards, and the difficulty of asserting the innocent owner defense together place an undue burden on individuals attempting to defend their property"; and

WHEREAS, The interim report goes on to state that "the taking of private property demands the utmost scrutiny. Divorced from all financial incentives, agencies possess a duty to provide a direct tie to criminal activity for each occurrence of forfeiture, requiring an accompanying increase in evidentiary standard to clear and convincing from preponderance of the evidence, a standard reserved for civil matters"; and

WHEREAS, Despite its use by law enforcement to attack the financial incentive for crime, the current process for civil forfeitures leaves citizens without several vital protections afforded to them in criminal proceedings; and

WHEREAS, On July 19, 2017, United States Attorney General Jeff Sessions issued an order further authorizing Department of Justice components and agencies to forfeit assets seized by state or local law enforcement; now, therefore, be it

RESOLVED, That the 85th Legislature of the State of Texas, 1st Called Session, hereby call for the reversal of the order issued on July 19, 2017, by the United States attorney general and for the repeal of the civil asset forfeiture program; and, be it further

RESOLVED, That the civil asset forfeiture program be replaced with a process of criminal asset forfeiture that requires:

(1) the conviction of a crime subject to forfeiture to be obtained prior to forfeiture of the property;

(2) an increase in the evidentiary standard to clear and convincing from preponderance of the evidence;

(3) the prohibition of the forfeiture of homestead properties, motor vehicles valued at less than $10,000, and currency totaling less than $200;

(4) the establishment of procedures for a proportionality hearing to determine whether the forfeiture is unconstitutionally excessive in proportion to the alleged crime; and

(5) the speedy return of property to its rightful owner when charges are dropped or the owner is acquitted, as well as when the court determines that an owner has a bona fide security interest; and, be it further

RESOLVED, That the U.S. Congress be urged to pass comprehensive and effective civil asset forfeiture reform; and, be it further

RESOLVED, That the Texas secretary of state forward official copies of this resolution to the president of the United States, to the president of the Senate and the speaker of the House of Representatives of the United States Congress, and to all the members of the Texas delegation to Congress with the request that this resolution be entered in the Congressional Record as a memorial to the Congress of the United States of America.