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.