Wednesday, January 05, 2011

Asset forfeiture reform legislation filed

I received this press release today about notable asset forfeiture legislation similar to that which died in 2009 as part of the voter ID chubfest:
Senator Whitmire files Senate Bill 316 to reform Texas Asset Forfeiture laws

AUSTIN, Texas -- Senator John Whitmire (D-Houston) announced today he filed Senate Bill 316 to address the continuing abuse of the asset forfeiture process and misuse of the funds generated by these seizures. Senator Whitmire stated, "The criminal convictions of a District Judge and District Attorney last year demonstrate these reforms are required and necessary."

The bill prevents a prosecutor from obtaining a waiver to the rights to property from an alleged offender until a suit has been filed and a district court is supervising the process. No longer will a waiver be allowed after a traffic stop; a practice which has led to allegations of highway robbery where a person is searched and their property seized, but the suspect is never charged with any crime.

The new law will also provide a list of prohibited uses of the proceeds and ensure that only expenditures to fight crime are allowed, the intended purposes for which these actions are designed.

"Without the proper guidelines and transparency, these events can lead to the worst case scenario of highway piracy, as we have so painfully observed in several cases across this state," stated Senator Whitmire.
See related Grits posts:


Anonymous said...

(d) A person in the possession of property at the time a peace officer seizes the property under this chapter may at the time of seizure assert the person's interest in or right to the property. A peace officer who seizes property under this chapter may not at the time of seizure request, require, or in any manner induce any person, including a person who asserts an interest in or right to the property seized, to execute a document purporting to waive the person's interest in or rights to the property.

This the language present law in Chapter 59. Why is Whitmire writing a law that already exists?

Gritsforbreakfast said...

FWIW, there's a lot more than that in the bill.

Zeety said...

Higway robbery, there is simply no better description.

But of course, it's like all the other law enforcement corruption in Texas; the voters who put these morons in office think it will never happen to them, or "if you're not doing anything wrong, you having nothing to worry about."

You pretty much can't carry more than $20 cash anymore without a cop suspecting you of doing something illegal.

"Legal tender" my ass.

Red Leatherman said...

Somewhere in a box at the back of the closet is a xerox of about $85.00 bucks I had in my wallet one night in the '90s that was seized in Denton County.
Thank you Senator John Whitmire

Anonymous said...

The policemen, DA, judge, and others in the town of Tenaha are unlikely to be approving of this legislation. Indeed, they'll have to figure out another way to rob unsuspecting drivers passing through their town:,_Texas

Anonymous said...

There may be a lot more language in the new bill. Since the language is already in present law, it just strikes me as this being another example of we don't need more laws, just enforce the ones we have. More political posturing by another freeze dried politician.

Anonymous said...

Interesting reading there on the bill. Now senator Whitmire, hows about introducing a bill so I can wake up one morning and read "Texas state government spending reform legislation filed and passed" so you good ol boys there in the lege might finally learn the concept of what it means to be good stewards of taxpayers dollars.

Gritsforbreakfast said...

9:29, he did! That's what the 2007 probation reforms were about. Texas would be paying to incarcerate 17,000 more people today and would have spent billions on new prison construction if not for Whitmire and Madden's reforms.

Anonymous said...

You know Grits, your right he did that.

But you know what, what smacks me in the face is the recent ruling by the Texas Etichs Commission who ruled that Whitmire did nothing wrong by spending $90,000.00 of his campaign contributions on sports tickets to Astros, Texans and Rockets games.

And he has the gall to write this new legislation on asset forfeiture funds? Yes it is an area that needs scrutiny but Whitmire in charge is like the Latin term 'Ovem lupo commitere.'

He smacks of arrogance!

Gritsforbreakfast said...

BTW, @8:31 et. al., I'm informed that current law only bans police officers from securing such waivers. Whitmire's new legislation is aimed at DAs. In Tenaha, the local DA was actually going out to traffic stops herself to perform that function, to get around the ban on cops doing it. One of Whitmire's staffers called to clarify that point.

Anonymous said...

(6) make any expenditure not approved by the
commissioners court or governing body of the municipality, as
applicable, if the head of a law enforcement agency or attorney
representing the state holds an elective office and

I see a problem here. I'm only aware of one police chief's position in the state that is elected. Does the language here mean that any municipal agency who does not have an elected police chief does not have to get approval from the city council before making an expenditure?

Another problem......

(c) If the results of an audit or investigation under this
article indicate that a law enforcement agency or attorney
representing the state has knowingly violated or is knowingly
violating a provision of this chapter relating to the disposition
of proceeds or property received under this chapter, the state
auditor shall promptly notify the attorney general for the purpose
of initiating appropriate enforcement proceedings under Article 59.062.

Who is going to make this determination? The state auditor, an independent panel, who?????

Another issue......

Art. 59.062. ENFORCEMENT. (a) In the name of the state,
the attorney general may institute in a district court in Travis
County or in a county served by the law enforcement agency or
attorney representing the state, as applicable, a suit for
injunctive relief, to recover a civil penalty, or for both
injunctive relief and a civil penalty if the results of an audit or
investigation under Article 59.061 indicate that the law
enforcement agency or attorney representing the state has knowingly
violated or is knowingly violating a provision of this chapter
relating to the disposition of proceeds or property received under
this chapter.

All suits should be filed in the county where the law enforcement agency is located. To say it may be filed in Travis County is an unfair financial burden on taxpayers who are not complicit but must pay for legal defense, including lodging, travel and meals.

Pamela J. Lakatos said...

I am grateful to Sen. Whitmire for some of the things he has done to help curb the abuse and misuse of forfeitures.

What we need to do now is curb how the forfeitures are utilized-things such as the Collin County DA using such funds to outfit an independent SWAT team for the prosecution is just one example of how these funds are misused.

When I was a baby prosecutor, many years ago I remember the debates in the Legislature about what the funds could be used for and there were assurances all the way around that there would be no "misuse" and that they would be used only to benefit the criminal justice system around the State.

The problem was that no one bothered to specify what "benefit" meant.

As a result you had the funds being used for every vanity project that suited the ones in control. After all, "benefit" is a term that can be used in many ways. Some of the misuses were well-intentioned, such as DAs trying to pay their prosecutors more, funding what appeared to be good programs but that were not adequately supervised, etc.

It is very difficult to craft a bill that will cover all the bases and not be subject to overt abuse-I personally think it is impossible on the first try-but now that we have a history of this type of thing we should make sure that the abuses of the past will no longer be available.

Of course I have a great faith in the ability of those who really desire it to be able to come up with new perverted ways to abuse the original well-intentioned purpose.

That does not mean we should not try.

Gritsforbreakfast said...

11:45, I believe city councils in municipalities without an elected chief already approve expenditures from forfeiture funds. I think that language is trying to get at Sheriffs.

Also, judging from discussions in committee over this bill last session, I think the reason for doing it in Austin is that the DAs and local judges all have an interest in maximizing local county revenue, which is why the judges are approving this garbage in the first place. Setting the case outside the jurisdiction avoids undue influence.

Good question about who makes the determination - it requires an annual audit, but it's not clear to me by who. It does say the Comptroller will step in and do an audit if the locals don't do one.

Pamela, good comments, particularly about the Collin DA SWAT unit - I'd forgotten about that one.

austex1151 said...

I have two comments on this thread. First, DA's enjoy absolute immunity for actions taken while in office, as I understand it. Many DA's in Tx twist the law for their own purposes, sometimes illegally, but cannot be held accountable. Prosecutorial abuse is not uncommon. Look at the guy who just got out of prison after 30 yrs for a crime he did not commit. The DA originally withheld evidence. Name another profession in which you get immunity for wrong doing, even that which results in judicial murder.

Secondly, conservatives love to throw around phrases about how we all "have access" to the law for redress.(Same false argument about health care, but another subject). But like health care, legal access is rationed by money- you got it, you can get it. No got it...see ya! DA's know this and use it all the time. Ever try to file a suit against a LE agent? There is a ton of money required up front.

BTW, Whitmire is one of the few politicians in our Lege who actually tries to improve the "justice" system here.

Anonymous said...

Asset forfeiture was banned in Oregon by initiative, probably the only state where this is so (they must have a conviction in order to confiscate any property). It was amazing how the cops pissed and moaned about this, but it passed anyway. It's a waste of time expecting the legislature to fix problems like this; has to come from the people.

Let's see, how does one say it? "Cops are assholes?" Sounds about right.

Anonymous said...

I don't believe Whitmire is any champion at all. And I don't think he's trying to improve the justice system. I'll remind everyone that he is also sponsoring legislation to allow for DWI roadblocks statewide. This is just another step in the direction of a full-blown Police State. These DWI "checkpoints" will soon be seen by every law enforcement agency in the state as revenue enhancement opportunities, and every one of them will be staffed with Gestapo agents and German Shepherds that will provide the required false alerts necessary to search vehicles. BTW, anyone know how much the private prison industry donates to Whitmire's campaign?

Anonymous said...

5:25 as I said earlier we need some reform on this asset forfeiture stuff but Whitmire is a hypocrite for writing the bill. Campaign donations should be for campaigning, you know like for signs, pencils, pens, ads, etc. Not for buying tickets to the Astros, Rockets and Texans games or as well as items from Neiman Marcus, Tiffany and Co., Fisher Florist and the Macy's Wedding Channel. He also allegedly used $152.42 in campaign funds for a Sirius Radio subscription.

The whole freakn political system in Texas and Washington is very frustrating to me and it ain't just with Whitmire.

Anonymous said...

Zeety said...

5:21 - Oregon is awesome, no income tax and no sales tax. It's damn nice walking out of the store with a receipt in your hand that doesn't include the 0.825% surcharge. Then again, I didn't live there long enough to acquire any real property, so I'm sure someone was paying to support all the ample government services and cops running around acting like Nannies.

I had a cop jack me up for jaywalking in Eugene and just looked at him like he was crazy. He trumped up two more charges for an extra $1,200. Needless to say, I learned my lesson on how municipal funding works on the West Coast. I'm glad to be back in the Midwest where we just take your money out of the six pack you bought like every knows it should be.

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Anonymous said...

Asset forfeiture is a scam. I've had friends who are fighting with the judicial system and its all about the money more than the justice. Drugs should be legalized because the war on drugs is not being won.