Can a Bipartisan Effort to Repeal Civil Asset Forfeiture Overcome Police Resistance?

In Texas, an average of $41.5 million per year is funneled into local law enforcement budgets as a result of forfeitures.


Nearly $900,000 in seized cash
Nearly $900,000 in seized cash  CBP

A bipartisan coalition is forming in the Texas Legislature to overhaul a Reagan-era police practice that allows law enforcement officers to confiscate personal property without charging the owner with a crime.

State Senator Konni Burton, R-Colleyville, is carrying Senate Bill 380, which would repeal civil asset forfeiture, a practice the libertarian-leaning Republican says flies in the face of the U.S. Constitution.

“Right now, law enforcement can seize property under civil law, and it denies people their basic rights,” said Burton, who sits on the Senate Criminal Justice Committee. “There’s a basic problem with this process that I want to correct.”

Under Texas’ civil asset forfeiture laws, cops can seize and forfeit property — such as cash, cars and even video game consoles — they suspect to be ill-gotten gains. Property owners can challenge the forfeiture in a civil court proceeding, but they have to do so without the help of state-appointed attorneys, as those are afforded strictly for criminal defense.

The practice can be a boon for law enforcement agencies, many of whom oppose Burton’s measure. In Texas, an average of $41.5 million per year is funneled into local law enforcement budgets as a result of forfeitures, according to the Institute for Justice, a libertarian think tank.

For years, legislators have worked to reform civil asset forfeiture after a number of “horror stories” drew national attention to the process, according to Sergeant Jim Smith, who heads the San Antonio Police Department’s legal asset seizure detail.

In 2005, 30-year-old Javier Gonzalez was stopped en route from Austin to Brownsville to visit his dying aunt. He was traveling with more than $10,000 cash that he planned to spend on funeral arrangements. Though Gonzales wasn’t carrying drugs or contraband, the Jim Wells County Sheriff Department officers who stopped him arrested Gonzales and pressured him into signing away his rights to the money. It was the only way he’d avoid felony charges of money laundering, they told him.

In response to this case and others like it, Houston Democratic state Senator John Whitmire, chair of the Senate Criminal Justice Committee, helped pass a sweeping asset forfeiture reform bill in 2011. Whitmire’s bill, SB 316, prevented cops from using bogus agreements like the one Gonzales signed. It also required law enforcement agencies to submit yearly forfeiture audits and restricted how they can use forfeited funds.

Smith, who has worked in SAPD’s asset seizure detail for 11 years, told the Observer that law enforcement has abused asset forfeiture in the past, but he believes that the 2011 reforms fixed the problem.

Burton’s bill would go further by requiring a criminal conviction before law enforcement could forfeit property.

State Senator Konni Burton
State Senator Konni Burton  Courtesy of Konni Burton

In 2013, the Legislature directed the Office of Court Administration (OCA) to study civil asset forfeiture. OCA found that state and local law enforcement agencies in Texas had “confiscated approximately $486 million in asset forfeiture cases” from 2003 to 2012.

According to the OCA report, DAs and law enforcement agencies used the majority of the funds they received through civil asset forfeiture to pay for equipment, training and salaries.

During Ronald Reagan’s presidency, states passed asset forfeiture laws to direct funds confiscated from drug operations back into the law enforcement agencies fighting the war on drugs. Civil asset forfeiture became law in Texas in 1989.

Now it’s uniting politicians who might not otherwise be willing to break bread, according to Matt Simpson, senior policy strategist for ACLU Texas.

“It’s an issue that crosses party lines; it’s not Democrat versus Republican or liberal versus conservative,” he told the Observer, adding that he hasn’t “seen a bill we wouldn’t support in relation to civil asset forfeiture reform, especially some of the stronger ones.”

Conservatives like Burton argue that civil asset forfeiture is a perversion of personal liberty, while legislators on the left argue that the practice leads to discriminatory policing because officers target people of color at disproportionate rates.

Civil asset forfeiture overhaul ranks high on Whitmire’s wish list for criminal justice reform. The matter excites him, he told the Observer, because it’s one of the few policy arenas in which he is able to make headway working with Republican legislators.

“I’ll work with them on that,” he said. “I think there is a good environment for criminal justice reform [this session], but the devil is in the details. You really don’t see the pushback until you start making some progress.”

In the case of Burton’s bill, that pushback will likely come sooner rather than later. She told the Observer that she has already encountered resistance from law enforcement officials.

Burton’s bill includes no mechanism for replacing the funds law enforcement agencies are almost certain to lose with the repeal of civil asset forfeiture.

And many law enforcement agencies aren’t going to give up without a fight, according to Charley Wilkison, executive director of the Combined Law Enforcement Associations of Texas (CLEAT). Wilkison and Smith, of SAPD, said they will be at the Capitol to oppose Burton’s bill.

“And I would be surprised if you didn’t hear from mayors and city managers and other officials who have to deal with budget issues,” Wilkison said.