Don Willett

When it Comes to Civil Forfeiture in Texas, You Have No Property Rights


A version of this story ran in the May 2014 issue.

The case titled State of Texas v. One 2004 Chevrolet Silverado is one of thousands of civil forfeiture suits each year in which the state faces off against “One Pearl Necklace” or “.39 acres” or “One Gold Crucifix.” A used-car salesman in Houston, Zaher El-Ali, had sold the Silverado, on credit, to another man, who was later arrested for drunk driving and cocaine possession. El-Ali held title to the vehicle while the man paid off the truck. He had nothing to do with the crimes. But that didn’t stop local law enforcement from seizing the vehicle as “contraband” and filing suit against the truck (thus the strangely titled lawsuit). If El-Ali wanted to keep the truck he would have to hire an attorney and prove that he was an “innocent owner”: a legal standard higher than the one faced by criminal defendants.

El-Ali found himself in the same preposterous situation as countless Texans every year—seriously, the record-keeping is so bad, we don’t know how many people are affected—ensnared in the state’s shamefully baroque civil-forfeiture laws. It’s been amply documented that some local prosecutors and cops use the laws to run sophisticated shakedown operations, seizing cash, cars, jewelry and other property from innocent people, especially black and Latino folks, and funding their operations with the profits. Some law enforcement agencies derive almost 40 percent of their revenue from civil forfeiture, with virtually no checks or oversight.

In the East Texas town of Tenaha, the district attorney oversaw a particularly Dickensian operation: Local cops would stop out-of-town drivers on the flimsiest of pretexts to look for cash, DVD players, cell phones, anything of value. The DA would threaten drivers with criminal charges, even promising to have state authorities remove kids from parents unless they waived rights to the property.

A class-action lawsuit uncovered that the proceeds from this highway robbery—an estimated $3 million between 2006 and 2008—were paying for popcorn machines, donations to a local Baptist church and bonuses for law enforcement key to the operation. Meanwhile, the DA was handing out light sentences to those caught with drugs, or laundered money, in exchange for seizing their assets.

El-Ali chose to fight the seizure on fundamental grounds. Rather than mount an “innocent-driver” defense, El-Ali challenged the constitutionality of putting the burden of proof on him to prove his innocence. He lost at both the trial and appellate level, and the suit landed last year at the Texas Supreme Court. You’d think that Texas’ highest civil court—overseen by nine conservative Republicans—would be sympathetic to a case that turns so pivotally on property rights and the relationship between individuals and the state. After all, the court has adopted an increasingly fundamentalist view on property rights over the past decade. In rulings on the ownership of groundwater, the power of eminent domain and the right of access to public beaches, a majority of the court has embraced a view that enshrines private property rights as essential to “freedom itself,” as the court put it in one recent ruling.

But in El-Ali v. Texas, the court declined to review the case, pointing to a 1957 decision—the last time the court weighed in on civil forfeiture. The collective yawning of the majority didn’t sit well with three of the justices. Justice Don Willett, in a scathing dissent signed by two others, ripped his colleagues for punting. Willett bangs all the conservative gongs, quoting James Madison and Edmund Burke and opining that the case “evokes less Chevy than Kafka.”

“Forfeiture 2014-style is not forfeiture 1957-style 21st-century practice merits 21st-century scrutiny,” he wrote, noting that the vast expansion in the use of civil forfeiture occurred after the Legislature broadened the statute’s scope in 1989 to include a grab-bag of felonies and misdemeanors, and allowed cops and courts to split the profits. “In the quarter-century since, we have yet to revisit the protections due in such proceedings.

“A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”

There’s something beyond hypocrisy here. It’s not just that we live in a political moment in which Texas Republicans speak of little else than liberty, property rights and government overreach. It’s the sense that the state, particularly the criminal justice apparatus, as currently constituted, has become predatory, preying on the weak and forcing them to pay for it, too.