Justice in Tenaha and the Current State of Texas Forfeiture Law

Tuesday, August 7th, 2012

By Eapen Thampy, cross-posted at Americans for Forfeiture Reform (Facebook here).

Last Friday, the ACLU announced it had reached a settlement with officials in the East Texas city of Tenaha and Shelby County in a class-action lawsuit (Morrow v. City of Tehana, et al)  filed over some 140 traffic stops that resulted in illegal forfeitures of property by law enforcement. From the ACLU’s press release:

“…it is estimated police seized $3 million between 2006 and 2008 in at least 140 cases. Police officers routinely pulled over motorists in the vicinity of Tenaha without any legal justification, asked if they were carrying cash and, if they were, ordered them to sign over the cash to the city or face charges of money laundering or other serious crimes.

Almost all of the stops involved Black and Latino drivers. None of the plaintiffs in the case were ever arrested or charged with a crime. The seized assets were used to enrich the defendants’ offices and themselves.

“This was a brazen case of highway robbery, plain and simple,” said Elora Mukherjee, a staff attorney with the ACLU Racial Justice Program.  “Law enforcement needs to focus on protecting the communities they serve, not on policing for profit.  This far-reaching settlement radically alters how officers in Tenaha and Shelby County can go about their daily duties and protects all motorists driving along Highway 59.”

In May the Houston Chronicle reported on the worst of the extortions faced by motorists by the Tenaha police, which included threats to take children from their parents:

Authorities in a Texas town under investigation for allegedly shaking down motorists for their cash sometimes used the travelers’ children as bargaining chips in their attempt to seize money, records show…

“They basically said, ‘If you all want to leave without going to jail tonight and take your kids with you, then you’ll sign over your money right now,’” Jennifer Boatright, a Houston mother of two, said in an interview describing her encounter with local officials…

The involvement of children adds another element to a case that has especially troubled critics of civil asset forfeiture laws. Those laws allow authorities to seize cash or other property if they believe it’s linked to criminal activity, even in cases where defendants aren’t found guilty.

In two of the Tenaha incidents, authorities separated a small child from one couple pulled over in a traffic stop and threatened to do the same to another, according to case documents.

“This just shows how law enforcement can place the desire for profits above the interests of children,” said Scott Bullock, senior attorney for the Institute of Justice, a libertarian public interest law firm headquartered in Arlington, Va., that has studied civil asset forfeitures nationally.

CNN in 2009 reported on how some of the proceeds of these illegal seizures were used:

Daniels told CNN that one of the officers who stopped him tried on some of his jewelry in front of him.

“They asked me, ‘What you are doing with this ring on?’ I said I had bought that ring. I paid good money for that ring,” Daniels said. “He took the ring off my finger and put it on his finger and told me how did it look. He put on my jewelry.”

Texas law states that the proceeds of any seizures can be used only for “official purposes” of district attorney offices and “for law-enforcement purposes” by police departments. According to public records obtained by CNN using open-records laws, an account funded by property forfeitures in Russell’s office included $524 for a popcorn machine, $195 for candy for a poultry festival, and $400 for catering.

In addition, Russell donated money to the local chamber of commerce and a youth baseball league. A local Baptist church received two checks totaling $6,000.

And one check for $10,000 went to Barry Washington, a Tenaha police officer whose name has come up in several complaints by stopped motorists. The money was paid for “investigative costs,” the records state.

The abuses in Tenaha, along with the concurrent felony prosecutions of Jim Wells County Joe Frank Garza (misappropriation of 0ver $3 million in forfeiture funds) and Kimble County District Attorney Ron Sutton (took his entire office staff to Hawaii for a conference), spurred a reform effort in the Texas Legislature. SB 316, sponsored by Sen. John Whitmore, was passed by the Legislature and became Texas law on September 1, 2011. The Texas Courts Municipal Education Center describes this legislation:

In response to reports of abuse of asset forfeiture provisions when property is seized in connection with a controlled substance offense, the Legislature has provided stricter guidelines for the use of funds obtained through forfeiture actions and added language to close a loophole regarding the forfeiture process.

Current language prohibits a peace officer from obtaining a waiver of interest in seized property at the  scene of a roadside stop. However, the language is inapplicable to attorneys representing the State. S.B. 316 amends Article 59.03 of the Code of Criminal Procedure extending the prohibition against obtaining a waiver of property interest prior to the filing of a civil forfeiture action to such attorneys. Notably, under Article 59.01 “attorney representing the State” includes city attorneys acting in a forfeiture procedure.

Subsections added to Article 59.06 of the Code of Criminal Procedure provide guidance on permissible uses for forfeited property and procedures for the disposition of such property. Under the new provisions, 40 percent is to be allocated to the seizing department, 30 percent to the prosecuting attorney’s office, and
30 percent to the general revenue fund. A list of prohibited uses is added to the article and includes: donations and political contributions, training and travel expenses, the purchase of alcoholic beverages, and payment of salaries for prosecutorial or law enforcement employees.

The bill also sets forth accountability procedures, including audits, designed to ensure the appropriate handling and use of seized assets. The Office of the Attorney General is authorized to seek injunctive relief and/or civil penalties not to exceed $100,000 per violation of Article 59.06.

Detailed reporting requirements concerning the use of forfeiture funds and an auditing process are also added to the Code. The new regulations will be effective on assets seized and expenditures made after the act becomes effective September 1, 2011.

Texas prosecutors, however, won some significant victories in the Legislature that undermined the effectiveness of the bill. In a “Note to DA’s on Asset Forfeiture Reform”, the Texas District & County Attorneys Association said last June:

One bill still pending in conference committee is SB 316 by Whitmire/Gallego. A conference committee report was issued in which all the House floor amendments—including the one giving the AG rule-making authority over your expenditures—were stripped out (except for one harmless change regarding the state auditor). Included in those “dead amendments” was language related to drug-related seizures by DPS troopers that was designed to encourage DPS to keep those cases in the state system. DPS has been working overtime to get that back in, and earlier today, the House rejected the conference committee and returned it to the Senate with a request that the DPS amendments be restored. This also opens up the bill to other amendments directed at one particular judicial district. However, what’s most important to note is how vital it was that we got the AG’s rule-making amendment repealed before the House sent the bill back to the Senate. If not for your quick action, that language would also now be in play again. So, once again, pat yourself on the back for a job well done—having to ride herd on that bad idea all weekend would’ve really spoiled our holiday!

In other words, while SB 316 went a long way to prevent the abuses of Tenaha, it would still be desirable to increase the rule-making authority of the Texas Attorney General forfeiture expenditures made by Texas law enforcement, and it would be desirable to pass legislation aimed at keeping Texas forfeitures in the state system. In the absence of the latter restriction, Texas law enforcement will just use the federal “Equitable Sharing” arrangement with federal law enforcement agencies to dodge the restrictions of state law on their power to seize and use cash and property with great discretion and little oversight. A further ideal reform would be to send forfeiture proceeds directly to the general fund for legislative appropriation, a check that do much to reconnect law enforcement priorities with democratic desires and accountability.

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29 Responses to “Justice in Tenaha and the Current State of Texas Forfeiture Law”

  1. #1 |  Danny | 

    This is Texas.

    Texas is blood-red.

    Texas is not blue.

    Texas is what you get when Team Red gets everything it wants.

    Does this signify anything to anybody?

    Or are the non-smoking restaurants and the calorie counts on menus in “Team Blue America” every bit as bad in your eyes?

  2. #2 |  Eapen Thampy | 

    I don’t understand what you are saying.

  3. #3 |  Salvo | 

    So…I don’t see anything in there about them having to return the stolen money. I certainly hope that was part of the settlement.

  4. #4 |  Cbalducc | 

    The town’s name is spelled “Tenaha”. God bless.

  5. #5 |  egd | 

    #3: Probably not. But I’m sure the ACLU got a hefty percentage of the settlement. Justice served…I guess.

    Class action lawsuits are a blight.

  6. #6 |  celticdragonchick | 

    Class action suits have a better chance of success then a couple dozen motorists trying to sue individually.

  7. #7 |  Me2 | 

    The only 2 reforms I can imagine which would make Civil Asset Forfeiture laws acceptable:
    1. ONLY assets proven to be acquired with funds which were proven to be illegally obtained (i.e. proven drug profits were used to buy gold ring) should be subject to forfeiture. No conviction, no forfeiture. Period.

    2. ALL of the money obtained through asset forfeiture is to be destroyed. Period. No agency is to be reimbursed for any money spent investigating, pursuing, or housing criminals with this money. They are paid by taxpayers to do all of these things, not criminals.

    Giving money obtained by illegal means to any part of the state will inevitably lead to corruption. Even if it didn’t (enormous ‘if’), it would still mean that they are profiting from illegal activity. Destroying the money is the only way to give it directly, and evenly back to all citizens by means of (hopefully) reduced inflation. Maybe my reforms sound stupid, but I can’t see forfeiture laws being acceptable without AT LEAST these two restrictions.

  8. #8 |  Charlie O | 

    And not one single friggin’, thieving asswipe cop from Tenaha will spend a single day with TDCJ.

  9. #9 |  Eapen Thampy | 

    Oh yes, forgot to mention that. No one has been prosecuted as a result of Tenaha yet.

  10. #10 |  Yizmo Gizmo | 

    Too bad the Founding Fathers couldn’t predict this.
    Maybe something like “nor shall private property be taken for public use, without just compensation” should have been thrown into some official
    document. You could call it the “Bill of Rights” or something.

  11. #11 |  Deoxy | 

    ALL of the money obtained through asset forfeiture is to be destroyed. Period.

    snip

    Destroying the money is the only way to give it directly, and evenly back to all citizens by means of (hopefully) reduced inflation.

    This is exactly what I was coming to post.

    And to Danny: OK, I’ll blame Texas on “Team Red”… and Chicago on “Team Blue”.

    Chicago, the murder capital of the world. Chicago, home of “the Chicago Machine”, synonymous with corruption throughout the US at least.

    You really want to go there?

  12. #12 |  Eapen Thampy | 

    You know, this is an interesting suggestion. Most authors merely advocate that proceeds of legitimate forfeitures can have legitimate purpose if sent to the general fund for the legislature to appropriate. I don’t know if there is any authority who advocates that the proceeds of legitimate forfeitures simply be destroyed.

  13. #13 |  Leon Wolfeson | 

    @12 – When items of personal but not monetary value, for instance, are destroyed there’s NO way to get them back. You’ve just given the police a powerful new tool to use.

    My view is and remains that only on conviction (and not a plea bargain either, conviction) is the only way in which “proceeds of crime” orders should be made.

  14. #14 |  Deoxy | 

    Only money should definitely be destroyed, but yes, of course, I agree “only on conviction” is a necessary change as well.

    Of course, if it had to be destroyed, I think the incidence of forfeiture abuse would fall to almost nothing, anyway, at least for actual cash.

  15. #15 |  Dante | 

    With regard to Me2′s idea that the funds be destroyed, I’d love to see anyone attempt to do this. I’d love to see a national campaign for this.

    The howling, angry shriek from law enforcement (accompanied by lies, violent threats and other intimidations like “save the children”) should serve notice to all that the one true focus of law enforcement has become seizing money, and to hell with anything/anyone else.

    Protect & Serve (Themselves!)

  16. #16 |  MikeV | 

    How about giving away all the seized money in small amounts, like say $100 max, in a yearly lottery of all state residents except police or prosecutors?

    That way, police or prosecutors would have no financial stake, and no one else would have a very big one.

    That would probably be easier to sell than just destroying the money.

    And the money could only be seized after conviction for a crime, of course. I have never understand how anyone who has read the Fourth Amendment could believe these seizures are legal.

  17. #17 |  Eapen Thampy | 

    I’ll write a future post about the history of the Fourth Amendment and the emergence of asset forfeiture.

  18. #18 |  BamBam | 

    @14 I have never understand how anyone who has read the Fourth Amendment could believe these seizures are legal.

    The mullahs in black robes declared it legal, so that is all that matters. It has nothing to do with sensibility, and everything to do with corruption and power and AUTHORITY to send a message.

  19. #19 |  BamBam | 

    ugh @16

  20. #20 |  Jeff R | 

    Am I the only one who thinks that requiring seized property to be destroyed would only result in more overt corruption and the direct lining of pockets with the “destroyed” cash?

  21. #21 |  Crooked In Texas - INGunOwners | 

    [...] Took a while but the ACLU finally reached a settlement with the robbers. Too bad it didn't result in public flogging and prison for them and their enablers. Hope all the people they stole from go their money back with interest. Justice in Tenaha and the Current State of Texas Forfeiture Law | The Agitator [...]

  22. #22 |  Aresen | 

    Jeff R | August 7th, 2012 at 7:36 pm

    Am I the only one who thinks that requiring seized property to be destroyed would only result in more overt corruption and the direct lining of pockets with the “destroyed” cash?

    Bingo. I suspect that the shredders and incinerators would be fed big blocks of paper that looked like banknote bundles.

    And the LEOs would suddenly all be taking trips to Lichtenstein every few months. (Lichtenstein bankers make Swiss bankers look like loud blabbermouths.)

    Direct comment on the Tenaha case: The only ‘justice’ would have been if the LEOs had been forced to 1) Return all the money to the victims and 2) Forced to apologize to the victims at the exact spot where the extortion occurred at a time previously announced to the public.

  23. #23 |  Solomon | 

    There should definitely be a conviction prior to asset forfeiture, but I have to admit the destruction of the seized property does have a certain appeal. I just don’t have any confidence that the destruction would actually occur.

    Maybe I read too many comics as a kid, but I would really enjoy reading about a “Punisher” type vigilante who drives around with piles of cash and then cuts off the hands of the highway robbers.

  24. #24 |  Jim | 

    Why in the @#$@ are people TELLING the cops they have cash?!?! Shut yer yaps!!

  25. #25 |  Arthur | 

    @24

    Because, most people still believe that LEO’s are mostly good people who are passionate about rule of law and protecting the public…that if you are not doing anything wrong you have nothing to worry about…etc. Perhaps painting the Jolly Roger on the side of all their vehicles will help educate the public.

  26. #26 |  Jim | 

    An excellent idea, that.

  27. #27 |  Deoxy | 

    Am I the only one who thinks that requiring seized property to be destroyed would only result in more overt corruption and the direct lining of pockets with the “destroyed” cash?

    Overt corruption is preferable to what we have now – at least then, everyone agrees it’s wrong (but people do it anyway… like, say, murder – welcome to humanity).

  28. #28 |  Me2 | 

    @13 – If by ‘items of personal but not monetary value’ you mean something like a photo album, then I see your point. However, because personal items have no monetary value to anyone but the original owner, they aren’t as vulnerable to seizure since there’s nothing law enforcement can gain from it -other than petty vindictiveness.

    To clarify though, obviously hard assets seized (vehicles, jewelry, etc.) would still need to be auctioned off, the actual proceeds from which would be destroyed. So right off the bat, there’s a potential for abuse related to the auction, but that’s the case even now whether or not the money is destroyed. Then, Jeff R, brought up the other area for abuse, the actual destroying of money. I agree that that’s definitely a vulnerability in this scheme, but I’d still prefer to have that problem than what the current scheme permits since, as it is now, when law enforcement receives this money it’s all legal. Under a ‘destroy it all’ scheme, in order for law enforcement to receive any of this money, they’d still have to break the law to get it. Also, none of the money has to be actual cash. It could all be sent into a bank account whose balance is deleted. That’s another point for abuse, but again, it still requires someone in government to break the law. A better problem to have in my opinion.

  29. #29 |  egd | 

    @6: What do you mean by “success”?

    Even in the class action, the motors likely didn’t get their money back and only the ACLU came out ahead – to the detriment of local taxpayers.

    There are better ways to challenge forfeiture laws than class action.

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