HB0340/SB0362 – Civil Asset Forfeiture reform – Daniel/Niceley
(1) This bill requires a seizing officer to submit, within 24 hours of making a seizure, the following to the district attorney general for the jurisdiction in which the seizure was made:
(A) A copy of the Notice of Forfeiture Warrant Hearing or Notice of Seizure; and
(B) A report detailing the underlying circumstances of the seizure, including the legal and factual basis on which the property is subject to forfeiture.
(2) This bill requires the district attorney general to review the information provided by the seizing officer pursuant to (1) above prior to the forfeiture warrant hearing and, if the district attorney determines there is no probable cause to justify forfeiture, to file a motion to dismiss the application for forfeiture warrant with the court in which the application is set to be heard. Upon receiving a motion to dismiss the application for a forfeiture warrant, the court must dismiss the application without convening a forfeiture warrant hearing. Upon dismissal, the seized property must be returned.
(3) This bill prohibits a local or state law enforcement agency, including a judicial district drug task force, from referring, transferring, or otherwise relinquishing possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property's forfeiture under the federal Controlled Substances Act. This bill also prohibits a local or state law enforcement agency, including a judicial district drug task force, or participant in a joint task force or other multijurisdictional collaboration with the federal government from accepting payment of any kind or distribution of forfeiture proceeds resulting from a joint task force or other multijurisdictional collaboration unless the aggregate net equity value of the property and currency seized in a case exceeds $100,000, excluding the value of contraband.
This bill specifies that the above provisions do not restrict a local or state law enforcement agency, including a judicial district drug task force, from acting alone or collaborating with a federal agency or other agency to seize contraband or property a law enforcement officer has probable cause to believe is the proceeds or instruments of a crime that subjects property to forfeiture. This bill further specifies that the above provisions do not prohibit the federal government, acting without the involvement of a local or state law enforcement agency, including a judicial district drug task force, from seizing property and seeking forfeiture under federal law.
(4) Generally under present law, in order to forfeit any property or any person's interest in the property, the state has the burden to prove certain elements by a preponderance of evidence. Also, under present law, the party aggrieved by the decision of the applicable agency may seek judicial review of the decision by filing a written notice of review, and the reviewing court must use the preponderance of evidence standard in determining whether to sustain or reverse the final order of the applicable agency.
This bill changes the required standard of proof in the provisions described above from "a preponderance of evidence" to "clear and convincing evidence".
Favor: We feel that any confiscation of personal property without due process is a violation of constitution and God-given property rights. That it is continued out of greed, not respect for the law.
TLRC Observed Process
This bill was fought hard for by the house sponsor, Rep. Martin Daniel. Many representatives of freedom-loving groups came to the capitol to argue in favor of the bill and to try to reach language that would be acceptable to all concerned. But law enforcement agencies lobbied hard against these reforms. Shame on them, and shame on the members who were more persuaded by law enforcement, who profit handsomely from the unlawful practice, instead of their own good sense of right and wrong.
When it was abundantly clear that the votes were not there, the sponsor took it off-notice but promises to bring it back in 2020.