To the editor:

Response to Matt Giles: Asset seizure and forfeiture in Texas.

The law in Texas provides that law enforcement can seize the contraband of felony offenses. This includes any item that is used in the commission of the crime, proceeds from a crime, or items purchased with the proceeds from a crime. The logic behind this is that we do not want felons to reap the benefit of their illegal behavior. Seizures also act as a deterrent. A drug dealer may be less likely to transport drugs if he knows that his car is subject to seizure if he is caught transporting drugs in his car.

If the State seizes an item it believes is contraband, it must file a civil suit in district court and notify all interest holders within 30 days of the seizure. The case then proceeds like any other civil law suit, with motions, discovery, depositions (if necessary), hearings and ultimately a decision made by a judge or a jury at trial. If the judge or jury determines that the item is contraband (i.e. that it was used in the course of a felony crime, was proceeds of a felony crime or was purchased with proceeds from a felony crime), then the item is forfeited to the State. The State can then auction off the item and use the funds to support law enforcement.

The most frequent situations that lead to seizure and forfeiture are drug dealers having their cars seized (either because they were purchased with drug money or because they were used to transport drugs) and drug “mules” having their large stash of cash and car seized as they pass through our county on the way to purchased large quantities of drugs.

Frequently, seized cars are subject to liens. In those situations, the State is only allowed to seize the interest held free and clear by the offender. This is based on the idea that the lien holder is an “innocent owner,” not sharing in the culpability of the offender and therefore not subject to having assets seized. The exception is where the lien holder is in fact not an “innocent owner.” For example, if a car dealer sells a car to a known drug dealer, knowing that the car may be used to transport drugs and/or that car payments will come from the proceeds of drugs sales — the lien holder is not an “innocent owner,” and then the entire car is subject to forfeiture — even the portion still owned by the car dealer. If a lien holder knowingly accepts the proceeds from an illegal transaction to pay off a lien, then that is money laundering, a felony offense itself.

In most situations, the State “steps into the shoes” of the offender and attempts to forfeit the interest of the offender and protect the interest of the lien holder. If the offender held no interest in the property, such as if they were upside-down on their loan, then we return the property. When the property is a car, we charge storage and towing fees because we have sunk towing costs and the State may be liable for damage to the vehicle while impounded on our lot. The storage fees are insurance for that risk.

The law requires that the State maintain possession of the property until the conclusion of the suit unless a bond is posted to retrieve the property. In practical terms, it is important for the State to maintain possession of the property until the suit is concluded because otherwise no one’s property interests are protected in the meantime. For example, if an offender’s car is not impounded and the offender is sitting in jail, they may try to have a friend or family member sell the car to raise money to make bail. The fact that the car may be subject to a lien is not likely to influence a black-market transaction.

In the situation of which Mr. Giles complains, he sold and financed two cars (in two separate transactions) to a well-known drug offender who is now under indictment for seven felony drug offenses. This same offender had already served penitentiary time for dealing drugs and has almost no history of legitimate sources of income. Mr. Giles should have been on notice that the cars were contraband, and we therefore consider it quite generous to accept Mr. Giles’ claim of “innocent owner” in the first place.

In December 2007, local law enforcement seized the two vehicles as part of a large drug sting, and the vehicles were impounded on a secure storage lot. We filed our forfeiture suit in district court within the 30-day deadline and sent Mr. Giles notice. Mr. Giles filed an answer, which is simply a notice to us that he intends on asserting his ownership interest and that we have served the proper party with notice. Contrary to Mr. Giles’ contention, it is not just some paper he had to file to get his cars back; filing an answer is only the very first step in a civil law suit.

Mr. Giles notified us that both car notes were upside-down. He stated that the 1998 Cadillac was in default because the offender owed $3,900, was many months behind on payments, and the car was worth less than the lien. He also stated that the second car, a 1996 Buick, had recently been purchased by the same offender, and no payments had been made.

Detective Bruce Spruill immediately attempted to verify the information provided by Mr. Giles so that we could reach a quick resolution. This included determining the value of the vehicles minus the amounts of the liens. Detective Spruill spoke numerous times with the offender, who was in jail. The offender was adamant that although Mr. Giles was correct about no payments being made on the Buick, that Mr. Giles was misrepresenting the numbers on the Cadillac. The offender claimed that he had bought the Cadillac three years ago, and was within a few payments of paying the car off and could prove it. We returned the Buick to Mr. Giles and gave the offender reasonable time to have family members retrieve receipts to substantiate his claim. We also stopped the accrual of storage fees on the Cadillac in the meantime.

Ultimately, the offender was unable to have family locate the receipts, but he still maintains that he was close to paying off the Cadillac. As evidence, he asks why Mr. Giles would have financed another car to him (the same Buick seized) if he was so far behind on his payments on the Cadillac. We asked this same question to Mr. Giles multiple times and never received a convincing answer. In fact, Detective Spruill asked Mr. Giles this same question, and Giles responded that the offender had been behind on payments in the past, but had caught up. This substantiated the offender’s claim that Giles was not entitled to full ownership of the car.

The other matter of contention with the Cadillac was items added to the car by the offender in which Mr. Giles had no lien. In particular, the offender had added fancy chrome rims that he said he paid $7,000 for (along with tires) and added to the car — far in excess of the value of the car. The State was entitled to full seizure of those wheels, as Mr. Giles had zero ownership interest in them. We considered removing the rims, replacing them with factory-style rims and tires, and then selling the aftermarket rims at auction. However, once we learned that the offender could not retrieve his payment receipts we decided that it may not be worth the hassle of an auction and proposed to sell them to Mr. Giles as part of the settlement agreement. He accepted.

Contrary to Mr. Giles’ assertion, our office was continually in contact with Mr. Giles and his attorney about these cases. I personally played phone-tag with Mr. Giles over a multi-week period. The last remaining case was settled soon after receiving Mr. Giles’ letter on the matter, making it unnecessary to respond.

The matter of which Mr. Giles complains of is actually two settled law suits, one for each car. Mr. Giles was ably represented by a local attorney, and had every opportunity to either reach a different settlement agreement before trial or attempt to reach a more favorable outcome at trial. He chose to settle both cases, but now insists on complaining about our agreements and misrepresents the underlying facts. The State, and citizens of it, should continue to insist that felons do not reap the benefits of their crimes. We will continue to fight vigorously to seize contraband, even if it occasionally and unfortunately results in disagreement with a lien holder. If Mr. Giles is so aggrieved by his result, then one would wonder why he chose to settle the cases. And if he does not want the “struggle” of dealing with forfeitures, perhaps he should choose to not sell cars to known drug dealers.

Micheal B. Murray

District Attorney

Brown and Mills Counties