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Latest Forfeiture Ruling by SCOTUS: What Does It Mean for Texas Criminal Defense?

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Timbs v. Indiana is the first step in ending state-wide forfeiture abuse

In an opinion written by Justice Ginsburg with two concurrences filed by Justice Gorsuch and Justice Thomas, the Supreme Court of the United States (SCOTUS) vacated and remanded the judgment of the Indiana Supreme Court in Timbs v. Indiana on February 20, 2019.

There were no dissents.

For the background on this landmark forfeiture case, read our earlier discussion in: “Will Forfeiture Actions Be Held Unconstitutional? Scotus Hears Oral Arguments In Timbs v. Indiana.”

To read the opinion: Timbs v. Indiana, No. 17-1091 (U.S. Feb. 20, 2019).

The Timbs Opinion

This new precedent holds that the ban on excessive fines found in the Eighth Amendment applies to the states via the Fourteenth Amendment’s Due Process Clause.

From the opinion (emphasis added):

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” …

[T]he historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767 (internal quotation marks omitted; emphasis deleted).

SCOTUS found that the federal constitution’s Bill of Rights (Eighth and Fourteenth Amendments) bars Texas (as well as Indiana and other states) from depriving anyone “of life, liberty, or property, without due process of law” through a forfeiture proceeding.

What About the Argument that Forfeiture Is Different Than a Fine?

Indiana argued the constitutional ban against excessive fines involves monetary payments imposed as punishment.  Indiana argued that taking Mr. Timbs’ SUV was not a fine; instead, it was a forfeiture of property used to violate the state penal code.

There are two problems here.  First, Indiana did not argue this point at the lower court proceeding (i.e., before the Indiana Supreme Court).  So, SCOTUS declined to consider it in its evaluation.

Second, SCOTUS pointed out that the key issue before the High Court was the right of the individual to be protected from excessive fines, which has been regarded as a fundamental right.  There would be no delineation between property and money taken from the individual under the labels of “forfeiture” vs. “fine.”

The Timbs Concurrences

There were two concurrences filed with the Timbs opinion.  Both agree with the decision, but add their own twists to the case.

1.  Justice Thomas: Privileges & Immunities Clause

Justice Clarence Thomas explains that he would reach the same result — that the ban on excessive fines applies to the states – by a different route.  Justice Thomas sees the constitutional ban on excessive fines as “one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.” From Justice Thomas’ concurrence:

“But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”

2.  Justice Gorsuch: No Serious Doubt Regardless of the Vehicle

Justice Neil Gorsuch acknowledges Justice Thomas’ road to the same result, and then joins with the opinion.  In his concurrence, he explains that:

“I acknowledge the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause… regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.” 

Civil Forfeiture Proceedings and Convictions

The importance of this new SCOTUS Opinion lies in how it will impact the popular federal and state practice of civil forfeiture, where law enforcement takes money or property (like the Timbs’ SUV) based upon allegations that the property is either (1) proceeds of a crime or (2) has been used to commit a crime.

Civil forfeiture allows the government to sue the property itself in a civil court.  No criminal charge or conviction is needed here.  Criminal forfeiture also allows for the seizure of property; here there must be proof that the owner was guilty of committing a crime.

For more on forfeiture, read:

Forfeiture Victory For Police: They Can Seize And Keep Assets Even In An Illegal Search Says Texas Supreme Court.

Neither Criminal Charges nor Criminal Convictions Are Necessary

In the Timbs’ case, the defendant was convicted on a drug charge.  However, many forfeiture cases have police seizing assets without anyone being convicted of a crime.  Or even to be CHARGED with one.

Federal Law

Federal law does not require the property owner to be charged of a crime (much less convicted of an offense) before the government can seize his property in a forfeiture proceeding.

Texas Law

Currently, Texas law does not require a charge or a conviction before forfeiture, either.  Tex. Code Crim. Proc. Ann. arts. 59.01-.14 et seq.

However, several months ago, a bill was introduced in the Texas Legislature to require a conviction before the seizure of property by law enforcement in a forfeiture proceeding.  For details, read “Texas Bill Would Require a Conviction for Asset Forfeiture, Effectively Shut Federal Loophole,” written by Mike Maharrey and published by the Tenth Amendment Center on November 29, 2018.

Forfeiture is a Huge Source of Law Enforcement Revenue

The government arguments try and keep the focus on the criminal enterprises they are trying to combat, and the need to cripple huge operations with the taking of the property used to operate their nefarious businesses.

No one at the prosecutor’s table wants to discuss the man behind the curtain here.  What’s that all about?

It is today’s reality that forfeiture has become big business for many law enforcement agencies today.  There is a tremendous financial incentive to seize property in forfeiture proceedings as a way to keep the budget in the black.

Texas has way too many forfeiture cases being filed as an accepted revenue stream.  The cases are easy enough to win in court, even if the prosecution offers very little in the way of criminal wrongdoing to back up the forfeiture claim.

Why?  Civil forfeiture proceedings place the burden of proof on the defendant to show the court by a preponderance of the evidence that the property was NOT used in a crime in order to get his property back.

How Much Money Are We Talking About Here?  Over $50M Annually In Texas

According to the Office of the Attorney General for the State of Texas, from its 2017 Annual Report:

  1. Amounts forfeited to and received by agencies: $28,756,184
  2. Interest earned on forfeited funds: $383,603
  3. Proceeds from the sale of forfeited property: $3,187,372

Total for Law Enforcement Agencies: $32,327,159

  1. Amounts forfeited to and received by attorneys representing the state: $16,068,951
  2. Interest earned on forfeited funds: $230,988
  3. Proceeds from the sale of forfeited property: $1,519,146

Total for Attorneys Representing the State: $17,819,085

Total for All Agencies: $50,146,244

For more on Forfeiture as a Needed Source of Police Revenue, read:

Open Question: What is an “Excessive Fine” After Timbs?

Reading the Timbs Opinion is good news for those defending clients in Texas criminal courts.  However, one is quick to realize that SCOTUS has not answered a key corollary issue here:  what exactly is an “excessive” civil forfeiture?

In Timbs, the SUV was valued at over $40,000.  What if a future analogous situation arises in Dallas, but the SUV is only worth around $5000?  Then does Timbs change things?  Does the $5000 seizure constitute an “excessive fine” protected by the Eighth and Fourteenth Amendments? Maybe not.

Criminal Defense and Forfeiture Proceedings after Timbs

In Texas, the Timbs Opinion is good news.  It is a welcomed step towards ending the rampant abuse of law enforcement agencies in Texas (and across the country) that are taking property to meet their budgets even though the owner is not charged, much less convicted.

However, Timbs is a narrow ruling.  Most forfeiture proceedings will not be impacted by this case.  After all, the Timbs Opinion acknowledges its earlier ruling in Austin v. United States, 509 U. S. 602 (1993), where SCOTUS held that civil and criminal forfeitures are acceptable punishments under the law.

Timbs does not outlaw forfeitures.

Instead, Timbs holds that Texas cannot violate the excessive fines clause when instituting a civil forfeiture proceeding.

Another open issue that remains after Timbs involves defendants who do not pled guilty to a crime.  Mr. Timbs pled guilty to a drug charge.

What does Timbs do for all those people who are not convicted and do not plead guilty and face the loss of their property in a civil forfeiture lawsuit brought by the government?  Not much.

Little is provided in Timbs to help individuals who maintain their innocence in the face of police deciding to take their cars, guns, money, jewelry, phones, furniture, etc., under the argument that the property is involved in a criminal enterprise and having the local prosecutor thereafter file civil forfeiture lawsuits.

1.  Wrongful Forfeiture Cases over Past Seizures

Now, we can expect cases to be filed by victims of unconstitutional forfeiture actions and unacceptable property seizures in both federal and state courts, asking that their property be returned to them.

Timbs expands the basis for filing wrongful forfeiture actions in Texas. How successful these retroactive claims will be is unclear.

2.  Continued Forfeiture Actions by Police

We can also expect law enforcement agencies throughout the State of Texas to continue seizing property in forfeiture proceedings.  This will happen if for no other reason than the agency or police department relies on its forfeiture revenue to keep operating.  Timbs did not overrule Austin.

3. Fighting Against Future Civil Forfeiture Actions

Accordingly, Texas will see continued fights in civil courtrooms where criminal law must be relied upon by the property owner to show that the seized property was not involved in criminal activity.

Forfeiture fights will still be needed after Timbs.  Hopefully, judges will now be more vigilant in their scrutiny of these police seizures for profit.

For more on the overwhelming problem of forfeiture abuse in this country, watch the following video “Policing for Profit” by the Institute for Justice:



For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”





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