Asset Forfeiture

Front 1

Define: Proceeds

Back 1

property derived from an event or transaction,conviction of criminal offense not necessary

Front 2

Define: Seizure

Back 2

the restraint of property by a peace officer

Front 3

Define: Contraband

Back 3

means property of any nature, including real, personal, tangible or intangible, that is used in the commission of:

• 1st or 2nd Degree Felony
• Criminal Solicitation of a Minor
• Smuggling of persons
• Indecency with a Child
• Evading Arrest
• Robbery, theft, burglary, public indecent, fraud
• any offense under Ch. 49
• Any felony under the securities act

Front 4

Time limit to file to get seized property back

Back 4

30 days to file

Front 5

Philosophy: Proportionality

Back 5

The amount seized should be proportional to the crime ciommitted

Front 6

Philosophy: Extra Punishment

Back 6

No, forfeiture should never be used as extra punishment

Front 7

Jeopardy issues

Back 7

Do not want to be convicted and assets seized as it can cause issues in the appellate courts. Usually wait to seize after trial.

Front 8

Innocent Owner Defense

Back 8

Defense that the owner acquiredthe property before illegal act and owner did not know or should not reasonablyhave known of the illegal act before acquiring the property

Front 9

Seizure of Property must be sealed within

Back 9

72 hours

Front 10

Statutory Defense

Back 10

Innocent Owner Defense

• Owner acquiredthe property before illegal act and owner did not know or should not reasonablyhave known of the illegal act before acquiring the property
  

Front 11

Statutory Defense

Back 11

Family Violence Defense

• Only time community property in question
  
• Act of family violence prevented stopping the illegal act
  

Front 12

Statutory Defense

Back 12

Dismissal of Acquittal of Related Charges

• Raises the presumption that the property should not be forfeited
  

Front 13

Non-Statutory Defense

Back 13

Controlled Substance Analogue

• Denial that a substance is an analogue of a controlled substance
  

Front 14

Non-Statutory Defense

Back 14

Suppression of Evidence in Criminal Case

• defendant may try this, but the court should not grant
  

Front 15

Non-Statutory Defense

Back 15

5th Amendment

Front 16

Non-Statutory Defense

Back 16

Homestead

• Cannot take actual house in Texas

Front 17

Non-Statutory Defense

Back 17

Community Property

• Not a valid defense
  

Front 18

Non-Statutory Defense

Back 18

Legitimate source of Income

• Discovery beforetrial essential to establish supporting evidence
  
• When, where, howcheck negotiated
  
• Whether depositedand where and history before and since
  
• When converted tocash
  

Front 19

Forfeiture with Lien Holders

Back 19

An owner or interest holder’s interest in property may not be forfeited under this chapter if the owner or interest holder proves by a preponderance of the evidence that the owner or interest holder acquired the interest before or during the act or omission giving rise to forfeiture

Front 20

Forfeiture Proceedings

Back 20

• Civil Proceeding
• District Attorneymust begin proceedings within 30 days of your date of seizure
  

Front 21

Currency Procedure

Back 21

• Currency may be depositedin interest of bearing account
  
• In jurisdictionof state attorney
  

Front 22

Method of Seizure

Back 22

Without Warrant

• Owner, operator or agent knowingly consents
  
• Incident to search consented to
  
• Property subject to prior judgment of forfeiture
  
• Incident tolawful arrest, search, or lawful search incident to arrest
  

Front 23

Method of Seizure

Back 23

Probable Causefor Seizure

• Reasonable beliefthat a substantial connection exists between the property to be forfeited andthe criminal activity defined by statue
  

Front 24

Method of Seizure

Back 24

Exceptions toWarrant Requirement

• Plain view
  
• Emergencysearches (exigencies)
  
• Area withinimmediate control at time of arrest
  
• Safety sweep ofadjacent rooms
  

Front 25

Method of Seizure

Back 25

With Warrant

• Rules apply fromChapter 18 Code of Criminal Procedures
  
• Contrabandwarrant must also show in affidavit the specific felony offense committed andthe described property complies with the definition of contraband from 59.01