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Texas Senate Bill 316 sent to Gov. Perry

On June 3, 2011, in federal, states, by Eapen Thampy

Today’s San Antonio Express-News:

Senate Bill 316, now awaiting Gov. Rick Perry’s signature, calls for prohibiting use of the funds to buy certain items, including alcohol, and restricting their use for travel.

It also would bolster auditing provisions, empower the attorney general’s office to prosecute fund abuses and limit the ability of lame-duck prosecutors to spend the funds held by the offices.

Special provisions for the 198th Judicial District were added by state Rep. Harvey Hilderbran, R- Kerrville, because of spending abuses by former prosecutor Ron Sutton.

They include obtaining approvals for any fund spending by either a three-member panel of officials appointed by the state representative for the majority of the counties in the district, or from each of the district’s five counties.

Sutton pleaded guilty last year to two counts of reckless misapplication of fiduciary property for using the seized assets to send staffers and their wives to professional conferences in Hawaii, and for staff bonuses.

The bill, as I read it, would prohibit police from requesting or compelling people to sign papers relinquishing or denying their property right interest in seized property, a strategy used to take cash and valuables from hundreds of black and Hispanic people traveling through the city of Tehana, Texas (also see this Institute for Justice press release). Joseph Adams at Right on Crime has further commentary on SB 316.

Notably, the bill fails to disconnect the perverse incentive structure that emerges when law enforcement is allowed to directly retain seizure money. Because these funds are fungible (and I do not read a requirement in SB 316 that forfeiture funds be treated as non-fungible) law enforcement may be able to continue to divert these funds in a variety of ways for discretionary use outside of legislative or appropriative purview. Most likely, Texas will see a rise in the number of seizures that are simply taken by Texas law enforcement to a federal agency for a cash or equipment payout through the “Equitable Sharing” programs at the Department of Justice or the Treasury to avoid the greater restrictions imposed by Texas law. In fiscal year 2010, the Department of Justice reported Equitable Sharing payouts of $40.5 million to Texas law enforcement agencies, a $16 million increase from 2009′s take.

It is vital that Texas legislators in the future look to reasserting appropriative control of these funds, as there is simply no reason why law enforcement should retain them directly. If taxpayers want to pay for law enforcement, they will express those desires through the decisions they make in selecting legislators and through ballot initiatives. Otherwise, citizens will be faced by (are being faced by!) law enforcement protocols and practices that are overly intrusive and designed to be revenue-enhancing and often conflict with the very notions of law and order that law enforcement is supposed to represent.

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