Danny Robbins with the Associated Press reports:
Authorities in a Texas county where a drug enforcement program was allegedly used to shake down black and Latino highway travelers are returning more than $100,000 taken during the traffic stops.
The stops in Tenaha, which often resulted in people being forced to hand over cash without any charges being filed, have led to multiple lawsuits and two federal criminal investigations.
District Attorney Kenneth Florence said Shelby County has dismissed all of its pending forfeiture cases, even those without a connection to Tenaha, in what he described as an effort to turn the page after an agreement was reached in August to settle a class action lawsuit stemming from the stops.
“I just don’t think you could get anything done with any of those cases,” said Florence, who was appointed by Gov. Rick Perry in August and is running for the post in next week’s election. “They are all tainted, so to speak.”
While this is good news, note that criminal charges against Tenaha police or the local Shelby County prosecutor have yet to be filed, and the county made far more in forfeitures than it is returning to victims:
An Associated Press report last year detailed how some of the stops also resulted in suspected drug traffickers receiving light sentences or escaping criminal prosecution altogether for giving up their cash. Those cases netted the county more than $800,000 in less than a year.
They were prosecuted by the county’s former district attorney, Lynda Kaye Russell, who retired at the end of last year. Russell has not responded to repeated requests for comment, and she asserted her Fifth Amendment right against self-incrimination for every question in a deposition for the class action lawsuit.
The money that remains with the county accrued from forfeiture cases that have languished because of competing claims or defendants who hadn’t been properly served with court papers, records show. It has been placed in the court registry until people can prove it’s theirs.
Luis Rivera, of Brockton, Mass., is among those who were notified that they have a possible claim to some of the remaining cash. He and a companion, both of whom are Puerto Rican, were arrested after being stopped four years ago in Tenaha for “following too close and failure to drive in a single lane,” records show.
Joe Krowski, an attorney for Rivera, said his client is pleased he may soon get his money but remains traumatized by the two days he spent in a Texas jail.
“All of a sudden, they take your possessions and stick you in a cell when you didn’t do anything wrong,” Krowski said. “How much scarier does it get?”
Barry Washington, the deputy city marshal who made the stop, took $6,160 as well as two vehicles — one Rivera was driving and another he was towing — on the premise that Rivera, 30, and his companion were in possession of a criminal instrument, records show.
Krowski said the charge was based on the unproven notion that the vehicle Rivera was towing, a Volkswagen beetle, had a secret compartment.
Washington, a former Texas state trooper, testified in his deposition that he believed all the stops were legitimate and that God had directed him to disrupt drug trafficking on U.S. Highway 59.
The abuses in Tenaha, along with the concurrent felony prosecutions of Jim Wells County Joe Frank Garza (misappropriation of 0ver $3 million in forfeiture funds) and Kimble County District Attorney Ron Sutton (took his entire office staff to Hawaii for a conference), spurred a reform effort in the Texas Legislature. SB 316, sponsored by Sen. John Whitmore, was passed by the Legislature and became Texas law on September 1, 2011. The Texas Courts Municipal Education Center describes this legislation:
In response to reports of abuse of asset forfeiture provisions when property is seized in connection with a controlled substance offense, the Legislature has provided stricter guidelines for the use of funds obtained through forfeiture actions and added language to close a loophole regarding the forfeiture process.
Current language prohibits a peace officer from obtaining a waiver of interest in seized property at the scene of a roadside stop. However, the language is inapplicable to attorneys representing the State. S.B. 316 amends Article 59.03 of the Code of Criminal Procedure extending the prohibition against obtaining a waiver of property interest prior to the filing of a civil forfeiture action to such attorneys. Notably, under Article 59.01 “attorney representing the State” includes city attorneys acting in a forfeiture procedure.
Subsections added to Article 59.06 of the Code of Criminal Procedure provide guidance on permissible uses for forfeited property and procedures for the disposition of such property. Under the new provisions, 40 percent is to be allocated to the seizing department, 30 percent to the prosecuting attorney’s office, and
30 percent to the general revenue fund. A list of prohibited uses is added to the article and includes: donations and political contributions, training and travel expenses, the purchase of alcoholic beverages, and payment of salaries for prosecutorial or law enforcement employees.
The bill also sets forth accountability procedures, including audits, designed to ensure the appropriate handling and use of seized assets. The Office of the Attorney General is authorized to seek injunctive relief and/or civil penalties not to exceed $100,000 per violation of Article 59.06.
Detailed reporting requirements concerning the use of forfeiture funds and an auditing process are also added to the Code. The new regulations will be effective on assets seized and expenditures made after the act becomes effective September 1, 2011.
Texas prosecutors, however, won some significant victories in the Legislature that undermined the effectiveness of the bill. In a “Note to DA’s on Asset Forfeiture Reform”, the Texas District & County Attorneys Association said last June:
One bill still pending in conference committee is SB 316 by Whitmire/Gallego. A conference committee report was issued in which all the House floor amendments—including the one giving the AG rule-making authority over your expenditures—were stripped out (except for one harmless change regarding the state auditor). Included in those “dead amendments” was language related to drug-related seizures by DPS troopers that was designed to encourage DPS to keep those cases in the state system. DPS has been working overtime to get that back in, and earlier today, the House rejected the conference committee and returned it to the Senate with a request that the DPS amendments be restored. This also opens up the bill to other amendments directed at one particular judicial district. However, what’s most important to note is how vital it was that we got the AG’s rule-making amendment repealed before the House sent the bill back to the Senate. If not for your quick action, that language would also now be in play again. So, once again, pat yourself on the back for a job well done—having to ride herd on that bad idea all weekend would’ve really spoiled our holiday!
In other words, while SB 316 went a long way to prevent the abuses of Tenaha, it would still be desirable to increase the rule-making authority of the Texas Attorney General forfeiture expenditures made by Texas law enforcement, and it would be desirable to pass legislation aimed at keeping Texas forfeitures in the state system. In the absence of the latter restriction, Texas law enforcement will just use the federal “Equitable Sharing” arrangement with federal law enforcement agencies to dodge the restrictions of state law on their power to seize and use cash and property with great discretion and little oversight. A further ideal reform would be to send forfeiture proceeds directly to the general fund for legislative appropriation, a check that do much to reconnect law enforcement priorities with democratic desires and accountability.