By Jennifer Hebert
Assistant District Attorney in Brazos County
When it comes to asset forfeitures, planning is the key to success. It sounds simple enough, but with the new discovery rules (effective January 1, 2021) and a mere 30-day filing deadline, the challenge of successfully prosecuting forfeiture cases has grown. Prosecutors are already juggling chaotic schedules with packed dockets (and backed-up dockets due to COVID-19) and crazy trial schedules, and law enforcement agencies are overloaded with detectives who can hardly keep up with the workload. So with all of these challenges, the question is, how can you successfully manage a forfeiture docket?
While there isn’t an answer that works for everyone, each prosecutor has to find an efficient strategy or system that works for the individual situation. What works in one office or for one prosecutor may not work for someone else. For me, it took some trial and error to figure it out. Even now, my process is not perfect, but it has greatly increased my asset forfeiture productivity and resulted in resolving cases at a much faster pace, most times without a trial, while still being conservative in my approach to what gets filed. In general, three things have been key:
1) knowledge of the civil rules,
2) education and training with law enforcement, and
3) having a plan and staying organized.
Knowing the rules
Let’s start with the basics. What is asset forfeiture? Asset forfeiture is a means by which law enforcement can legally take contraband from criminals through a civil process. Contraband is defined by Texas law as property of any nature (including real, personal, tangible, or intangible) that is used or intended to be used in the commission of, proceeds gained from the commission of, acquired with the proceeds of, used to facilitate, or intended to be used to facilitate the commission of various enumerated felonies and certain misdemeanors.[1] Generally, we are talking about first- or second-degree felonies, any felony under the Health and Safety Code, or fraud types of crimes, but the list is extensive. In essence, the entire purpose of the asset forfeiture process is to deprive criminals of the profits of their crimes and take away the instrumentalities of their crimes to eliminate their ability to continue to participate in criminal activities. Because asset forfeiture is a civil process, the Texas Rules of Civil Procedure apply.
Many prosecutors (and in my experience, most defense attorneys) don’t know the Texas Rules of Civil Procedure. They may be a bit hesitant (maybe even a little afraid) to learn them because they are complicated and new. In this regard, I admit I have a bit of an advantage: I practiced as a commercial litigator for more than seven years before making a career change. But anyone can learn them, and if you are working forfeiture cases, you absolutely must.
Knowing the civil rules also requires knowing how to use them effectively. It’s a different world from the criminal side. For example, did you know that the State can seek discovery from the respondent in an asset forfeiture case? You can.[2] Specifically, you can ask for any information and documentation[3] relevant to the issues in the case. You can even ask specific questions relating to the case that have to be answered under oath.[4] Do you want the respondent’s bank account records? You can ask for them. Do you want to know where the respondent has worked for the last few years? You can ask, and if the respondent refuses to provide documents and information, there are consequences (i.e., motions to compel, sanctions, and even attorney’s fees).[5] Knowing how to ask for these things and doing it correctly can make our job much easier and more efficient.
Did you know you can also depose the respondent[6] and even call the respondent as a witness at trial? Odd, right? Simply, the limitations of criminal cases don’t apply in civil cases. If the respondent pleads the Fifth, you can actually use it as substantive evidence in the forfeiture case. And if he refuses to answer Requests for Admission,[7] they are automatically deemed admitted[8] and can be used as substantive evidence for trial and any pretrial motions such as a Motion for Summary Judgment.[9] Did you know that a prosecutor can ask the court to grant a judgment based on those admissions and the testimony of the investigating officer through an affidavit? You can.
For the record, I’m not saying we should seek to depose every respondent or seek every record potentially in the defendant’s possession in civil asset forfeiture cases. But knowing that it is possible is important, and knowing when to do so is even more important. Also keep in mind, however, that the same rules apply for the defense. The respondent has the same opportunity to depose State’s witnesses and seek discovery. So read the rules, know the rules, and use the process wisely.
Also important to note is that, as of January 1, 2021, the civil discovery rules have changed with regard to expedited actions (i.e., cases with less than $250,000 at issue).[10] For many of us, the vast majority (if not all) of our forfeiture cases will fall into the expedited actions category, so now we have one set of rules for cases filed before 2021 and a new set of rules for cases filed on or after January 1. These new rules, which the Texas Supreme Court approved based on the advice of an advisory committee and after a period for public comment, govern discovery deadlines and even change how initial disclosures are done. You will need to read them carefully,[11] but the biggest changes are set out below:
1) The discovery period starts 30 days after initial disclosures are due. While disclosures are mandatory in most cases and due 30 days after the filing of the first answer, forfeitures are excluded from mandatory disclosures under the new rules. Previously, prosecutors just had to send a request for disclosure to the respondent. Now, however, we have to ask for a court order to start the discovery period and get initial disclosures from the respondent. I recommend alerting the court staff before filing this motion for the first time because it will be something judges have likely never seen before. Also keep in mind that this exception for forfeitures serves an important purpose: It keeps the State from having to turn over information vital to the ongoing criminal investigation before that investigation is final. So be aware of the progress of the criminal investigation and wait to ask for disclosures until it is safe to do so.
2) The discovery period also ends 180 days after the first initial disclosures are due. This is a significant change from the prior rule, which set the deadline for discovery at 180 days after the first request for discovery of any kind is served on any party. Ultimately, this means prosecutors need to have discovery ready to go on the day the disclosures are due so that we have time to get responses, send follow-up requests (if needed), and schedule depositions before time runs out.
3) Parties must also now automatically disclose additional information 30 days before trial, including the names and contact information for witnesses, an identification of all documents and exhibits, and summaries of other evidence which the party expects to offer and those that the party may need to offer “if the need arises.”
Read the full text of Texas Rules of Civil Procedure 169, 190, 194, and 195 thoroughly as there are additional changes as well.
Teaching and training
Now that we are familiar with the civil rules, what else can we do to move these cases more quickly and make our lives easier? For me, I have found that training with the law enforcement agencies I work with on a regular basis makes our jobs much easier. It also fosters positive relationships and better communication. If they know what I want up front and understand why I ask for certain things, they are generally more than willing to take the extra steps to get me the information I need (not to say that they don’t ever grumble about it). Ultimately, it saves them time and results in fewer court appearances.
As part of this training, I make sure they understand the timelines involved and what information I need before I can even consider filing the petition. Each of the agencies I regularly work with also have set forms they use so they don’t miss any of the basic necessary information (i.e., the date and location of the seizure, the identity of the owner, any other party in possession or essential to the proceedings, any lien holders, and identification of the relevant criminal charges). I also give them guidelines on what I need to see in their affidavits (more on that below), most importantly that they connect the dots and clearly demonstrate that the funds or property seized are the instrumentalities of crime. Because most of our forfeiture cases are drug-related, there are certain factors the affidavits need to focus on:
• the proximity of the money to the drugs;
• the presence of drug paraphernalia consistent with drug sales (e.g., scales, baggies, and drug ledgers);
• when dealing with property, the proportionality of the volume and value of the drug to the value of the property seized;
• was there a canine alert on the currency (or other property such as gold, jewelry, etc.) indicating a connection between the drugs and currency?;
• any suspicious activity consistent with drug sales;
• any undercover buys or confidential informant (CI) tips;
• the amount of money and why that amount or the types of currency are relevant;
• alternative sources for the money or property;
• the storage method and location of the cash or property;
• bank records and records from other cash management accounts such as Venmo or CashApp (which can be a treasure trove of valuable information); and
• cell phone records, pictures, and text messages.[12]
I talk to them about why it is so important that their affidavits are done correctly and contain all of the information I need. I can admit (and the officers I work with regularly will tell you) that I am a stickler for proper formatting and grammar. As a former commercial litigator, the importance of not missing even a single improperly placed comma was drilled into me. Those lessons stuck because I have seen firsthand that how we present cases at the very first opportunity truly makes a difference in how our judges perceive us and our cases. Officer affidavits are the first (and sometimes only) substantive piece of information judges see about forfeiture cases. At least in Brazos County, the vast majority of our asset forfeiture cases are resolved without a trial, either through a default judgment or summary judgment, meaning judges do not hear testimony or see exhibits in these cases. As a result, the officer’s affidavits must be done correctly so that they provide all of the information necessary to prove our case in its entirety from the beginning. This means making sure that they are not only sound factually, but also well-written and properly edited.
It may sound trivial, but ultimately, the more well-written and compelling the affidavits are, the more we show our judges that we take these cases seriously and ensure we are seizing funds only where appropriate. So after we talk about the why, we also talk about the how, and I give them the following basic guidelines:
1) All affidavits should be written by the seizing officer in first person and based on direct knowledge. Sometimes we even need a second affidavit from another officer if the officers were involved in different vital parts of the seizure (e.g., one conducted the search and found the money and drugs, and one interviewed the defendant). This ensures that the affidavit is admissible in later proceedings such as a Motion for Summary Judgment and prevents having to get a new affidavit later in the case. Previously in Brazos County, a patrol officer might conduct a traffic stop that turned into a forfeiture. An investigator would then take over and write the forfeiture affidavit based on the patrol officer’s report. While this works for criminal probable cause statements, it does not work in a forfeiture case because an affidavit written in this manner is entirely hearsay and inadmissible in summary judgment proceedings. We would then have to get a second affidavit if we wanted to file for summary judgment, requiring extra work months or even years down the line when memories are not as clear.
2) Affidavits should avoid hearsay unless subject to an exception such as excited utterances or statements against interest.
3) Affidavits should include what I call a “yay, me!” paragraph—in other words, a section that details the officer’s expertise in the areas relevant to the case. For example, if it’s a drug case, the officer should highlight his or her expertise in narcotics, including both training and experience. It is vital that judges know that the conclusions reached and opinions given by seizing officers are based on actual training and experience. This is the State’s chance to prove it.
4) Keep it as simple as possible, and avoid acronyms and abbreviations that are not commonly known. I always use my husband as an example here. He works for NASA. Anyone who knows someone who works for NASA knows that employees speak in acronyms and codes. I literally have no idea what he is saying half the time when he talks about work. Our judges are the same way when officers use police terms. Sure, we prosecutors know what a CI is or the various ever-changing slang terms for drugs, but we cannot assume that judges know. We must be clear so there is no question about what is meant.
5) Remember it is all public record. Officers tend to forget that everything filed in an asset forfeiture case is open for the public to see, so we have to be very careful about disclosing information that we do not want public just yet. Given the quick time frames in forfeiture cases (a mere 30 days), many times our criminal cases have not been indicted and may still be in the active investigation stage. In these instances, we must be very careful not to disclose information that could harm the open investigation in any way.
6) Be sensitive about names and witnesses. Again, because everything is a matter of public record, we must be very careful about including informants’ names or identifying information. In general, unless it is absolutely necessary, I ask officers not to include confidential informant information in forfeiture affidavits. The same is true for other civilian witnesses. We certainly do not want to put these witnesses in a dangerous situation.
7) Stick with facts and reasonable conclusions that relate to the case. Do not speculate and do not include unconfirmed rumors. This sounds like basic common sense, but it can be tricky.
8) Copy edit for grammar and punctuation.
9) Finally, submit the affidavit for review and approval no later than 15 days after the seizure. This deadline lets prosecutors work through any potential issues well before the filing deadline and prevents having to refuse a case at the last minute for reasons that could have been fixed if they’d been found earlier. It also allows prosecutors to calendar the filing deadline and monitor any possible conflicts, such as all-encompassing trials or vacation dates, so that we do not miss a deadline because I’m unavailable when the paperwork comes in at the last minute.
Potential defenses
Knowing what goes in the affidavit is absolutely important, but just as important is knowing what to look for that could lead to a legitimate defense to the forfeiture. For that reason, we also talk about defenses to forfeitures and what officers need to look for on the front end so we are not improperly seizing funds. Does the respondent have a legitimate job? Could the funds be from that job? The Texas Workforce Commission can be a great source of information in this regard, but we also should not disregard basic detective work (gasp, actually talking to witnesses such as alleged employers). Does the property belong to someone else who may not know what his or her property is being used for? I work in a college town, and this can definitely be an issue with college students, but it can come up with adult children and other family members. Ultimately, we need this information up front to prevent unnecessary work from everyone involved.
Finally, I finish every training session answering questions and making sure officers have my contact information (email and phone numbers). If they have questions at the time of the seizure or any other time, they can call or email and ask. I would much rather they ask questions and make sure we are all on the same page from the beginning. We all know that it is much easier to work through a case and resolve potential issues with 25 days until the deadline than it is the day before the filing deadline.
Have a plan and stay organized
When it comes to managing asset forfeitures, consistency is important. But having a plan doesn’t mean always sticking to a set routine when it comes to forfeitures. Every case is different, and some require a completely fresh approach. That said, having a general concept in mind for how cases should flow helps tremendously. My case flow generally looks something like this:
1) Review initial affidavit.
2) Make any necessary revisions and ask follow-up questions.
3) Approve final affidavit.
4) Once paperwork is received, file the case.
5) Make sure the respondent is served (this one can be tricky and time-consuming).
5a) If no answer, file a default judgment.
5b) If an answer is filed, send discovery.
6a) If discovery isn’t answered, file a Motion for Summary Judgment based on the affidavit and deemed admissions.
6b) If discovery is answered, evaluate the case for settlement purposes or to see if summary judgment may still be appropriate.
7) If no settlement or summary judgment, ask for a trial.
Throughout this process, I keep track of everything in a spreadsheet and put all filing and discovery deadlines on my calendar. Calendaring of discovery deadlines will be even more important under the new discovery timelines so that prosecutors do not inadvertently miss deadlines and impede our ability to fully investigate and prove cases.
Conclusion
At the end of the day, prosecutors must see justice done. The same applies in asset forfeitures. Forfeiture funds can do a lot of good in our communities, but we cannot abuse the system. We must be conservative in our filings and use the forfeiture system for its intended purpose. We must remember that the process is available to take away the instrumentalities of crime to reduce crime in our communities and be careful not to allow forfeitures to become punitive in nature.
Endnotes
[1] Tex. Code of Crim. Proc. Art. 59.01.
[2] Tex. Rules Civil Proc. 190–204.
[3] Requests for production, Tex. Rule Civ. Proc. 196.
[4] Interrogatories, Tex. Rule Civ. Proc. 197.
[5] Tex. Rule Civ. Proc. 215.
[6] Tex. Rule Civ. Proc. 199.
[7] Tex. Rule Civ. Proc. 198.
[8] Tex. Rule Civ. Proc. 198.2(c).
[9] Tex. Rule Civ. Proc. 166a.
[10] Tex. Rule Civ. Proc. 169.
[11] Tex. Rules Civ. Proc. 169, 190, 194, and 195.
[12] See, e.g., Antrim v. State, 868 S.W.2d 809 (Tex.App.—Austin 1993, no writ).