The agency seized cash and a car. Before I had time to file a petition, an attorney called and we have agreed on a settlement. The attorney would like to save on court costs and asked if we could sign some sort of agreement without actually filing a case. I have been told in certain civil cases the parties can sign a release stating in lieu of filing a case. . . .
Since the claimant has an attorney can I do that in this situation? I would feel uncomfortable if the complaint was pro se, but since she has an attorney, I am thinking it is okay. Has anyone ever done something like this? Do you have a form for this situation?
Absent a chapter 59 filing, you probably have a "roadside" transfer which Ch 59 strictly forbids. File your case, do an agreed judgment.
59.03(d) states "A peace officer who seizes property under this chapter may not at the time of seizure request, require, or in any manner induce any person, including a person who asserts an interest in or right to the property seized, to execute a document purporting to waive the person's interest in or rights to the property."
Wouldn't my situation be different? My situation does not involve a peace officer or any state agent approaching the complainant to waive her rights. Here, a private practicing attorney representing the complainant approached the state with a settlement offer and the state is willing to agree to the offer. Since the initiation was on the part of the complainant and the settlement offer was her suggestion, isn't this different?
I think you can do it with a settlement agreement. This is no longer a roadside-peace officer situation, especially since an attorney is involved. If the car title is changing hands make sure all the transfer paperwork is completed since there will be no court order involved. I have a form used in civil cases generally; e-mail me at email@example.com and I will send it to you.
Absent a judicial pronouncement that the property/vehicle/firearm is "contraband"--I don't believe that you can ever have a forfeiture. If you get a waiver of interest in the property and never file a forfeiture proceeding--you have abandoned property which goes to the county general fund after a property hearing.
My advice is to just file the petition, get an agreed judgment, and pay the filing fees if the cash is of a sufficient amount. Our district clerk does 10 forfeiture suits for every 1 that we are actually required to pay court costs on.
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