One of our local officers here arrested a guy last night for POM and seized $108 that he saw him hide under his kid's swimming pool (he consented to a search before running out the back door and hiding the money). The guy signed a statement saying that he made the $108 by selling dope. Now the officer is telling me I have 72 hours to do a seizure affidavit so they can have the money. Can someone point me in the right direction??!!! I'm wondering if this officer knows what he's talking about...

You have 30 days from the date of seizure to file for asset forfeiture. The court costs will be more than the money you seize. Perhaps you could seize it as evidence and ask the defendant to convert it to fine money.

In the 8-9 years I have been county attorney, I have never had a case where there was anything worth making the effort to seize, or if there was, there was no authorization to do so with the crime that was committed. Just my .02 worth.

Take a look at Chapter 59 of the Texas Code of Crimnial Procedure which controls the seizure of assets from certain offenses. A couple of points:

1. The 72 hours is the amount of time the officer has to get the money to your office (assuming you're the prosecutor with felony jurisdiction in your county)for deposit into an interest bearing account pending final disposition. You then have thirty days from the date of the seizure to get the petition filed in the district court.

2. Based upon your fact scenario, it would be impossible for you to determine whether or not the money was used or intended to be used (or was proceeds from) the commission of a felony offense under Chapter 481 of the Texas Health & Safety Code. In the event that the money is proceeds derived from the sale of a misdemeanor amount of marijaua (1/4 ounce or less pursuant to Section 481.120 of the Texas Health & Safety Code), the money could not be seized pursuant to Chapter 59.

3. I realize each county is different, but here in Parker County we make the seizing officer draft the seizure affidavit required to be attached to the Plaintiff's Original Petition. This allows us to get a "pre" offense report so that we know the underlying facts of the seizure prior to the offense report being filed with our office (which make take multiple weeks to occur).

4. As a practical matter, the seizure of $108 is not going to be worth your time to do. Although you will not be required to pay costs of court on this small amount, the drafting of the petition, obtaining service, litigating the matter (if you get an answer filed, and drafting and obtaining a summary judgment is going to require hours of work. I would recommend setting some guidelines for seizures and distributing those to the law enforcement agencies within your jurisdiction (for example a $500 minimum cash seizure and no vehicles seized that have liens or that are more than 10 years old). Our office has always taken the position that we have discretion in the seizure cases we will file just as we have discretion as to which cases to prosecute.

Somewhere in this computer, I have an outline of Chapter 59 that I use to teach officers for their TCLEOSE certifications. If you'll shoot me your e-mail address, I will be happy to forward it on to you to use as an outline for these situtations.

Robert DuBoise
Assistant District Attorney
Parker County, Texas
rduboise@sbcglobal.net

I'd recommend buying the TDCAA publication, Guide to Asset Seizure and Forfeiture, for help as well.

In a case where there are multiple felonies and misdemeanors for illegal hunting, the game wardens would like to seize a mount--but it's evidence in one of the misdemeanor cases rather than the felonies. I know he can get it for me to use for my case, but can the game wardens seize it permanently?

I'm thinking no because this is a misdemeanor....

But if that's the case, then my next question is, how is it that we are able to seize guns (my judge often orders them destroyed) for misdemeanor arrests that don't actually involve violence, just the possession of the gun?

Under CCP art. 18.19, if a weapon is seized in connection with an offense involving use of the weapon or an offense under PC ch. 46, upon conviction, regardless whether the offense was felony or misdemeanor as long as certain conditions are met. However, based on what I hear from our Troopers, it appeas that some judges will order destruction of the weapons almost as a routine course. The fact that the court is supposed to notify a defendant that he has 60 days to request return of the weapon seems to be ignored in many cases.

Janette A

Depends on the offense. There are several misdemeanor Parks & Wildlife offenses that result in weapon forfeiture, even with a deferred adjudication plea.

Thanks, all. I appreciate the direction.

I had a really good question from a trooper trying to clean out their evidence rooms.

What to do with a legal weapon seized from a vehicle inventory of an unrelated offense that has a conviction?

18.19 talks about if it's NOT prohibited, and NOT stolen, and the prosecutor does not intend to proceed, then the magistrate can order forfeiture or destruction.

But Then goes on to talk about in case of conviction, like the area you cited above...but it only mentions cases where the gun was used in the offense or where the gun was the basis of the offense as in Chap 46 offenses.

What about an unrelated offense where the gun was seized--such as a DWI where the car was searched? I think if there will be no prosecution, then 18.19c applies.

But what about a conviction, and an otherwise non-prohibited gun--should the law enforcement agency file with the district court, even if after the 61 days? Or could they just go to a magistrate and start the process as though 18.19e applies? These are cases where I'm assuming the defendant did not request the gun back, or we would have heard about it from the judge.