Cliff notes: Question about whether it is sufficient that an innocent owner only has to prove that he/she didn't have knowledge at the time of acquiring interest in property for asset forfeiture under chapter 59.

I'm in my first job out of law school handling civil cases as an ADA. As part of this job I handle a lot of asset forfeiture cases. When I was moved to this position, my boss explained the basic gist of forfeitures including the commonly asserted---it seems that no drug dealer drives around in car under his/her own name---innocent owner affirmative defense (ch. 59.02 (c) (1)). As it was explained to me, for property purchased before the alleged event giving rise to forfeiture, the elements of the aff. def. were 1)that it had to be purchased before the event and 2) that the owner couldn't know or shouldn't have reasonably known that the event was likely to happened. This seemed (and seems) like rational way to craft a innocent owner statute.

However, later when actually reading the statute, I interpreted it in a much different way. Specifically the 2nd element of the defense. The statute reads that the, "owner or interested holder...acquired and perfected the interest before or during the act or omission giving rise to forefeiture...and did not know or should not reasonably have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring interest..." (ch. 59.02 (c) (1)). The way it's constructed I read it as that an inn owner must prove both that:

1) it was acquired before hand and

2) either a)that she didn't know or should not have reasonably known or b) know that it was likely to occur at or before the time of acquiring interest.

It's the "at or before the time of acquiring interest" that would change the whole interpretation of the statute. To satisfy the 2nd element of the defense, the owner would only have prove that when she acquired interest she didn't know the event was likely to happen (it's an affirmative defense so the defendant would have the burden).

Obviously I've researched the caselaw I could find on the Texas Bar site. I've seen the entire statute quoted numerous times in cases(quoting the at or before acquring interest clause), but I have yet to see a case decided (either way) on the "at or before acquiring interest" clause.

However, I've seen cases that essentially ignore that clause when reviewing the case. Specifically the Drew Drop Inn case (247 S.W.3d 384 ) where real property was forfeited after the owner gained knowledge that drugs were being sold on his property. There was no evidence mentioned or considered on whether, at or before the time of acquiring the property, he knew drugs would be sold on the property. Only whether the evidence indicated that he knew or reasonably should have known.

I'm not sure how any plain reading of the statute can lead to any interpretation other than that the def only has to prove she didn't have knowledge when she acquired the property. However, it seems ridiculous that this would be the interpretation of the statute.

In addition to the absence of supporting caselaw, when this interpretation is taken to its logical conclusion it goes against the plain meaning of "innocent owner". For example, imagine a case it which a normal law abiding man buys car in 2000. Eight years later he falls into the drug scene. Now in 2009 he lends his car to a new friend specifically with the knowledge that the friend will use to car to transport a felony amount of illegal drugs. Under that interpretation of innocent owner, he can still claim innocent ownership under 59 despite giving his effective consent for the felony because in 2000 he didn't know that this was likely to occur.

Further, I cannot think of an instance in which the second conjunctive clause (at or before acquiring interest) of the 2nd element is met, while the first conjunctive clause (know or reasonably know)is not met. Therefore, if that is the case, the first clause (know or reasonably know) would be unnecessary because every time they can prove the first clause they could have also proven the second clause.

Now while those are reasons why I don't think the clause should be interpreted that way, I don't have an alternative explanation as to why the the second clause is there or what it may mean if it doesn't led to the interpretation in question.

I'm sorry if this is too convoluted. Does anyone have a clearer idea of how to interpret the innocent owner clause of ch 59?

[This message was edited by ADA WTX on 04-21-09 at .]

Very good question! I've never looked at it in quite that way. (And you know there's so little caselaw on innocent owner!) But looking over the statute, I think that the "at or before the time of acquiring interest" only applies to the SECOND half of that section. That is, either (1) the owner didn't know or shouldn't reasonably have known about the offense, or (2) when she acquired title, she didn't know the offense was likely to occur.

Look at $9,050 v. State, 874 SW2d 158, 163 (Tex. App.--Houston [14th Dist.] 1994). That seems to be how they're explaining it.

Thank you for the reply! I think we both have the same reading of the statute (not sure how to read it any other way). There are two elements to an innocence owner defense under ch. 59 1) acquired and perfected before the event and 2)know or reasonable should know or didn't know at or before acquiring interest.

The 2nd element has two main clauses seperated by a conjunction. Because of this, I read it that to satisfy the 2nd element the owner can prove either of the two clauses.

But if this is the case, does it mean once someone acquires a property "innocently", that he/she can never lose that status no matter what subsequent knowledge they gain? That just doesn't seem right to me and if that were the case I don't understand why more defendants don't rely on that clause.