I have a weird situation where the suspects basically suckered an old woman into giving them a few thousand bucks, making her go to the bank to get it, etc. When arrested, the police seized the money, but, since the money was the old lady's, no forfeiture exists. The suspects got the criminal case dismissed. Now said past suspects have filed a motion in the criminal case for return of "their" money and the old lady has intervened claiming it. The State has no interest in the case monetarily, but I have been asked if a Criminal cause can transform like this into a civil matter. It seems on its face to be suited for a civil action, but the Court does seem to have authority over the return of evidence. This is in a criminal court... Any guidance?

Was the money seized pursuant to a warrant? If so, the magistrate who signed the warrant could probably conduct a hearing to determine rightful ownership of the funds, putatively under authority of CCP art. 18.17. If not, I suppose the old lady could file a conversion suit and seek a writ of sequestration. Presumably, the criminal court would acknowledge lack of jurisdiciton and allow the executing officer to transfer the funds to a holding account or the court registry.

That's all I could come up with without research or a cup of coffee.

Thanks Scott, no warrant, I'll let you know how it pans out.

This message has been edited. Last edited by: critter,

I use CCP Ch. 47 to return property to its rightful owner, with or without a criminal trial. 47.01a Restoration When No Trial Is Pending & 47.02 Restored on Trial.

Under the statutes, all that is necessary is that the property "allegedly be stolen." The court "may hold a hearing to determine the right to possession of the property" upon petition by an interested person, the State, a county, etc. Jurisdicion is criminal, not civil. But the standard is clearly preponderance of the evidence: after a heaing, "The court shall order the propery returned to whoever has the superior right to possession, without conditions ...." 47.01a(a)(1).

Also, Chapter 47 governs all property acquired in a "manner that makes its acquisition an offense." See 47.01a(b), (c), & 47.02(b). Thus, misapplication of fiduciary property, fraud, deceptive business practices, and many other ways in which people take criminal advantage of the elderly are covered--and can be proven by preponderance of the evidence.

If property has not been recovered and there is no criminal case, then referral to private civil action would seem appropriate. But once LE takes possession of the property, Ch. 47 seems the just and most efficient way to return the property to its rightful owner. And the judge makes the final decision.

Thanks much Brent. 47 will be handy in a few weird situations.