I have been asked to update a memo that was written in 1991 by a prior DA. I have no experience in forfeiting real estate. The 1991 memo stated:

"Under the current status of the law, it is virtually impossible to forfeit real estate. Due to a quirk in the law, we have to be able to prove that the realty was purchased with the proceeds of crime (drug money, for instance) or that, at the time the property was purchased, the owner intended to use it for some criminal activity. Simply, selling drugs out of a particular location is not enough."

Is that statement from 1991 still true today or has the "quirk in the law" been corrected?

I think the author of that 1991 memo incorrectly read Chapter 59 or the law has changed since then. I happened to be doing some research on the forfeiture of real property which I ran across your post. The cases repeat the language of CCP art. 59.01(2)(B) ("Contraband means propery of any nature, including real, personal, tangible, or intangible, that is: used or intended to be used in the commission of: any felony under Chapter 481, Health and Safety Code; any felony under Chapter 483, Health and Safety Code;" and a bunch of other offenses such as offenses under Chapter 152 and 153 of the Finance Code. None of the cases I read said anything about the property having to be acquired with drug proceeds or having to be purchased for illicit purposes. (See Bochas v. State, 951 S.W.2d 64 (Tex. App.- Corpus Christi 1997); Lot 39, Section C, Northern Hills Subdivision v. State, 85 S.W.3d 429 (Tex. App. - Eastland 2002), pet. ref'd sub nom Helm v. State; Ruiz v. State, 1998 Tex. App. LEXIS 2703 (Tex. App.-Corpus Christi May 7, 1998)).

FYI, this is just my interpretation of the statute!

Janette Ansolabehere
Office of General Counsel
DPS

I certainly haven't been doing forfeitures back to the date of the memo in your office. But certainly since 2000 the statute has permitted forfeiture of real property used in the commission of any felony offense under Chapter 481 of the Texas Health & Safety Code.

I jumped on Westlaw quickly and found the following case where a house was seized as a result of it containing a meth lab:

Lot 39, Section C, Northern Hills Subdivision, Grayson County, Texas v. State
85 S.W.3d 429
Tex.App.-Eastland,2002.
Aug 22, 2002 (Approx. 3 pages)


The Court seems inclined to agree with Janette and the plain wording of the statute.

The only hurdle I think you can run into is a proportionality claim (8th Amendement--I think) that the value of the property being seized so outweighs the level of the offense charged.

The Beaumont Court of Appeals recently bought that argument when a truck was seized as a result of a state jail felony amount of drugs being found in the vehicle. The case originated in either the 258th or 411th out of Polk County.


Robert DuBoise

Thank you for your help.