On October 14, in No. 08-351, Alvarez v. Smith, the Court will consider whether the Due Process Clause provides individuals whose personal property was seized by government authorities pursuant to a state criminal forfeiture statute with the right to an interim probable-cause hearing before the actual forfeiture hearing.

Details.

Since we don't have chapter 59 jurisdiction, I leave that end of the equation to those who are better situated to address it. But in art. 18.18 forfeiture cases, In re Cornyn holds that art. 18.10 may be invoked for interim review of care and custody of the property seized.

Warrantless seizures can blossom into sustainable forfeitures, particularly where consent to search is given. See In re Seizure of Gambling Proceeds & Devices, 261 S.W.3d 439 (Tex. App.--Houston [14th Dist.] 2008, pet. denied). On the other hand, most of our cases involve forfeitures arising from execution of search warrants. In those circumstances, the probable cause determination already has been made. Couple with that the civil nature of forfeiture actions, where summary judgment is available to streamline the process, and I see some distinction between Texas procedure and the Illinois scheme in question.

As an aside, most of the delay we typically encounter is a product of the claimant/defendant seeking discovery. That aspect would seem to factor into the "potential for remedying erroneous deprivations" analysis. Thus, I'm not sure the Texas scheme, at least under art. 18.18, is subject to the same caliber of challenge. But I could be wrong.