From a practical standpoint (in order to increase the chance of an agreed judgment) I would like to allow individuals to "settle" with the State by paying the State cash and then returning the seized car to the individual. Accounting seems to believe this will cause mayhem. Does any other county do this type of "settlement?"

So far, I think the best option would be for the individual to allow the State to take the car as contraband and then sell the car back to the individual for the "settlement" amount. That should make all parties happy... including accounting. Any advice or suggestions would be welcome.

I have always thought the true purpose of forfeitures was not to fund law enforcment and make everyone happy, but rather to take away the tools of the offense and prevent the forfeited property from being used again in future offenses.
That being said, I do not know of anything that prevents the responding party of a forfeiture action from buying back the property EXCEPT Texas OAG opinion JC-0075 states:

"you are not required to dispose of the property by sheriff's auction. Rather, we believe that so long as you administer the property in accordance with accepted accounting practices and with the provisions of your local agreement, you have the discretion to decide how to dispose of it most advantageously."

If the property has been awarded to the State, how is most advantageous to sell it back at a pre-agreed and presumably discounted price?

If you really want to "sell" the property back to the respondent, I think the safest way to avoid running afoul of the OAG opinion is to have the Respondent post a replevy bond, return the property to the respondent, and then forfeit the bond.

We haven't run into a situation where we considered selling the vehicle back to the offender, but we settle cases all the time with lienholders to pay us cash for the offender's equity and then return the car to the lienholder. In that sense, we settle lots of cases, but I am not sure that is what you are asking.

Another scenario we have run into frequently is when we seize a car and cash at the same time, such as a drug mule bust. In those cases we sometimes offer the car as a token for settlement, with an agreed forfeiture of the cash. Of course, in those scenarios the cars are usually worthless and no one in our PD or SO wants to go through the trouble of taking a $500 car to auction.

As J.G. said, Chapter 59 is not focused on money, but I certainly view my time in terms of diminishing returns.

Well, the car is going back to someone in the community. Generally, the defendant is already on probation for their criminal transgressions and cannot commit a new offense or they will go to jail. As long as the vehicle has no modifications that make it conducive to the drug trade (secret compartments, etc.) what is the harm in returning it to the defendant for approximately the same fee you would receive at auction? In certain cases the criminals may actually want their vehicles back.

Theoretically I can see milder varieties of cases where that could be appropriate. I think J.G. is right in that you should probably require them to post the replevy bond and then reach an agreement on the amount of that bond to forfeit. That at least somewhat ameliorates the appearance of selling offenders' cars back to them.

I once non-suited a forfeiture of a car used in a felony evaiding case - Innocent Owner (Mommy) Defense. Defendant did a Year State Jail and within a month - in the same car - ran from the police and wrecked-out. Think about the headline if he had killed somebody - DA GIVES CAR BACK - USED IN MURDER. That is the harm!
Next time they will need to convince the Judge to give them the car back.

The other harm in barganing over forfeitures is the appearence that you are using the criminal case to gain an advantage in the civil suit. Even if you have the best intentions, it may appear that someone got probation or a reduced sentence by writting a check to the police. It is best to draw a bright line between the two. I know that is hard to do in a small office (I'm the only assistant) but remember, forfeitures are remedial in nature against the property. If they were punishment you would have double jeopardy problems. If you simply want to punish the offender more - ask for a higher fine, or jail time, or pen time.

I know I am kind of ranting on this, but forfeitures have screwed-up alot of good prosecutor's careers and the legislature pays attention to such things. I would hate to lose such a valuable tool as forfeiture to save a little effort on a lawsuit over a $500 car.

[This message was edited by John Greenwood on 07-02-08 at .]

[This message was edited by John Greenwood on 07-02-08 at .]

I have accomplished this type of "settlement" by requiring the respondent to tender additional cash (in an amount equivalent to the fair market value of the vehicle) with a stipulation that it is contraband. We amend the case to include the cash, then forfeit it by agreement, on the basis that the respondent was dealing drugs and had money that we simply were not able to identify and seize. After we get the money, we nonsuit the case against the vehicle.

When we do return a car, even when it is to a lienholder and not an offender, I have started requiring that they accept and sign for a "Notice to Surety Upon Release of Seized Property."

Basically we have had concerns that, in cases where the offender is upside down or in repo, the surety may allow them to catch up on payments and then give the car back. That document puts them on notice that we consider the item contraband, and if they give it back, then we will not accept their "innocent owner" defense on face value. There is also a clause that says financing any other car to the same offender will have the same result.

We haven't had to rely on it yet on a re-seizure or similar situation, but it is only a matter of time.

I think the best option would be for the individual to allow the State to take the car as contraband and then sell the car back to the individual for the "settlement" amount.
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williamrichard

Auto Auctions

The Senate Criminal Justice Committee is looking at the current forfeiture statutes with an eye to making some changes. They held a hearing on the subject in July. If I remember correctly, it was on July 8th. I believe their principal concern was how forfeiture funds were being use and accounted for by law enforcement agencies and state's attorneys.

Janette

Do you require the purchaser (previous owner) to provide you with a valid DL and Insurance information to take the car? Also, does this work better for you than auction?