I need some help interpreting the "effective consent" affirmative defense under ch 59.02(h)(1)(c). The relevant part of the statute reads: 1) owner/interest holder must not be a party to the offense and 2)the contraband "was used or intended to be used without the effective consent of the owner or interest holder in the commission of the offense giving rise to the forfeiture."

Now my question is whether the last element (a) requires the owner not to have consented to the use of the property at the time it was used in the commission of the offense, or (b) whether it requires the owner not to consent to the use of the property in the manner that it was used to commit the offense?

A reasonable hypo concerns a person that lends her car out to a family member they know is in the business of selling drugs for the express purpose of going visit Grandma out of town and nothing more. The family member then uses the car to deliver a felony amount of marijuana.

In this scenario the owner probably could not assert an innocent owner defense under 59.02(c) because they probably should have reasonably known the family member might commit this offense given their known background. Now if the interpretation of the eff. consent statute is (b), listed above, then they probably could recover under the effective consent defense because they did not give consent to use the car in this manner. However if the interpretation is (a), listed above, then they would not recover under the effective consent defense, because the family member had their express consent to use the property at the time they committed the offense.

The other alternative elements of 59.02h (subsection 1 and 2), deal solely with the authority to use the property. ie. 1) it was stolen or 2) it was purchased with stolen funds. To me, this seems to reconcile with the (a) interpretation of the eff. consent.

There seems to be very little caselaw interpreting this affirmative defense. It also seems to be split between these two interpretations. .39 Acres v. State 247 SW3d 384 seems to take the (b) interpretation. In applying the facts to the law it states "there still remains the question of whether Doke met his burden of proof in showing that he had not given his effective consent for the use of the Dew Drop Inn in such a manner that it became contraband."

2003 Ford Pickup v. State (2007 Tex. app. Lexis 865), the court takes a broader interpretation when it states the standard as "the property was stolen or purchased with money stolen from the owner, or used without the owner's consent."

Anybody deal with this before?