As per Transportation code section 704.001, a vehicle driven by a DWI defendant can be seized & forfeited if the person has previously been "finally" convicted 3 or more times of an offense under section 49.04, penal code, i.e. DWI.

My question is, how final does "finally" have to be for this statute? Are we talking about 3 true final convictions--jail time/pen time imposed (no probation or probation revoked); or final as defined in 49.09(d)--final if the sentence was imposed or probated? Has anyone dealt with this before?

Never seen it before, but the language of 49.04(d) is against you since it limits itself to uses under that section. Other than that, the general rule in felony cases is that you are not finally convicted until your probation is revoked and you're sent to the pen. See, e.g., Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992). Langley applied the habitual enhancement statute that also used the term "finally convicted." The transportation code doesn't otherwise define "finally convicted." So, I would think no, you can't forfeit the vehicle unless he's been revoked on the priors.

I wouldn't assume that you need a revocation for a conviction to be final. The law interprets that word all kinds of ways, depending on the statute and the mood of the court. It could include a probated sentence.

For the most recent example where "final" was discussed in the context of probation eligibility, see Jordan v. State, 36 SW3d 871 (Tex. Crim. App. 2001).

The key here is that Section 704 uses the term "finally convicted," unlike Article 42.12 Sections 4 and 15, construed in Jordan. While the Jordan Court said that the term "conviction" contains a finality requirement even without the modifier "finally," when the terms are combined the first place an appellate court would probably look is section 12.42 and the cases construing it, which hold that "finally" means after revocation of probation. Part of the confusion stems from the use of "final" to mean, in different circumstances, that the appellate court has issued a mandate or the time to appeal has expired and that a suspended sentence has been imposed.

The counter-argument to my construction is that a requirement that the probations be revoked would cause an absurd result since we can send your defendant to prison for 10 years, but he is still allowed to own the car. Once you show an absurd result you can tap into any favorable legislative history and other policy arguments. The fact that "final" is ambiguous to the Court helps.

[This message was edited by John Rolater on 04-25-02 at .]

The legislative history of this statute or the view of its sponsor might be interesting. Since most Class B and many Class A and first-time felony offenses involve suspended sentences which are not revoked (possibly one reason for the wording in 49.09(d)), if 704.001(a)(2) requires the degree of finality demanded by 12.42, then it would likely be only the six or seventh or eighth time drunk driver and not the fourth-timer who might be subject to losing his car. It doesn't seem to offer much of any deterrent effect. Plus you have to get the restraining order and notify the DMV of it in order to keep the vehicle available for forfeiture at the end of the criminal proceeding. I went through this process one time, but unless its a really nice car I'll never try it again. And most of those drunk drivers don't have nice cars.

How about a legislative solution that:

(1) Puts the forfeiture law in the Code of Criminal Procedure with the rest of the law; and
(2) Makes forfeiture appropriate in any felony DWI case (thereby solving the final conviction issue).

Anyone want to sponsor such a bill? I bet MADD would be interested.

Watch out, Ed! You're going to invite cranky, retired man to respond and call us all thieves for seeking asset forfeiture!

Ask Kate Dolan in Harris County. She used to seize drunks' cars all the time when I was in her court.

I am told that at least in Sweden part of the penalty for a second-time offense is loss of driving privilege for the rest of your life and forfeiture of the vehicle. Certainly would seem to make it more difficult to again drink and drive if you don't have a car and can't find anyone willing to lend you theirs (for fear of losing it). At some point this logic takes hold- it's not theft its saving something, maybe even a life. The only question is how many cars do you get to drive drunk in before you really lose the opportunity? In Texas the answer is and will remain as many as you can afford.

Section 704.004(b) is why we don't see more efforts - (b) The proceeds of the sale shall be delivered to the county clerk and shall be paid to any party holding a security interest in the vehicle, including a lienholder or secured party, to the extent of the interest. The balance, if any, shall be deposited in the county treasury.

John Bradley is right, it should be addressed by the legislature and the question of why it is not done more could be asked. Twenty two or so years ago I tried to get such a bill passed with net proceeds of the sale to the agency that seized the vehicle and it came out of committee with proceeds to the State. I swore off another try.

I think it could be an effective tool in the fight against DWI and Driving Without Insurance. Louisiana (believe it or not) was the cutting edge on forfeiting vehicles being operated without insurance ... would tend to prevent new offenses of those types ...

I tried last session to get Rep. Menendez to submit a bill to repeal 704 and put all DWI felonies under Chapt. 59 Forfeiture proceedings where they belong. Absolutely no luck at all!