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The Two Different Types of Asset Forfeiture

The Collin County Law Group June 10, 2019

According to the Fourth Amendment of the U.S. Constitution, citizens of Texas and all other states have the right to protection from unreasonable searches and seizures. However, what state and federal governments deem “reasonable” may not always match the ordinary citizen’s definition.

To a certain extent, authorities have the right to seize property from an individual if they believe that the individual either acquired it as the result of a crime or used it to commit one. The term for this is asset forfeiture.

The United States Department of Justice describes two different types of asset forfeiture: criminal and civil. Criminal forfeiture does not take place until after the conviction of an individual. The court can issue an order of forfeiture following a conviction, but only if a jury decides that the property is forfeitable as a result of the criminal prosecution.

According to FindLaw, the standard of proof for a civil asset forfeiture is much less strict than for a criminal conviction. Generally speaking, if the available evidence suggests involvement in illegal activity, authorities are within their rights to seize it. This is true even if authorities do not charge the individual in possession of the property with any crime. It is also difficult, if not impossible, for the individual to reclaim the seized property even in the absence of charges.

However, civil asset forfeiture laws are not uniform across all jurisdictions. Due to the controversial nature of civil asset forfeiture, different states have developed their own rules to establish when and how forfeiture can take place. In some states, though not in Texas, civil asset forfeiture requires a conviction first, similar to the way that a criminal asset forfeiture does.