STATE AND FEDERAL ASSET FORFEITURE FUNDS

Transcription

1 STATE AND FEDERAL ASSET FORFEITURE FUNDS THOMAS WILSON ASSISTANT CIVIL DISTRICT ATTORNEY SMITH COUNTY STATE FORFEITURE FUNDS 1

2 Proceeds/Property (real or personal) that was used in the commission, gained from the commission, or proceeds. An innumerate felony offense 2

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4 The process: Seized by law enforcement agency Deposited in interesting bearing account (CCP 59.08) in jurisdiction where filed Petition filed prior to 30 th day after seizure Civil action in District Court in the County where seized Civil Rules apply Judgment entered awarding the property to the parties Fees paid, distributed to parties (split between agencies) TEXAS CODE OF CRIMINAL PROCEDURE, CHAPTER 59 Use of Forfeiture Funds 4

5 TEXAS CODE OF CRIMINAL PROCEDURE, CHAPTER 59 Use of Forfeiture Funds Use of Chapter 59 Forfeiture Funds CCP Cash proceeds Proceeds from the sale of Personal/Real Property Attorney for the sate administers forfeited funds, in accordance with Inter-local Agreement with seizing agency No inter-local, proceeds from sale are deposited in the general revenue fund of the State Inter-local can be executed after forfeiture trail State v. $1,000 in U.S. Currency 865 S.W.2d 164 (Tex. App. Corpus Christi 1993, writ denied). 5

6 Use of Forfeited Assets Impermissible CCP 59.06(d-1): Contribute to political campaign; Make a donation to any entity (except see 59.06(d-2); Pay for education and expenses of judiciary; Pay for travel expenses to attend training if it would violate general rules set by Comm. Court or governing body; Purchase alcohol; Use of Forfeited Assets Impermissible unless approved by Comm. Court or Governing Body (CCP 59.06(d-1)) Lame duck purchases must be approved by Comm. Court (not on the ballot after deadline for filing for primary election has passed or incumbent lost the primary, general, or runoff election). Increase the salary, expenses, or allowance for an employee who is budgeted by the Comm. Court or governing body unless the body/board approves. 6

7 TEXAS CODE OF CRIMINAL PROCEDURE, CHAPTER 59 The Answer is no you cannot use forfeiture funds to pay for the margarita machine at the office Christmas party!!! Use of Forfeited Assets 59.06(d-2) exception: Proceeds or property may be donated to an entity that assists in: Detection, investigation, or prosecution of criminal offenses; or instances of abuse under Tex. Fam. Code (child abuse). Provides Mental heath, drug, or rehabilitation services Provides training or education related to the previous two 7

8 The Attorney General says NO: 2010 Tex. Op. Att'y Gen. GA District attorney is not authorized to utilize forfeiture funds to pay for the district attorney s legal defense in a federal civil rights lawsuit Tex. Op. Att'y Gen. JM-1253 Payments of forfeited funds for services rendered in the form of bonuses are prohibited by article III, section 53, of the Texas Constitution, unless the bonus plan is approved as part of a compensation before the services are rendered Tex. Op. Att y Gen. GA The Harris County District Attorney may not use asset forfeiture funds to help purchase the juvenile detention facility for the county, because providing a juvenile detention facility is not an official purpose of that office under Code of Criminal Procedure article and is therefore not an authorized use of those funds. However see 59.06(d-3)(7) & (d-4)(7) (apparently overruling GA-0613) Permissible Expenses: Must be used for law enforcement purposes or official purposes of the office May transfer or loan property to another municipal or county agency, ground water conservation district, or school district for use by that agency. CCP 59.06(b) SO or municipal PD may loan however Comm. Court or Governing body may revoke the loan at any time. CCP 59.06(b-1). Agency that makes the loan has duty to keep record of loan (who loaned to, fair market value, use of the property) and keep all updates regarding the property Audit fees; helicopter for counter drug enforcement (LO ); building for drug interdiction task force (CCP 59.06(d-3) & LO ); training; bar association dues; prosecution expenses; vehicles for official purposes; Purchase insurance pending appeal of forfeited property (KP-0200). What about: work out equipment, Gatorade, tractors, toy badges, etc.??? 8

9 CCP 59.06(g) Annual audit requirement Due on the 60 th day after the end of the FY for the law enforcement agency & end of the state FY for the prosecuting attorney. Online Reporting System through the Texas Attorney General s Office Disposition of Forfeited Property Title and taxes of forfeited property Vehicles & Real Property judgment should specifically state who will hold title Taxes Not liable for Taxes Title relates back to the date of the forfeiture action or date of seizure whichever is first For real property if relates back to the date lis pendis was filed. Governing Body or Comm. Court may not reduce budget based on receipt of Forfeiture funds 9

10 FEDERAL EQUITABLE SHARING FUNDS Guide to Equitable Sharing for State and Local Law Enforcement Agencies Justice Funds DEA, FBI, ATF, US Marshals Treasury IRS Annual Audit: Equitable Sharing Agreement and Certification Form FEDERAL EQUITABLE SHARING FUNDS Permissible uses - Shared-Funds-Policy-2014.pdf Treasury and DOJ similar permissible uses Law enforcement operations and investigations Law enforcement training and education Law enforcement, public safety, and detention facilities Law enforcement equipment Law enforcement travel and per diem Joint law enforcement/public safety operations Contracting for services support or enhance law enforcement (forensic accountant, expert, grant writer, etc.) 10

11 FEDERAL EQUITABLE SHARING FUNDS Permissible uses (continued) Law enforcement awards and memorials no cash or cash equivalent Drug and gang education and other awareness programs Matching funds state and federal grants Transfers to other law enforcement agencies must be compliant with current ESA&C, sending agency must verify receiving agencies compliance with ESA&C, cash transfer only, $ used for permissible purpose by receiving agency, and sending agency must verify use. Support of community-based programs 501(c)(3) or (4) only up to $25,000 annually. Organizations mission is the support law enforcement, policy, or initiative. FEDERAL EQUITABLE SHARING FUNDS Impermissible uses Use of forfeited property by non-law enforcement personnel Creation of endowments or scholarships Uses contrary to the laws of the state or local jurisdiction Personal or political use of shared assets Purchase of food and beverages except reimbursement for such expenses as allowed by state or local law/rules, or meals during local operations. Extravagant expenditures Petty cash accounts and stored value cards Purchase of items for other law enforcement agencies see previous slide Transfers to other law enforcement agencies Costs related to lawsuits Loans Money laundering operations 11

12 FEDERAL EQUITABLE SHARING FUNDS Use of Equitable Sharing funds for Salaries and benefits Generally not permissible for sworn or non-sworn law enforcement personnel Exceptions Task force agencies no full salary, but can use to pay matching federal grants Matching federal grants non task force Both sworn and non-sworn law enforcement personnel Overtime of officers and investigators involved in specific operations Salary of an officer hired to replace an officer assigned to a task force fills the vacancy, cannot be involved in seizures or narcotic as principal duty, once task force officer returns can only continue to pay salary for only 6 months Specialized programs DARE, SRO s, ect. FEDERAL EQUITABLE SHARING FUNDS Treasury Funds and Subrecipient monitoring No explicit language in Treasury or Justice Federal Equitable Sharing Guidelines Improper Supplantation Governing Body or Comm. Court may not reduce agencies budget based on receipt of Federal Equitable Sharing Funds Transfer of tangible property must be used for law enforcement purposes Must be used for at least 2 years, if after two years may be sold with permission from DOJ Timely Use of Shared Monies Funds should be used for law enforcement purposes as they are received. kept longer than three years may be subject to return Only in Treasury Guidelines not Justice 12

13 FEDERAL AND STATE FORFEITURE FUNDS Why is this so important: Reputation of asset forfeiture: Joe Frank Garza: Pleads Guilty to Misusing Millions in Seized Drug Cash Hill Country, former district attorney Ron Sutton pleaded guilty last year to two felonies and received deferred adjudication after spending more than $20,000 in asset forfeiture funds for staff bonuses and training trips to Hawaii. Montgomery County district attorney Michael McDougal used asset forfeiture funds to buy tequila, rum, kegs and a margarita machine for an employee party 13