I have received a lot of phone calls about forfeiture cases in Texas. Most of these calls go something like the following: My cousin, friend, brother, boyfriend or whomever was using my vehicle and he/she was arrested for manufacturing/delivering a controlled substance. The government now wants to forfeit my car, how can the government take my car?
In short, the government can TRY to forfeit the vehicle because is was used in the commission of a crime. However, Texas has a defense known as the “innocent owner defense.” This is a very general summary of the "innocent owner" defense in forfeiture cases, and is not intended to be an exhaustive discussion of the defense. The purpose of this article is to give you some basic information to head you in the right direction in evaluating the availability of the "innocent owner" defense, the factors to consider, and how it may be presented to the Court. Chapter 59 of the Texas Code of Criminal Procedure provides a safe harbor for "innocent owners." Pursuant to article 59.02(c), "[a]n owner or interest holder's interest in property may not be forfeited . . . if the owner or interest holder: (1) acquired and perfected the interest before or during the act or omission giving rise to forfeiture or, if the property is real property, he acquired an ownership interest, security interest, or lien interest before a lis pendens notice was filed . . .; and (2) did not know or should not reasonably have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest or, if the property is real property, at or before the time of acquiring the ownership interest, security interest, or lien interest." The statutory safe harbor is an affirmative defense. An affirmative defense “seeks to establish an independent reason that the plaintiff should not recover” and is “thus [a defense] of avoidance, rather than a defense in denial”; that is, it is a defense of confession and avoidance. In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Great Am. Prods. v. Permabond Int’l, 94 S.W.3d 675, 683 (Tex. App.—Austin 2002, pet. denied). must plead "innocent owner" as an affirmative defense, meaning that you will have to take some responsibility for proving your status.
When a Respondent, alleges an affirmative defense, that party has the burden of proving the defense. I.e you must prove you are an "innocent owner" if you want to preserve your rights in the property. If you do not prove that you are an “innocent owner” by testimony or otherwise, the Court will deny your defense. In summary, the "innocent owner" defense in Texas is very fact-specific and it is very important for your attorney to gather those facts in support of your defense at the outset to ensure that the client has a reasonable chance to prevailing. This type of case demonstrates the need to hire an attorney who has a broad background in issues involving criminal law, community property, vehicle titles, and other commercial and civil concepts that may be central to resolving your forfeiture case. As previously mentioned, an affirmative defense must be plead in the answer of the party asserting the defense. In Texas, the answer is required to be no filed no later than 20 days after the following Monday after service.
Forfeiture case are very complex legal matters. It is a good idea to hire comet ant counsel to represent you in a forfeiture case. If you have any questions about a family law, criminal law, or a forfeiture case, please call the Law Office of G. Thayer Williamson. Mr. Williamson has been licensed in the State of Texas since 2000 and practices in and around the Dallas Fort Worth metroplex.