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New deal between Denton police, DA's Office expands what officers can confiscate in criminal cases

DRC file photo

Denton City Council members voted unanimously Tuesday night to approve a new forfeiture-sharing agreement between the Denton Police Department and the Denton County District Attorney’s Office that expands what can be taken if they believe one is involved in a crime.

Now those items include gambling paraphernalia, devices, equipment, real (gambling) property, cash proceeds, prohibited weapons, criminal instruments and other contraband listed under Article 18.18 of the Texas Code of Criminal Procedure, according to the agreement.

“Our office has seen an increase in personal property consisting of stocks, bonds, securities, cryptocurrencies, negotiable instruments, jewelry, precious metals and coins,” District Attorney Paul Johnson wrote in a Sept. 31 letter to the Denton Police Department.

“These items are being used as a means of hiding proceeds from law enforcement. Additionally, there has been an increase in negotiated cash settlements in lieu of forfeiting property.”

Critics of the state’s civil forfeiture law point out that law enforcement should wait until after a person has been convicted of a crime before they take a person’s property.

Former Texas Supreme Court Justice Don Willett, a Republican who now serves on a federal appeals court, wrote in a 2014 opinion: “One wonders if our colonial ancestors, transported to 2014, would be astonished — watching government seize, then sell, the property of guiltless citizens who have not been charged with any crime, much less convicted of one. A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals.

“Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong,” Willett continued, as the Texas Tribune reported in early December 2018.

In the DA’s late September letter to the Denton police, Johnson wrote that the DA’s Office had terminated its initial sharing agreement and created a new one — Chapter 59 and Article 18.18 forfeiture cases — with law enforcement agencies throughout the county.

The new forfeiture-sharing agreement took effect Oct. 1. According to the new agreement, Denton police and the DA’s Office will divide forfeiture assets for the most part using an 80% to 20% split.

Other highlights from the new agreement include:

  • The law enforcement agencies will sell and divide the proceeds received from personal property consisting of stocks, bonds and securities, as well as cryptocurrencies, negotiable instruments and other documents of value.
  • Jewelry, precious metals and coins will also be sold and proceeds divided.
  • For all other personal property, the new agreement gives 100% of proceeds to the Denton police instead of 80%.
  • Denton police will have to pay $300 to the DA’s Office for each final judgment obtained for the forfeiture of a motor vehicle.
  • But if the vehicle is the subject of a final judgment of forfeiture, Denton police can opt to take the title and use it for law enforcement purposes in the investigation of alleged violations of laws pursuant to Chapter 59 of the Texas Code of of Criminal procedure.

As for proceeds from the sale of real property, Denton police and the DA’s Office will negotiate how it’s divided on a case-by-case basis before litigation by the DA.

In lieu of forfeiture, the DA can also negotiate a cash settlement instead and divide it based on the 80-20 split.

Denton police are required to pay for all court costs and litigation expenses related to forfeiture proceedings, as well as the title searches and title policies for property and other costs and expenses associated with forfeiture proceedings, including storage costs, maintenance and auctions of vehicles and property.

The DA’s Office can also modify the percentages if special circumstances dictate.

Other requirements for the Denton police and the DA’s Office are as follows:

  • All currency seized by Denton police under Chapter 59 must be deposited into an interest-bearing bank account held by the police that only contains the forfeiture funds until a final judgment is rendered before the money is divided.
  • Once the judgment is rendered, the DA will deposit the money it receives from the share of forfeited currency, proceeds from sales and the $300 fee for forfeited motor vehicles and negotiated cash settlements into a special fund in the county treasury and used solely for the official purposes of the DA’s office.
  • Denton police will deposit all currency and money from sales of forfeiture property and personal property received into a special fund in the city treasury and only used for law enforcement purposes.

Mayor Pro Tem Brian Beck said the DA’s changes appeared to be administrative, but he said he was also curious what percentage of the public safety budget is derived from forfeiture.

“I am aware that across the nation, some police departments seem to have a profit/budget motive in forfeiture, but I do not know the extent to which DPD engages (if at all) in this,” Beck said.

The Denton police do profit from forfeitures, according to the five-year forfeiture data provided by the city. Those revenues come from seizures, auction proceeds and interest income and are placed into a police confiscation fund.

The fund was established to record a receipt of confiscated contraband with expenditures approved by the court, said Dustin Sternbeck, Denton chief of communications.

According to city data, the five-year breakdown of revenue from confiscation is as follows:

  • FY 2018 — $46,930
  • FY 2019 — $129,195
  • FY 2020 — $385,068
  • FY 2021 — $143,226
  • FY 2022 — $288,767

The fiscal year 2022-23 budget, Sternbeck said, included expenses of $85,000 from the fund for additional police training, materials and supplies.

Sternbeck said that a new state law in 2021 doesn’t allow cities to budget revenues from the police confiscation fund.

“If the money isn’t budgeted for the fiscal year, then we don’t spend it, and it rolls into the fund balance,” Sternbeck said.