Justice in Tenaha and the Current State of Texas Forfeiture Law

The write-up below by Eapen Thampy was originally posted over at ForfeitureReform.com:

Last Friday, the ACLU announced it had reached a settlement with officials in the East Texas city of Tenaha and Shelby County in a class-action lawsuit (Morrow v. City of Tehana, et al)  filed over some 140 traffic stops that resulted in illegal forfeitures of property by law enforcement. From the ACLU’s press release:

“…it is estimated police seized $3 million between 2006 and 2008 in at least 140 cases. Police officers routinely pulled over motorists in the vicinity of Tenaha without any legal justification, asked if they were carrying cash and, if they were, ordered them to sign over the cash to the city or face charges of money laundering or other serious crimes.

Almost all of the stops involved Black and Latino drivers. None of the plaintiffs in the case were ever arrested or charged with a crime. The seized assets were used to enrich the defendants’ offices and themselves.

“This was a brazen case of highway robbery, plain and simple,” said Elora Mukherjee, a staff attorney with the ACLU Racial Justice Program.  “Law enforcement needs to focus on protecting the communities they serve, not on policing for profit.  This far-reaching settlement radically alters how officers in Tenaha and Shelby County can go about their daily duties and protects all motorists driving along Highway 59.”

In May the Houston Chronicle reported on the worst of the extortions faced by motorists by the Tenaha police, which included threats to take children from their parents:

Authorities in a Texas town under investigation for allegedly shaking down motorists for their cash sometimes used the travelers’ children as bargaining chips in their attempt to seize money, records show…

“They basically said, ‘If you all want to leave without going to jail tonight and take your kids with you, then you’ll sign over your money right now,’” Jennifer Boatright, a Houston mother of two, said in an interview describing her encounter with local officials…

The involvement of children adds another element to a case that has especially troubled critics of civil asset forfeiture laws. Those laws allow authorities to seize cash or other property if they believe it’s linked to criminal activity, even in cases where defendants aren’t found guilty.

In two of the Tenaha incidents, authorities separated a small child from one couple pulled over in a traffic stop and threatened to do the same to another, according to case documents.

“This just shows how law enforcement can place the desire for profits above the interests of children,” said Scott Bullock, senior attorney for the Institute of Justice, a libertarian public interest law firm headquartered in Arlington, Va., that has studied civil asset forfeitures nationally.

CNN in 2009 reported on how some of the proceeds of these illegal seizures were used:

[Roderick] Daniels told CNN that one of the officers who stopped him tried on some of his jewelry in front of him.

“They asked me, ‘What you are doing with this ring on?’ I said I had bought that ring. I paid good money for that ring,” Daniels said. “He took the ring off my finger and put it on his finger and told me how did it look. He put on my jewelry.”

Texas law states that the proceeds of any seizures can be used only for “official purposes” of district attorney offices and “for law-enforcement purposes” by police departments. According to public records obtained by CNN using open-records laws, an account funded by property forfeitures in Russell’s office included $524 for a popcorn machine, $195 for candy for a poultry festival, and $400 for catering.

In addition, Russell donated money to the local chamber of commerce and a youth baseball league. A local Baptist church received two checks totaling $6,000.

And one check for $10,000 went to Barry Washington, a Tenaha police officer whose name has come up in several complaints by stopped motorists. The money was paid for “investigative costs,” the records state.

The abuses in Tenaha, along with the concurrent felony prosecutions of Jim Wells County Joe Frank Garza (misappropriation of 0ver $3 million in forfeiture funds) and Kimble County District Attorney Ron Sutton (took his entire office staff to Hawaii for a conference), spurred a reform effort in the Texas Legislature. SB 316, sponsored by Sen. John Whitmore, was passed by the Legislature and became Texas law on September 1, 2011. The Texas Courts Municipal Education Center describes this legislation:

In response to reports of abuse of asset forfeiture provisions when property is seized in connection with a controlled substance offense, the Legislature has provided stricter guidelines for the use of funds obtained through forfeiture actions and added language to close a loophole regarding the forfeiture process.

Current language prohibits a peace officer from obtaining a waiver of interest in seized property at the  scene of a roadside stop. However, the language is inapplicable to attorneys representing the State. S.B. 316 amends Article 59.03 of the Code of Criminal Procedure extending the prohibition against obtaining a waiver of property interest prior to the filing of a civil forfeiture action to such attorneys. Notably, under Article 59.01 “attorney representing the State” includes city attorneys acting in a forfeiture procedure.

Subsections added to Article 59.06 of the Code of Criminal Procedure provide guidance on permissible uses for forfeited property and procedures for the disposition of such property. Under the new provisions, 40 percent is to be allocated to the seizing department, 30 percent to the prosecuting attorney’s office, and
30 percent to the general revenue fund. A list of prohibited uses is added to the article and includes: donations and political contributions, training and travel expenses, the purchase of alcoholic beverages, and payment of salaries for prosecutorial or law enforcement employees.

The bill also sets forth accountability procedures, including audits, designed to ensure the appropriate handling and use of seized assets. The Office of the Attorney General is authorized to seek injunctive relief and/or civil penalties not to exceed $100,000 per violation of Article 59.06.

Detailed reporting requirements concerning the use of forfeiture funds and an auditing process are also added to the Code. The new regulations will be effective on assets seized and expenditures made after the act becomes effective September 1, 2011.

Texas prosecutors, however, won some significant victories in the Legislature that undermined the effectiveness of the bill. In a “Note to DA’s on Asset Forfeiture Reform”, the Texas District & County Attorneys Association said last June:

One bill still pending in conference committee is SB 316 by Whitmire/Gallego. A conference committee report was issued in which all the House floor amendments—including the one giving the AG rule-making authority over your expenditures—were stripped out (except for one harmless change regarding the state auditor). Included in those “dead amendments” was language related to drug-related seizures by DPS troopers that was designed to encourage DPS to keep those cases in the state system. DPS has been working overtime to get that back in, and earlier today, the House rejected the conference committee and returned it to the Senate with a request that the DPS amendments be restored. This also opens up the bill to other amendments directed at one particular judicial district. However, what’s most important to note is how vital it was that we got the AG’s rule-making amendment repealed before the House sent the bill back to the Senate. If not for your quick action, that language would also now be in play again. So, once again, pat yourself on the back for a job well done—having to ride herd on that bad idea all weekend would’ve really spoiled our holiday!

In other words, while SB 316 went a long way to prevent the abuses of Tenaha, it would still be desirable to increase the rule-making authority of the Texas Attorney General forfeiture expenditures made by Texas law enforcement, and it would be desirable to pass legislation aimed at keeping Texas forfeitures in the state system. In the absence of the latter restriction, Texas law enforcement will just use the federal “Equitable Sharing” arrangement with federal law enforcement agencies to dodge the restrictions of state law on their power to seize and use cash and property with great discretion and little oversight. A further ideal reform would be to send forfeiture proceeds directly to the general fund for legislative appropriation, a check that do much to reconnect law enforcement priorities with democratic desires and accountability.

Tenaha Police Department
Phone: (936) 248-5942
Fax: (936) 248-5942

A related post from the Chicago Tribune

Overall a solid write-up by Eapen that really demonstrated the harms caused by individuals acting on bad ideas – in this case,  the belief that theft of property is ok (asset forfeiture) for some based on their place of employment. How can the stealing of rightfully-acquired property go from being wrong to right based on the dress of the actor?

While the post offers recommendations on how to try to band-aid the situation, no where is it suggested that it’s the institution itself – rife with perverse incentives – that is the thing that needs undoing.

If you think the situations described in Eapen’s write-up are not ideal how can you support any degree of “legalized” theft? Because at it’s core, that defines asset forfeiture. -Pete


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Pete Eyre

Pete Eyre is co-founder of CopBlock.org. As an advocate of peaceful, consensual interactions, he seeks to inject a message of complete liberty and self-government into the conversation of police accountability. Eyre went to undergrad and grad school for law enforcement, then spent time in DC as an intern at the Cato Institute, a Koch Fellow at the Drug Policy Alliance, Directer of Campus Outreach at the Institute for Humane Studies, Crasher-in-Chief at Bureaucrash, and as a contractor for the Future of Freedom Foundation. In 2009 he left the belly of the beast and hit the road with Motorhome Diaries and later co-founded Liberty On Tour. He spent time in New Hampshire home, and was involved with Free Keene, the Free State Project and The Daily Decrypt.