Fant v. State

MEYERS, Judge,

concurring.

The Court’s analysis of legislative intent is accurate in most respects. Certainly, the forfeiture statute at issue in this case has many characteristics of a civil in rem proceeding with nonpunitive objectives. Tex. Code Crim Proe. ch. 59. For example, a lawsuit filed pursuant to the statute evidently does not depend for its success upon the trial court’s obtaining personal jurisdiction of the property owner or of any other human being. Eligible property may be taken by the State even when no person is punished thereby. And there are other unmistakable earmarks of a nominally civil cause of action throughout the statute.

But the legislative record of its enactment is not entirely devoid of evidence tending to suggest that this statute was really meant by the Legislature as a punishment for criminal conduct. The core provisions of Chapter 59 evidently had their beginning as House Bill 8 in the Regular Session of the 71st Legislature. After that, however, the bill received no further significant attention and was left pending when the Regular Session came to a close. But it was resurrected as House Bill 65 in virtually the same form at the 1st Called Session of the same Legislature a month or so later. At that time, the House Research Organization’s analysis of the bill on July 14, 1989 describes its supporters’ position as follows.

HB 65 would increase the punishment of criminals by allowing the state to confiscate property connected with almost any felony, rather than the limited crimes covered by current law. This bill, similar to the bill introduced during the regular session as part of Speaker Lewis’ anti-crime package, would hit hard at the economic incentives for crime by expanding the amount of crime-connected property subject to being forfeited. The economic power of a crime organization could be crushed by the confiscation of its assets.

This bill was eventually passed by both houses after bouncing around for a while between them. See Acts 1989, 71st Leg., 1st C.S., ch. 12, § 1, eff. Oct. 18, 1989. Since then it has been amended several times, none of which amendments is significant to the present inquiry except the last, in which the Legislature added to subdivision (e) of article 59.05 the following statement: “It is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.” Had the legislative history actually reflected an intent to create a remedial statute in the first place, no such amendment would ever have been thought necessary. It is only because the few sources of legislative purpose tend to support a contrary conclusion and because intervening case law from the United States Supreme Court raises the specter of a jeopardy bar that reinterpretation of the legislative purpose now seems desirable. See United States v. Halper, 490 U.S. 435, 442-444 , 109 S.Ct. 1892, 1898-1900 , 104 L.Ed.2d 487 (1989); Austin v. United States, 509 U.S. 602 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993); Montana Department of Revenue v. Kurth Ranch, 511 U.S. 767 , 114 S.Ct. 1937 , 128 L.Ed.2d 767 (1994).

Nevertheless, in a very recent opinion examining the jeopardy implications of forfeiture under a federal statute remarkably similar to the one here in issue, the United States Supreme Court seems to have held that the *310 in rem character of a civil lawsuit necessarily places it beyond the reach of the Double Jeopardy Clause. United States v. Ursery, 518 U.S. -, 116 S.Ct. 2135 , 135 L.Ed.2d 549 (1996). Although the Supreme Court did emphasize that analysis of jeopardy complaints involving successive in rem forfeiture proceedings and criminal prosecutions should begin with an inquiry whether the legislature intended forfeiture to be an additional penalty for the commission of crime, the Court seemed willing to conclude that the intrinsically noncriminal character of such a proceeding was sufficient in itself to settle the question without recourse to an examination of the actual motives underlying enactment of the forfeiture law. In my view, this rationale is at odds with that of the Court in its other recent opinions on the same general subject. See Halper, Austin, and Kurth Ranch . But I am persuaded on balance that the Supreme Court would not hold a successive forfeiture of property under Chapter 59 after criminal prosecution based generally on the same conduct, or vice versa, to be jeopardy barred under the United States Constitution, given its recent holding in Ursery . Accordingly, I join the opinion of this Court in the instant cause.