Sniffing for Due Process

"No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."  In Texas, "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land" and "No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation..."  A state may not provide less protection than is given by the US Constitution but it certainly can give more. While I will go into detail on the Texas process, I will end with what I think we need to be doing all across the country.

Traditionally, Texas has provided more protection of property than the federal law requires and that sentiment is certainly expressed right there in our Texas Constitution.  In fact, we in Texas were so very offended by the expansion of eminent domain possibilities from recent federal rulings that we recently amended our state constitution to make that more difficult. Based on the foregoing provisions in the Texas Constitution, the entire concept of civil forfeiture should be anathema but it sneaked in as a fund raising method for the State and we must now beat it back and out of existence.

Does your state constitution have a due process clause?  If so, what does it say?  What is due process anyway?  You can read a bit about it on Wikipedia and there's lots and lots to learn learn about those two little words of "due process" but it really boils down to FAIRNESS.  Is each tidbit fair?  Is the entire process fair?  Both have to be answered in the affirmative to pass muster and... it depends... How important we consider something to be influences how much protection is required.  It depends upon whether or not we consider something fundamental.  Life, liberty, and property (both real and personal) were amongst the original fundamental rights and animals ARE property.

Let's take an overview of the case that will be heard by a JP this Friday and see if it passes the fairness sniff test.  This case is filed in Harris County, Texas so some electronic access to court records is available.

Civil forfeitures are In Rem actions which means they are about a "thing", usually property, and jurisdiction generally lies where the property is.  The first thing one notices about In Rem cases is the peculiar names they get.  We've talked rather exclusively about the birds in this case as that was the focus of the media reports so that is what we have information about.  It may come as a bit of a surprise to find out that this case is styled (named) "IN RE: VS. ELEVEN RABBITS, FORTY- NINE DOGS ET" and, if you scroll down to "Party Information", the first party is identified as "NINE DOGS, ELEVEN RABBITS, FORTY-".  Those 2 entries tell me that the name of the case was actually entered differently in 2 places on the computer system.  "FORTY- NINE DOGS ET" as the plaintiff and "ELEVEN RABBITS" as the defendant in one section.  "FORTY-" probably entered as first name and "NINE DOGS, ELEVEN RABBITS" probably entered as last name.

The media rarely gives the case names or case numbers (although I'm sure they have that information) and now rarely names the owners of the animals in these civil seizure/forfeiture cases.  If you're being falsely accused, that may sound good but it also means you could be railroaded and those who would like to find you to support you won't be able to do so.  If you want to follow the court case, there is a way to search for JP cases but you need some basic information to do that.  Although all this information is "public", the courts have chosen to make it impossible to search by name without an accompanying birth date (and I doubt these cases come up under the defendants' names anyway since they pretend they aren't defendants or even parties in most cases).

Having done a bit of tinkering, I discovered that this case will pop up if one searches for "NINE DOGS, ELEVEN RABBITS" or "NINE DOGS" in the "Business Name Search" box but, to do that efficiently, one has to know the name of the case and exactly how it was put in the computer by the court clerk.  That the term "bird" was entirely left out of this case's name is telling to me in that it tends to indicate that the prosecutor didn't want anyone to be able to easily find this case.

You know that fairness thing I mentioned?  It isn't just an issue of being fair to the parties in the cases, it is about being fair to the public as well and playing "hide the case" by manipulating the case name simply doesn't pass my sniff test.

Realistically, one needs the case number to find these cases in the electronic system.  It is possible to keep up on cases that have been filed by searching for them through these links.  As you can see from the listed options, certain folks get a kind of preferential treatment, don't they?  The page you'll want is here.  If one asks just right, one gets (in part) this information:

  • "CV62C0008384"    "07/19/2010"    "IN RE: VS. ELEVEN RABBITS, FORTY- NINE DOGS ET"    "CRUELTY TO ANIMAL"    "0.00"    "ACTIVE"    "IN RE:"    ""    "1310 PRAIRIE"    "ROOM 880"    "HOUSTON"    "TX"    "77002"    ""    "713"    "7552651"    ""    ""    ""    ""    ""    ""    ""    ""    ""    "NINE DOGS, ELEVEN RABBITS, FORTY-"    "NINE DOGS, ELEVEN RABBITS, FORTY-THREE HAMSTERS, NINE HUNDRED   AND TWELVE BIRDS, EIGHTY-ONE FOWL"
  • "0.00"    "0.00"    "0.00"    "0.000000"    "0.000000"

(The very first think I noticed in the above was the 3 spaces between "HUNDRED" and "AND".  I have ZERO doubt those spaces are there for a reason and that reason is to further "hide the case" from public searches.  I'm wondering if there are 9 dogs or 49 dogs; whether the "forty-" is just there for further confusion...)

However, in order to get the above, one has to search each court individually.  Harris County is divided into 8 precincts and each precinct has 2 JP courts; that's 16 JP courts.  Jurisdiction lies where the property lies.  OK, so, if one knows approximately where the property was seized, then one should be able to narrow down which courts to search; if one knows precisely where the seized property was located, one can identify the precinct and search the 2 courts within that precinct.

This property was seized in Precinct 3 and the media reported that it was a rural residence so one would think they resided there so one would expect that Precinct 3 Constables would have been involved and the case would have been filed in Precinct 3.  However, in this case, Precinct 1 Constables were involved and the case was filed in Precinct 6.  What's up?

"In Texas, constables and their deputies are fully empowered peace officers with county-wide jurisdiction and thus, may legally exercise their authority in any precinct within their county; however, some constables’ offices limit themselves to providing law enforcement services only to their respective precinct..."  They limit themselves to their own jurisdictional areas for a number of reasons.  One of the big ones is not stepping on toes of other officers and not making officers in other precincts jobs more difficult by doing things "differently" than is the custom within that precinct.  Another reason is the deputies' accountability to the Constable within the jurisdiction where one acts.  Yet another is financial.  Deputies get paid so why would one precinct, Precinct 1, be sending its officers all over the county?

I smell money and influence bought.  Who is funding these deputies activities?  Harris County has won a couple of awards for "financial transparency" and I think we need to put that to work and to a test by finding out how these deputies are being funded.

"As a general rule, a civil suit in justice court must be brought in the county and precinct in which one or more defendants reside."  "Sec. 15.082.  VENUE: GENERAL RULE.  Except as otherwise provided by this subchapter or by any other law, a suit in justice court shall be brought in the county and precinct in which one or more defendants reside."  I can only guess what the prosecutor might have been thinking when filing this case in Precinct 6 and here's my guesses.

"Sec. 15.099.  MORE THAN ONE JUSTICE.  If there is more than one justice of the peace in a precinct or in an incorporated city or town, suit may be brought before any justice of the peace in that precinct or incorporated city or town."  The prosecutors are using this section to file wherever they want within Harris County.  It's a poorly written statute and I am quite sure that, if it is being used as I suspect, the legislature had ZERO intention of granting prosecutors the ability to file in the precinct of their choice.  I am sure this provision means that multiple judges within a precinct means only that they can file with another justice court WITHIN THE SAME PRECINCT.  Imagine the concept of getting tickets from constable deputies and always having to travel to the opposite end of Harris County to deal with them.  The prosecutors would be getting railed by the media for doing that but, for some odd reason, that appears to be what is going on in these animal seizure cases.

"Sec. 15.100.  DISQUALIFIED JUSTICE.  If the justice in the proper precinct is not qualified to try the suit, suit may be brought before the nearest qualified justice in the county."  Perhaps the prosecutor is alleging that only SOME of the JPs are qualified to hear these cases.  I don't think that's what the legislature meant by "not qualified" but...

Either way, it should be fairly easy to find out.  "Sec. 15.098.  PLEADING REQUIREMENTS.  If a suit is brought in a county or precinct in which the defendant does not reside, the citation or pleading must affirmatively show that the suit comes within an exception provided for by this subchapter."  Whatever the reason, if it is filed other than where the defendant resides, it should be in the pleadings.  If it isn't, then that could be a bit of an issue for the prosecutors.

NOTHING about using Precinct 1 deputies or cherry picking courts passes the sniff test for me.  The same small, select group of deputies who may be privately funded doing all these seizures definitely raises due process/fairness issues.  Cherry picking courts has always raised due process/fairness issues.  The county and district courts have gone to GREAT lengths to computerize case filing in such a way to prevent just that.

How's your sniff meter reading on fairness so far?

The Texas legislature, in its great wisdom, granted jurisdiction over these animal seizure/forfeiture cases to the lowest courts in Texas, the JP courts.  JP court judges are not even required to have any college education - let alone a law degree.  The JP courts are intended to sit over relatively small cases with a general jurisdiction dollar limit of $10,000 and cannot jail anyone, not even for contempt (careful though as they can have you hauled in front of a different judge for contempt).

Does anyone think the legislators anticipated JP courts having the jurisdiction over $250,000+ value inventory of animals in the USGE case or a claim for "$213,458 in medical and boarding costs" in the Boado case?  Or do you think maybe they got snookered by some animal rights activists/lobbyists who claimed they'd only be using this for things like dog fighting?

A look at the general jurisdiction of the JP courts does give some guidance on what the legislature thinks should be handled in JP courts.  Ch. 28 of the Texas Government Code is the easy one for our purposes as it sends us straight over to Ch. 27.  Sec. 27.031(a)(3) is of particular note as it limits cases that could easily exceed the $10,000 limit to "cases in which the amount in controversy is otherwise within the justice court's jurisdiction".  I think the legislature got snookered and all involved in these cases, including the JPs, are taking advantage of that.

There's another section there that is of particular note: "A justice court does not have jurisdiction of... a suit in behalf of the state to recover a... forfeiture..."  Texas Government Code Sec. 27.031(b)(1).  Gee, I wonder whether that and the US Constitution and the Texas Constitution control or if the hastily and poorly drafted Chapter 821 of the Health Code would win over in federal court.  At any rate, I think the legislature intends for the JPs to have quite limited jurisdiction because they need not have legal training nor keep records of their proceedings.  Those 2 issues also lead me to believe it is impossible for one to get an appropriate level of due process/fairness whether one is speaking of commercial animals of enormous commercial value OR of a beloved pet into whom one has poured not only money but love.  That someone ALLEGES that one has done other than treat the animal(s) appropriately does not overcome these issues as we are also entitled to a presumption of innocence and that too is quite fundamental to our system of justice.

We in Texas need to make sure our legislators know how the animal seizure/forfeiture law is REALLY being used and by whom AND that we do NOT approve.

As you may or may not know, the federal civil seizure statute was similarly flawed originally.  CAFRA made it a bit better.

"under CAFRA  the government:

In every state that has civil seizure/forfeiture provisions over animals, we need to DEMAND amendments similar to CAFRA.  In addition, we need to DEMAND that

  • the statutes be applied to each animal individually (a finding of abuse of one animal should not be extended to 1,000 animals; that fails the sniff test);
  • animals be LEFT in their homes/with their owners rather than seized until an adversary hearing is held;
  • courts make specific findings similar to those required for a TRO before and in support of seizures;
  • animals be sold at viable commercial prices and not gifted to anyone or any organization until that attempt has been proven in court to have failed;
  • the war of experts always leans in favor of defendants where there are disagreeing expert opinions;
  • those caring for impounded animals account publicly and with specificity for animal care, including methods of care as well as costs (actual costs) and disposition;
  • anyone or any organization tending impounded animals account publicly and with specificity as to their intake, placement, and kill rates for ALL animals within their care;
  • animal owners have a right of appeal to the highest court of the state as these are quasi-criminal proceedings involving the potential for permanent forfeiture of property and where some courts are imposing restrictions on future ownership;
  • appeal bonds be in similar amounts to equivalent criminal cases.

I'm exhausted and I'm sure I've forgotten what else would be appropriate to protect OUR due process rights.  I know one thing; that the current process STINKS and utterly fails my sniff test at every step and when considered as a whole process.  I open the floor for all of you to pitch in what you think is needed for a case to pass your sniff test.

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