18. What are some defenses I can use to challenge a seizure?

The Innocent Owner Defense - This is the most common defense to forfeiture. You can use this defense if you got the seized property before, during, or after the time of the crime that made the property subject to forfeiture. In order to prove that you are an innocent owner, you need to show: 

  • If you got the property before or during the time that the crime took place: You had no knowledge of that crime before taking the property, and you should not have reasonably known about the crime when the property was taken.
  • If you got the property after the crime took place: You got the property for value (i.e., you did not take the property for free), and did not have reason to believe the property was Contraband.

You cannot use the innocent owner defense if you purposefully avoided learning that the property was used (or intended to be used) in a crime.

Family Violence - This defense applies to spouses who are victims of family violence, which makes them unable to stop a crime that is the basis for the seizure of their property.

Dismissal of Criminal Charges - Dismissal of criminal charges (for the crime related to the seizure) is not a complete defense against forfeiture. However, you can use this defense when the criminal charges that may be associated with the property at issue in the forfeiture case are dropped in a separate court case.  If the charges in your personal criminal case are dropped, you should include this defense along with Innocent Owner defense.

Other Common Defenses

The following defenses are common defenses in civil actions and some may apply to your forfeiture case. These defenses are also called "affirmative defenses," or defenses that are put forth by the defendant that, if proven, defeat or limit the legal consequences of the defendant's otherwise potentially unlawful acts.  

  • accord and satisfaction
  • arbitration and award
  • assumption of risk
  • contributory negligence
  • discharge in bankruptcy
  • duress
  • estoppel
  • failure of consideration
  • fraud
  • illegality
  • injury to fellow servant
  • laches
  • license
  • release
  • res judicata
  • statute of frauds
  • statute of limitations
  • waiver 

Descriptions of how and when these defenses might be used can be found on TexasLawHelp.org.

In our example, Steve would probably use the Innocent Owner Defense because he got the $900 from the check casher. If that money had ever been involved in a crime, it was a crime that Steve didn’t know about and could not have reasonably known about.