On October 20, 2005, Javier Gonzalez, sporting baggy shorts, T-shirt, and a shaved head, took off from Austin toward Brownsville in a used Mazda. At the time, he worked for an Austin auto dealer performing minor body-shop repairs and the occasional car sale for the owner, who had loaned him the Mazda. Along with changes of clothes Javier carried $10,032, most of it in $100 bills, in a black gym bag that he made no effort to conceal.
Javier, who was then 30, is the son of Mexican immigrants and an American citizen. He was born in the Rio Grande Valley and grew up in Austin. On a melancholy errand that day, he hoped to see his ailing aunt, Maria Martinez , who had helped raise him, before she passed away. He was taking the money to secure arrangements for her funeral: a proper coffin; her burial, as she wished, across the river in her native Mexico; and a nice tombstone. Most of the money was his own, Javier says, withdrawn from his Austin bank account. The rest came from relatives.
Other travelers might have converted that much money to a cashier's check or wired it to a financial institution in Brownsville, but Javier saw no need. Traveling with him that day was a friend named Christopher Clifford, who also wore baggy shorts and a T-shirt. Originally from small-town Kentucky, he was just along for the ride. It was a clear day as they passed through San Antonio, then followed Interstate 37 toward Corpus Christi and took the U.S. 281 exit near Three Rivers. The road toward the border winds through the Nueces River bottom for a few miles with the Choke Canyon Reservoir nearby. "You know," Javier said later, "some days you're driving down that highway, and you think, 'It's nice down here. It's pretty. I might come back.'" But the passage into deeper South Texas put him on edge, as it often did. "It's different down there, that's all there is to it. It's still Texas, but it's different."
Two long rural highways provide the most direct connection between the state's major population centers and the Valley. U.S. Highway 77 skirts the coastline from Houston, Corpus Christi, and Kingsville and drops south through Kleberg and Kennedy counties-King Ranch country-toward Harlingen. Twenty-odd miles to the west, on an almost parallel track, U.S. Highway 281 routes traffic from San Antonio and populous points north through and around Alice, down through the chaparral of Jim Wells and Brooks counties toward McAllen. These two highways are undisputed circuits for the transport of illegal drugs, the money that pays for the drug traffic, other items of contraband such as cars stolen in Texas and bound for sale in Mexico, and undocumented Latin American immigrants. The roads are also a goldmine for the local law enforcement officials who patrol them.
Under the Texas Code of Criminal Procedure's Chapter 59, "Forfeiture of Contraband," personal assets seized by officers during the investigation of possible felonies and a wide range of misdemeanors become the property of the municipalities and counties in which the apprehensions occur. As these are civil seizures, the law provides for hearings in state civil court, where confiscations can be challenged and property recovered, but the Legislature did not make it easy. For example, an acquittal or dismissal of charges does not necessarily mean the confiscation will be overturned. Partly because of its proximity to the border, nowhere in Texas has what is commonly known as asset forfeiture been put to greater use than on U.S. 281. Since the passage of the provision in 1989, Chapter 59 seizures have become essential to the operating budgets of cash-strapped rural counties.
In 2006, a Jim Wells County deputy named Ray Escamilla was lauded as the nation's leader in captures of "drug seizure money." Over four years, the deputy sergeant racked up more than $3 million by working the traffic on U.S. 281 and finding reasons to search cars and trucks. His seizures of suspect cash and several vehicles enabled the sheriff's department in the tax-poor county to pay the salaries of additional officers and buy patrol cars, guns, SWAT gear, and four dogs trained to find bombs and drugs.
Into this dynamic rolled Javier Gonzalez on that fall day three years ago.
After Javier left the interstate, the enjoyment he felt driving on U.S. 281 through the bottomland of the Nueces River lasted until they came to the first town, George West. "Young Hispanic officer," Javier recalled. "Whatever I did, he stayed right behind me, then the lights came on, so I pulled over in the lot of this store. He asked for my license, insurance, and registration, then said, 'I stopped you because you don't have a front license plate on your vehicle.'" (Auto dealers and thousands of Texas motorists harbor the erroneous belief that a license plate on the front bumper is optional, and the fiction endures because many officers don't bother to make a stop for that.) "I told him the car belonged to the man I worked for," Javier said, "and showed him that I had the plate inside, on the dashboard. Those Mazdas don't have any place on the bumper where you can screw the plate on. Officer asked me, 'What do you do in Austin?' I told him, and he said, 'You know, it's nice to see a young Hispanic male doing well in the world. You don't have any knives, guns, ammunition, or large amounts of money, do you?'
"So, there it is. I've got to say, 'You know, I do. I've got several thousand dollars to pay for a funeral in a bag back [in the trunk].'
"'You do? Well, let me see it.'"
Javier wasn't required to submit to that search, but he wasn't aware of that. "The officer wrote me a warning ticket for not having the license plate on the front, then he said, 'Have a nice day. You're free to go.' He let me go!"
About an hour of driving passed, interrupted briefly when Javier got hungry and ran into a store to buy some road food. Between Alice and the little town of Premont he picked up another tail -- this one a sedan occupied by two officers with the Jim Wells County Task Force.
Only a few weeks earlier, on October 7, state Sen. Juan "Chuy" Hinojosa had been stopped on that same stretch of U.S. 281 in Jim Wells County and was cited by an officer with the South Texas Specialized Crimes and Narcotics Task Force for swerving on the roadway and driving an SUV with windows that were tinted too dark. The ensuing argument with the officer, in which the senator believes he was a victim of ethnic profiling, led to a crusade by Hinojosa in the 2005 Legislature to force multi-county task forces to accept supervision by the Department of Public Safety. As part of the War on Drugs these multi-county task forces operated independently and were funded by a governor's office pass-through of federal Byrne Justice Assistance Grants. Cosponsored by Democratic state Rep. Terri Hodge of Dallas, Hinojosa's bill-which did not affect Chapter 59 of the criminal code-prohibited the governor's Criminal Justice Division from awarding federal grants to multi-county task forces that were functioning as stand-alone law enforcement agencies. Following the scandal that consumed one of these task forces in the Panhandle, a sordid tale uncovered by Nate Blakeslee (see "Color of Justice," June 23, 2000), Gov. Rick Perry had already eliminated funding for almost all of these region-wide operations in 2006. Recently, the president of the Texas Panhandle Peace Officers Association has called for their return: "It's like chopping off an arm," he complained to the Lubbock Avalanche-Journal.
The regionwide task forces are unlikely to return in anything like their previous form, but the law co-authored by Hinojosa and negotiated by Perry's staff authorizes the governor's office to continue awarding grants approved by the DPS to task forces made up of law enforcement agencies within a single county. Austin's Scott Henson, a widely read criminal justice blogger, says that scuttling most of the regionwide task forces significantly reined in abuse of highway interdictions and Chapter 59 confiscations. "But what happens, especially in South Texas, is that some of these county jurisdictions have come to rely on confiscations as a way to supplement their budgets."
Between 2005 and 2007, according to county reports submitted to the Attorney General's office, agencies along Highway 77-the Kingsville Crime and Narcotics Task Force, the Kleberg County sheriff, a Kleberg County constable and the Kenedy County sheriff-reported total assets from forfeitures and seizures of $4,486,938. They returned only $41,920 to defendants who appealed through the civil process. (The reports to the state do not describe how seized money was spent.)
During the same period, on U.S. 281, the Jim Wells County sheriff and allied police departments of Premont and Orange Grove reported total assets through forfeitures and seizures of $2,027,736. In neighboring Brooks County, south on U.S. 281, the sheriff's department reported assets of $1,777,649. Sharing in this wealth of income was Frank Garza, the 79th district attorney, who serves both Jim Wells and Brooks counties and defends the counties in court. Garza's office saw to it that none of the properties were returned on appeal.
The two Jim Wells County Task Force officers wore their uniforms and the car bore the colors and insignia of the sheriff's department. "I move over to the right to let someone by, and the guy stays right with me," Javier remembers. "I speed up a little to pass up a truck, zoom, he comes around and is right back on my bumper."
The patrol car was equipped with a video camera on the dash. It videotaped everything that occurred between the patrol car and the Mazda, and a fair amount of the conversation was audible, though the traffic was heavy. A burly sergeant named Edward Valadez approached Javier and told him to get out and follow him to the space between the cars. The second officer positioned himself near the patrol car's right headlight. "Where you headed?" Valadez demanded, after looking at Javier's license and insurance. "You don't have a driver's license?" he barked into the car at Clifford. "ID card? You don't have a photo ID or what?"
Valadez paced around the back of the Mazda. "How do you know this guy?" he asked Javier, referring to Clifford, keeping up his interrogation as he looked inside the car. "You're not on probation or anything, are you? Ever been arrested before?" He gestured at a spot on the highway shoulder. "Just stay right there, okay?"
The sergeant told Javier that he'd been stopped because of the missing front license plate. For the next few minutes, Javier tried to explain why the plate was on the dash and who the car belonged to; he kept trying to get Valadez to look at the warning ticket he'd gotten in George West.
Just as the George West officer had done, Valadez asked Javier if he had any knives, guns, ammunition, or large amounts of money. For the second time in an hour, Javier acknowledged having several thousand dollars in the car.
As soon as Javier said that, the officer's change of expression and body language could clearly be seen on the videotape. A backup patrol unit veered around to a halt in front of the Mazda. A uniformed officer hustled out of the car with a look on his face that that did not appear friendly. A stunned Clifford was ordered out of the car and told to spread his legs and put his hands on the Mazda's hood. An officer patted him down.
Valadez walked past Javier stretching a cord that, it turned out, was a leash. The officer came back into view with a dark-ruffed German shepherd. He told Javier to empty his pockets, and when Javier did that, producing a small fold of dollar bills, the dog made a lunge at his hands.
The dog's lunge was a critical component in the officers' assertion that they had probable cause to proceed.
"Good boy," Sergeant Valadez commended the German shepherd, after it had sniffed out the trunk. Someone produced a battery-operated wrench or screwdriver to loosen a panel; the shrill whine rose above eighteen-wheelers driving past.
On the tape, Javier didn't move a step as they proceeded with the search. He looked around, he watched the traffic, he glanced at his watch, he tried to carry on a conversation with the one officer standing nearby. Now and then the officer replied.
Judging from the number of officers who soon prowled the scene, a second backup unit must have pulled up to the rear. Eighteen minutes after Valadez followed the Mazda to a halt on the shoulder and turned on the camera, the posteriors of several hefty officers were arrayed on both sides of the Mazda; the German shepherd squeezed between them to get in on the hunt. When they found the gym bag and opened it, the dog gave the bucks a few sniffs then looked around, panting.
The practice of asset forfeiture has received criticism from both the right and left. "Our focus is not the civil liberties scope of the issue," says Marc Levin, a policy analyst with the Austin-based Texas Public Policy Foundation. "We're concerned more with fiscal integrity and transparency of government. We don't object to these funds being used to help make law enforcement safer and more effective, but we're seeing a tendency in some prosecutors' offices to employ them as slush funds-using them to pay for booze and parties and favors to political cronies."
"There are two large problems with these laws," says Scott Bollock, an attorney with the libertarian-leaning Washington, D.C.-based Institute for Justice. "It's one thing if property is confiscated as a result of criminal convictions. But it's very different when these are civil confiscations. The property owner doesn't have the same protections he or she would have if it were a criminal prosecution. Here the burden of proof is on the individual to get the property back. That's investing way too much power in government. The second large problem is that the system creates a profit incentive for government to try to seize someone's property. The money from these confiscations goes directly back to the police and prosecutors. It invites a kind of legal bounty-hunting."
Yet the practice has become such an important contributor to local government budgets, particularly those of district attorneys, that legislators are loath to change the system. Oscar Garza, a retired colonel of the Jim Wells County Sheriff's Department who lives in Premont, describes a situation that is more complex and nuanced than a cynical shakedown scheme under the guise of the War on Drugs. "In the mid-nineties," Garza says, "working with a DEA officer I made the department's first confiscation under Chapter 59. It was a residence that brought $324,000 into our budget. After that, as we learned more about it, the confiscations started paying for just about everything: our uniforms, firearms, bulletproof vests, cameras, radar and radio systems.
"For example, Jim Wells County budgeted the Department two patrol cars a year. We'd buy six or eight, go through them with just the wear and tear. In these smaller counties there's just not enough tax base and budget. Our sheriff used the confiscation fund to put cameras and officers in our schools. Because of the fund the task force could have 15 to 20 officers working the roads on a given day. And they make some very good interdictions. But they've got to use street smarts, know how to be careful, how to work with their supervisors, and be sure they have witnessing officers and probable cause. They'd better have a little bit of heart. If they get hit with a civil rights suit, that's going right up the chain of command. But it's not just that. Not everyone on the road with currency is a crook! If someone gets charged with money laundering, that electronically goes straight to Austin, and now it's part of that person's criminal record. You can ruin lives. In 60 days they may get their money back through the civil appeal, but they've got to spend $5,000 on an attorney and worry themselves sick trying to get that felony charge expunged from their criminal records. And they're thinking and saying, 'What kind of country is this?'"
In the incident report detailing Javier's stop, titled "Money Seizure," Sergeant Valadez wrote, "While Mr. Gonzalez was talking to me, I noticed a tremble in his voice. When Mr. Gonzalez pulled his Driver's License from his wallet his hands were trembling as he was giving me his license. ... I noticed that both Mr. Gonzalez and Mr. Clifford appeared to be very uneasy and unsure of themselves, when they were speaking about their travel. ... As I attempted to run my K-9 partner Ben III, and as I got my K-9 out of the patrol car, I noticed that he went directly to Mr. Gonzalez and was responding to a narcotic odor emitting from his person."
Javier's hands could not be seen moving on the tape, and whatever he said was inaudible. It could well be that the men were intimidated by the big sergeant and Ben III, the German shepherd, but that two-page report typed two days later would contain the only accusation that either of the two men had been using drugs.
Twenty-three minutes after the sergeant turned on his roof lights, Javier and his friend were handcuffed and taken in separate cars to the Premont fire station, where the suspects were questioned apart from each other and the Mazda was disassembled in an unproductive search for drugs and more money. A Jim Wells County deputy drove to the district clerk's office in Alice with the arresting officer, a lieutenant named Carlo Tanguma, and returned to Premont with a brief notarized affidavit that the money was being seized as contraband.
Javier says that after he was served with this affidavit, one of the officers warned he was going to be charged with felonies including money laundering and possession of contraband, and that his employer's car would be confiscated as well, if Javier did not sign an "agreed judgment" that forfeited all his rights to the $10,032. "I hadn't done anything!" Javier says. "But now I was looking at going to jail. I'd have to make bond, I'd have to pay an attorney, I'd have to come back down there for a trial. So I signed it. The money, I figured they got that, it's gone."
Javier retained an Austin lawyer, who notified the veteran district attorney in Alice, Joe Frank Garza, that they were contesting the confiscation. Garza told him the 30-day deadline for contesting the seizure had expired.
Up to that point, power had resided with the confiscating officers and officials of Jim Wells County. But in pressuring Javier to sign the agreed judgment at the fire station in Premont, the officers of the county task force had made a key mistake. Chapter 59 reads: "A peace officer who seizes property under this chapter may not at the time of seizure request, require or in any manner induce any person, including a person who asserts an interest in or right to the property seized, to execute a document purporting to waive the person's interest in or rights to the property."
Javier's attorney sought help from a veteran litigator in Austin named Malcolm Greenstein. The competing arguments moved back and forth in court for nearly a year, then the same district judge who had signed the agreed judgment told attorneys for Jim Wells County that they could not claim immunity from civil suit, and in August 2006 a San Antonio appeals court affirmed the order. Garza's office then offered to return the $10,032 to Javier but declined to reimburse him for his attorney's fees. At this point the plaintiff didn't just want his money back. He was outraged. He wanted justice-call it vengeance if you want. He wanted damages. Working with another well-known trial lawyer, Joe Crews, Greenstein filed a civil rights suit in federal court in Corpus Christi. At one of the hearings, attorneys retained by Jim Wells County argued that the German shepherd's jerk toward Javier when he pulled dollar bills out of his pocket verified the sergeant's contention that Javier smelled like he'd been handling drugs, giving the officers probable cause to proceed. Judge Janis Jack replied that the canine lunge proved nothing, since virtually all currency in passing through cash registers, wallets, and hands absorbs scents that the dogs are trained to react to. She assigned an arbitrator and told the attorneys to seek a settlement of the case.
This winter and spring, while Javier Gonzalez's civil rights lawsuit worked its way through arbitration, the district attorney of Jim Wells and Brooks counties, Joe Frank Garza, came under fierce political attack in his race for re-election over his management of Chapter 59 asset forfeitures. The accusations of his opponent, Alice attorney Armando Barrera, dovetailed with the broad policy objections articulated by critics like the Texas Public Policy Foundation. Barrera produced audits from the attorney general's office alleging that between 2000 and 2006 Garza directed over $3.2 million in Jim Wells County Task Force forfeiture funds to his office. He alleged the money was used to pay for things like salary bonuses and travel. Chapter 59 confiscations became a key issue in the March election, and Garza, a 16-year incumbent, lost by about 400 votes.
Two weeks after the election, Javier Gonzalez traveled with Greenstein and Crews to Corpus Christi to meet with the court's arbitrator and lawyers representing the other side. Since the incident on U.S. 281 three years ago, Christopher Clifford had moved back to Kentucky and Javier had prospered, opening a state vehicle inspection service on Austin's outskirts called Rain or Shine. Greenstein told his client that in addition to winning damages in a settlement, they hoped to obtain a binding legal agreement that the authorities with a stranglehold on U.S. 281 would not use such tactics against other innocent motorists.
Javier laughed with some bitterness. "You've gotta be kidding! They're never gonna give that up!"
The client was right. Greenstein and Crews won a tacit admission of wrongful detention and confiscation but not a promise to cease and desist, because the suit did not have class-action status-there was only one plaintiff. The settlement contained language by which the county denied all accusations, and in mid-April the commissioners' court agreed to an award of $110,000 and payment of Javier's attorney's fees.
Javier's Aunt Maria died on December 12, 2005, a few weeks after he endured the stop by the Jim Wells County officers. The news of her death came in the middle of the night. Family members in Austin packed in haste and left at once in a Suburban. Javier did not drive. They buried her, as she wished, on the other side. He hasn't been back since. Now that he has won his settlement he could fly or take a long overland route and attend to the last detail nagging at him: a tombstone for her unmarked grave.
Austin-based writer Jan Reid is the author of 10 widely varied books, including The Improbable Rise of Redneck Rock (University of Texas Press), The Bullet Meant for Me (University of Texas Press), and with Lou Dubose, The Hammer (PublicAffairs).
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